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EX-5.1 - OPINION OF FREDRIKSON & BYRON, P.A. - Celcuity Inc.celc_ex51.htm
EX-1.1 - AT MARKET ISSUANCE SALES AGREEMENT - Celcuity Inc.celc_ex11.htm
 
 
 

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 FORM 8-K
 
 
 CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): June 5, 2020
 
Celcuity Inc.
(Exact name of Registrant as Specified in its Charter)
 
  
 
 
 
 
 
Delaware
 
001-38207
 
82-2863566
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(IRS Employer
Identification No.)
 
16305 36th Avenue North; Suite 100 
Minneapolis, Minnesota 55446 
(Address of Principal Executive Offices and Zip Code)
 
(763) 392-0767 
(Registrant’s telephone number, including area code)
 
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
 
Trading Symbol(s)
 
Name of each exchange on which registered
 
Common Stock, $0.001 par value per share
 
CELC
 
The Nasdaq Stock Market LLC
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
 
 

 
 
 
 
 
 
Item 1.01                       
Entry Into a Material Definitive Agreement.
 
On June 5, 2020, Celcuity Inc. (the “Company”), entered into an At Market Issuance Sales Agreement (the “Sales Agreement”) with B. Riley FBR, Inc., as agent (“B. Riley FBR”), pursuant to which the Company may offer and sell, from time to time, through B. Riley FBR, shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), having an aggregate offering price of up to $10,000,000 (the “Shares”).
 
The offer and sale of the Shares will be made pursuant to a shelf registration statement on Form S-3 and the related prospectus (File No. 333-227466) filed by the Company with the Securities and Exchange Commission (the “SEC”) on September 21, 2018 and declared effective by the SEC on October 4, 2018, as supplemented by a prospectus supplement dated June 5, 2020 and filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”).
 
Pursuant to the Sales Agreement, the Company may sell the Shares through B. Riley FBR, and B. Riley FBR may sell the shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act, including sales made by means of ordinary brokers’ transactions, including on The Nasdaq Capital Market, at market prices or as otherwise agreed between the Company and B. Riley FBR. B. Riley FBR will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Shares from time to time, based upon instructions from the Company, including any price or size limits or other customary parameters or conditions the Company may impose.
 
The Company is not obligated to make any sales of the Shares under the Sales Agreement. The offering of Shares pursuant to the Sales Agreement will terminate upon the earliest of (a) the sale of all of the Shares subject to the Sales Agreement or (b) the termination of the Sales Agreement by B. Riley FBR or the Company, as permitted therein.
 
The Company will pay B. Riley FBR a commission equal to 3.0% of the aggregate gross proceeds from each sale of Shares and has agreed to provide B. Riley FBR with customary indemnification and contribution rights. The Company will also reimburse B. Riley FBR for certain specified expenses in connection with entering into the Sales Agreement. The Sales Agreement contains customary representations and warranties and conditions to the placements of the Shares pursuant thereto.
 
The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
 
The legal opinion, including the related consent, of Fredrikson & Byron, P.A., counsel to the Company, relating to the issuance and sale of the Shares, is filed as Exhibit 5.1 hereto.
 
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Common Stock discussed herein, nor shall there be any offer, solicitation, or sale of common stock in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state
 
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits

At Market Issuance Sales Agreement, dated June 5, 2020, between Celcuity Inc. and B. Riley FBR, Inc.

Opinion of Fredrikson & Byron, P.A.

Consent of Fredrikson & Byron P.A. (included in Exhibit 5.1)
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
CELCUITY INC.
 
 
 
 
 
Date: June 5, 2020
By:  
/s/  Brian F. Sullivan
 
 
 
Brian F. Sullivan
 
 
 
Chief Executive Officer