As filed with the Securities and Exchange Commission
on July 9, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACURX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
82-3733567 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
259 Liberty Avenue
Staten Island, New York 10305
(917) 533-1469
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
David P. Luci
President and Chief Executive Officer
Acurx Pharmaceuticals, Inc.
259 Liberty Avenue
Staten Island, New York 10305
(917) 533-1469
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Ivan K. Blumenthal
Jeffrey D. Cohan
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
919 Third Avenue
New York, New York 10022
212-935-3000
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date
of this registration statement as determined by the registrant.
If the only securities being
registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to
register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ |
Accelerated filer ¨ |
Non-accelerated filer x |
Smaller reporting company x |
| |
|
|
Emerging growth company x |
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 7(a)(2)(B) of Securities Act. ¨
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION
STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
Explanatory Note
This registration statement is a replacement
registration statement being filed pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended (the “Securities Act”),
with respect to securities that remain unsold under the registrant’s Registration Statement on Form S-3 (File No. 333-265956),
originally declared effective on July 11, 2022 (the “Prior Registration Statement”). Pursuant to Rule 415(a)(5)(ii) under
the Securities Act, by filing this registration statement on Form S-3, the Company may issue and sell securities covered by the Prior
Registration Statement until the earlier of (i) the effective date of this registration statement and (ii) January 7, 2026, which is
180 days after the third-year anniversary of the original effective date of the Prior Registration Statement. Pursuant to Rule 415(a)(6)
under the Securities Act, the offering of securities under the Prior Registration Statement will be deemed terminated as of the date
of effectiveness of this registration statement.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND
MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 9,
2025
PROSPECTUS
Acurx Pharmaceuticals, Inc.
$50,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
This prospectus will allow us to issue, from
time to time at prices and on terms to be determined at or prior to the time of the offering, up to $50,000,000 of any combination of
the securities described in this prospectus, either individually or in units. We may also offer common stock or preferred stock upon
conversion of or exchange for the debt securities; common stock upon conversion of or exchange for preferred stock; or common stock,
preferred stock or debt securities upon the exercise of warrants or rights.
This prospectus describes the general terms of
these securities and the general manner in which these securities will be offered. We will provide you with the specific terms of any
offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these
securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus
and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement,
carefully before you invest.
Our securities may be sold directly by us to
you, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods
of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and in the applicable prospectus
supplement. If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus is being delivered,
the names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth
in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale
will also be set forth in a prospectus supplement.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “ACXP.” On July 8, 2025, the last reported sale price of our common stock was $0.4885 per share.
You are urged to obtain current market quotations of our common stock. Prospective purchasers of our securities are urged to obtain current
information as to the market prices of our securities, where applicable. As of the date of this prospectus, we have no preferred stock,
debt securities, warrants, rights or units listed or quoted on any securities exchange or other nationally recognized trading market.
The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on The Nasdaq Capital
Market or any securities market or other securities exchange of the securities covered by the prospectus supplement.
As of the date of this prospectus, the aggregate market value of our
outstanding common stock held by non-affiliates, or the public float, was $21.9 million, which was calculated based on 26,654,929 shares
of our outstanding common stock held by non-affiliates at a price of $0.8207 per share, the closing price of our common stock on June
17, 2025. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities pursuant to this prospectus with a value
of more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period, so long as the
aggregate market value of our common stock held by non-affiliates is less than $75,000,000. During the 12 calendar months prior to,
and including, the date of this prospectus, we have sold $5,478,786 of securities pursuant to General Instruction I.B.6 of Form S-3.
Investing in our securities involves a high
degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained
in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that
are incorporated by reference into this prospectus as described on page 4 of this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2025.
TABLE OF CONTENTS
Page
| ABOUT THIS PROSPECTUS |
1 |
| PROSPECTUS SUMMARY |
2 |
| RISK FACTORS |
4 |
| SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS |
5 |
| USE OF PROCEEDS |
7 |
| PLAN OF DISTRIBUTION |
8 |
| THE SECURITIES WE MAY OFFER |
11 |
| DESCRIPTION OF CAPITAL STOCK |
12 |
| DESCRIPTION OF DEBT SECURITIES |
15 |
| DESCRIPTION OF WARRANTS |
20 |
| DESCRIPTION OF RIGHTS |
21 |
| DESCRIPTION OF UNITS |
22 |
| LEGAL MATTERS |
23 |
| EXPERTS |
23 |
| WHERE YOU CAN FIND MORE INFORMATION |
23 |
| INCORPORATION OF DOCUMENTS BY REFERENCE |
24 |
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under this
shelf registration process, we may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants
or rights to purchase any such securities, either individually or in units, in one or more offerings, with a total value of up to $50,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities
under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
This prospectus does not contain all of the information
included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the
registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained or incorporated
by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered and described in this
prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated
by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You
should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference
and the additional information under the heading “Where You Can Find More Information” before making an investment decision.
You should rely only on the information we have
provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is
authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not
rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only
under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any
prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated herein
by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
This prospectus may not be used to consummate
sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus
supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless the context otherwise requires, “Acurx,”
“ACXP,” “the Company,” “we,” “us,” “our” and similar terms refer to Acurx
Pharmaceuticals, Inc.
PROSPECTUS SUMMARY
The following is a summary of what we believe
to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire
prospectus, including the more detailed audited and unaudited financial statements, notes to the financial statements and other information
incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities
involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual
and quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements and the documents
incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business,
operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Overview
We are a late-stage biopharmaceutical company
focused on developing a new class of small molecule antibiotics for difficult-to-treat bacterial infections. Our approach is to develop
antibiotic candidates with a Gram-positive selective spectrum (“GPSS®”) that block the active site of the Gram positive
specific bacterial enzyme deoxyribonucleic acid (“DNA”) polymerase IIIC (“pol IIIC”), inhibiting DNA replication
and leading to Gram-positive bacterial cell death. Our research and development (“R&D”) pipeline includes antibiotic
product candidates that target Gram-positive bacteria, including Clostridioides difficile, methicillin-resistant Staphylococcus aureus
(“MRSA”), vancomycin resistant Enterococcus (“VRE”) and drug-resistant Streptococcus pneumoniae (“DRSP”).
These bacterial targets are listed as priority
pathogens by the World Health Organization (“WHO”), the United States (“U.S.”) Centers for Disease Control and
Prevention (“CDC”) and the U.S. Food and Drug Administration (“FDA”). Priority pathogens are those which require
new antibiotics to address the worldwide crisis of antimicrobial resistance (“AMR”) as identified by the WHO, CDC and FDA.
Emerging Growth Company
We are an “emerging growth company”,
as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”). As an emerging growth company, we are eligible, and
have elected, to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies
that are not emerging growth companies. These include, but are not limited to, not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002 and reduced disclosure obligations regarding executive compensation
(to the extent applicable to a foreign private issuer).
We could remain an emerging growth company until
the last day of our fiscal year following the fifth anniversary of the consummation of our initial public offering. However, if our annual
gross revenue is $1.235 billion or more, or our non-convertible debt issued within a three year period exceeds $1 billion,
or the market value of our shares of common stock that are held by non-affiliates exceeds $700 million on the last day of the second
fiscal quarter of any given fiscal year, we would cease to be an emerging growth company as of the last day of that fiscal year.
Smaller Reporting Company
We are also currently a “smaller reporting
company,” meaning that we are not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company
that is not a smaller reporting company, and have a public float of less than $250 million or annual revenues of less than $100 million
during the most recently completed fiscal year. In the event that we are still considered a “smaller reporting company,”
at such time as we cease being an “emerging growth company,” the disclosure we will be required to provide in our SEC filings
will increase, but will still be less than it would be if we were not considered either an “emerging growth company” or a
“smaller reporting company.” Specifically, similar to “emerging growth companies,” “smaller reporting companies”
are able to provide simplified executive compensation disclosures in their filings; are exempt from the provisions of Section 404(b)
of the Sarbanes-Oxley Act requiring that independent registered public accounting firms provide an attestation report on the effectiveness
of internal control over financial reporting; and have certain other decreased disclosure obligations in their SEC filings, including,
among other things, only being required to provide two years of audited financial statements in annual reports. Decreased disclosures
in our SEC filings due to our status as an “emerging growth company” or “smaller reporting company” may make
it harder for investors to analyze our results of operations and financial prospects.
Risks Associated with Our Business
Our business and our ability to implement our
business strategy are subject to numerous risks, as more fully described in the section entitled “Risk Factors” in this prospectus
and in our Annual Report on Form 10-K for the fiscal year ended December 31, 2024 and our Quarterly Report on Form 10-Q for the period ended March 31, 2025 incorporated herein by reference. You should read these risks before you
invest in our securities. We may be unable, for many reasons, including those that are beyond our control, to implement our business
strategy.
Corporate Information and History
We were organized as a limited liability company
in the State of Delaware in July 2017 and we commenced operations in February 2018 upon acquiring the rights to our lead antibiotic
product candidate from GLSynthesis, Inc. Our principal executive offices are located at 259 Liberty Avenue, Staten Island, NY 10305 and
our telephone number is (917) 533-1469. Our website address is www.acurxpharma.com. The information contained on, or that can be accessed
through, our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive
textual reference. On June 23, 2021, Acurx Pharmaceuticals, LLC converted from a Delaware limited liability company into a Delaware
corporation pursuant to a statutory conversion, and changed its name to Acurx Pharmaceuticals, Inc.
RISK FACTORS
Investing in our securities involves significant
risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an
investment in Acurx. Prior to making a decision about investing in our securities, you should carefully consider the specific factors
discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other information
contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You
should also consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors” included in our
most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports
on Form 8-K that we have filed with the SEC, all of which are incorporated herein by reference, and which may be amended, supplemented
or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are
not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also
affect our operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that relate to future events or
our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results,
levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Words such as, but not limited to, “believe,” “expect,”
“anticipate,” “estimate,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “targets,” “likely,” “will,” “would,” “could,”
“should,” “continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are
intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although
we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference
in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown
risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed
or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our most recent Annual Report
on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, entitled
“Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and
Results of Operations,” as well as other sections in this prospectus and the other documents or reports incorporated by reference
in this prospectus, discuss some of the factors that could contribute to these differences. These forward-looking statements include,
among other things, statements about:
| · | our ability to obtain
and maintain regulatory approval of ibezapolstat and/or our other product candidates; |
| · | our ability to successfully
commercialize and market ibezapolstat and/or our other product candidates, if approved; |
| · | our ability to contract
with third-party suppliers, manufacturers and other service providers and their ability to
perform adequately; |
| · | the potential market
size, opportunity and growth potential for ibezapolstat and/or our other product candidates,
if approved; |
| · | our ability to build
our own sales and marketing capabilities, or seek collaborative partners, to commercialize
ibezapolstat and/or our other product candidates, if approved; |
| · | our ability to obtain
funding for our operations; |
| · | the initiation, timing,
progress and results of our preclinical studies and clinical trials, and our research and
development programs; |
| · | the timing of anticipated
regulatory filings; |
| · | the timing of availability
of data from our clinical trials; |
| · | the accuracy of our
estimates regarding expenses, capital requirements and needs for additional financing; |
| · | our ability to retain
the continued service of our key professionals and to identify, hire and retain additional
qualified professionals; |
| · | our ability to advance
product candidates into, and successfully complete, clinical trials; |
| · | our ability to recruit
and enroll suitable patients in our clinical trials and the timing of enrollment; |
| · | the timing or likelihood
of the accomplishment of various scientific, clinical, regulatory and other product development
objectives; |
| · | the pricing and reimbursement
of our product candidates, if approved; |
| · | the rate and degree
of market acceptance of our product candidates, if approved; |
| · | the implementation
of our business model and strategic plans for our business, product candidates and technology; |
| · | the scope of protection
we are able to establish and maintain for intellectual property rights covering our product
candidates and technology; |
| · | developments relating
to our competitors and our industry; |
| · | the development of
major public health concerns, including the coronavirus outbreak or other pandemics arising
globally, and the future impact of it and COVID-19 on our clinical trials, business operations
and funding requirements; |
| · | the effects of the
recent disruptions to and volatility in the credit and financial markets in the United States
and worldwide from the conflict between Russia and Ukraine as well as the conflict in the
Middle East between Israel and Hamas; |
| · | the volatility of the
price of our common stock; |
| · | our financial performance; |
| · | our ability to comply
with the listing requirements of The Nasdaq Capital Market and any delisting or potential
delisting of shares of our common stock; and |
| · | other factors described
from time to time in documents that we file with the SEC. |
We may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements
we make. We have included important cautionary statements in this prospectus and in the documents incorporated by reference in this prospectus,
particularly in the “Risk Factors” section, that we believe could cause actual results or events to differ materially from
the forward-looking statements that we make. For a summary of such factors, please refer to the section entitled “Risk Factors”
in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under “Risk Factors” contained
in any supplements to this prospectus and in our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent
Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, as well as any amendments thereto, as filed with the SEC and which
are incorporated herein by reference. The information contained in this document is believed to be current as of the date of this document.
We do not intend to update any of the forward-looking statements after the date of this document to conform these statements to actual
results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties,
the results and events discussed in the forward-looking statements contained in this prospectus or in any document incorporated herein
by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only
as of the date of this prospectus or the date of the document incorporated by reference in this prospectus. We are not under any obligation,
and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information,
future events or otherwise. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly
qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus for general corporate purposes,
including, but not limited to, clinical trials, research and development activities, working capital, capital expenditures, investments,
acquisitions, should we choose to pursue any, and collaborations. We have not determined the amounts we plan to spend on any of the areas
listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds,
if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net
proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or
apply them to the reduction of short-term indebtedness.
PLAN OF DISTRIBUTION
Initial Offering and Sale of Securities
Unless otherwise set forth in a prospectus supplement
accompanying this prospectus, we may sell the securities being offered hereby, from time to time, by one or more of the following methods:
| · | to or through underwriting
syndicates represented by managing underwriters; |
| · | through one or more
underwriters without a syndicate for them to offer and sell to the public; |
| · | through dealers or
agents; and |
| · | to investors directly
in negotiated sales or in competitively bid transactions. |
Offerings of securities covered by this prospectus
also may be made into an existing trading market for those securities in transactions at other than a fixed price, either:
| · | on or through the
facilities of the Nasdaq Capital Market or any other securities exchange or quotation or
trading service on which those securities may be listed, quoted, or traded at the time of
sale; and/or |
| · | to or through a market
maker other than on the securities exchanges or quotation or trading services set forth above. |
Those at-the-market offerings, if any, will be
conducted by underwriters acting as principal or agent of the Company, who may also be third-party sellers of securities as described
above. The prospectus supplement with respect to the offered securities will set forth the terms of the offering of the offered securities,
including:
| · | the name or names
of any underwriters, dealers or agents; |
| · | the purchase price
of the offered securities and the proceeds to us from such sale; |
| · | any underwriting discounts
and commissions or agency fees and other items constituting underwriters’ or agents’
compensation; |
| · | any initial public
offering price and any discounts or concessions allowed or reallowed or paid to dealers; |
| · | any securities exchange
on which such offered securities may be listed; and |
| · | any underwriter, agent
or dealer involved in the offer and sale of any series of the securities. |
The distribution of the securities may be effected from time to time
in one or more transactions:
| · | at fixed prices, which
may be changed; |
| · | at market prices prevailing
at the time of the sale; |
| · | at varying prices
determined at the time of sale; or |
Each prospectus supplement will set forth the
manner and terms of an offering of securities including:
| · | whether that offering
is being made to underwriters, through agents or directly to the public; |
| · | the rules and procedures
for any auction or bidding process, if used; |
| · | the securities’
purchase price or initial public offering price; and |
| · | the proceeds we anticipate
from the sale of the securities, if any. |
In addition, we may enter into derivative or
hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
The applicable prospectus supplement may indicate, in connection with such a transaction, that the third parties may sell securities
covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third party may use securities pledged
by us or borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions.
We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell
the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and
the applicable prospectus supplement.
Sales Through Underwriters
If underwriters are used in the sale of some
or all of the securities covered by this prospectus, the underwriters will acquire the securities for their own account. The underwriters
may resell the securities, either directly to the public or to securities dealers, at various times in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to certain conditions. Unless indicated otherwise in a prospectus supplement,
the underwriters will be obligated to purchase all the securities of the series offered if any of the securities are purchased.
Any public offering price and any concessions
allowed or reallowed to dealers may be changed intermittently.
Sales Through Agents
Unless otherwise indicated in the applicable
prospectus supplement, when securities are sold through an agent, the designated agent will agree, for the period of its appointment
as agent, to use specified efforts to sell the securities for our account and will receive commissions from us as will be set forth in
the applicable prospectus supplement.
Securities bought in accordance with a redemption
or repayment under their terms also may be offered and sold, if so indicated in the applicable prospectus supplement, in connection with
a remarketing by one or more firms acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified
and the terms of its agreement, if any, with us and its compensation will be described in the prospectus supplement. Remarketing firms
may be deemed to be underwriters in connection with the securities remarketed by them.
If so indicated in the applicable prospectus
supplement, we may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase securities
at a price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a future
date specified in the prospectus supplement. These contracts will be subject only to those conditions set forth in the applicable prospectus
supplement, and the prospectus supplement will set forth the commissions payable for solicitation of these contracts.
Direct Sales
We may also sell offered securities directly
to institutional investors or others. In this case, no underwriters or agents would be involved. The terms of such sales will be described
in the applicable prospectus supplement.
General Information
Broker-dealers, agents or underwriters may receive
compensation in the form of discounts, concessions or commissions from us and/or the purchasers of securities for whom such broker-dealers,
agents or underwriters may act as agents or to whom they sell as principal, or both. This compensation to a particular broker-dealer
might be in excess of customary commissions.
Underwriters, dealers and agents that participate
in any distribution of the offered securities may be deemed “underwriters” within the meaning of the Securities Act, so any
discounts or commissions they receive in connection with the distribution may be deemed to be underwriting compensation. Those underwriters
and agents may be entitled, under their agreements with us, to indemnification by us against certain civil liabilities, including liabilities
under the Securities Act, or to contribution by us to payments that they may be required to make in respect of those civil liabilities.
Certain of those underwriters or agents may be customers of, engage in transactions with, or perform services for, us or our affiliates
in the ordinary course of business. We will identify any underwriters or agents, and describe their compensation, in a prospectus supplement.
Any institutional investors or others that purchase offered securities directly, and then resell the securities, may be deemed to be
underwriters, and any discounts or commissions received by them from us and any profit on the resale of the securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
We will file a supplement to this prospectus,
if required, pursuant to Rule 424(b) under the Securities Act, if we enter into any material arrangement with a broker, dealer,
agent or underwriter for the sale of securities through a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer.
Such prospectus supplement will disclose:
| · | the name of any participating
broker, dealer, agent or underwriter; |
| · | the number and type
of securities involved; |
| · | the price at which
such securities were sold; |
| · | any securities exchanges
on which such securities may be listed; |
| · | the commissions paid
or discounts or concessions allowed to any such broker, dealer, agent or underwriter, where
applicable; and |
| · | other facts material
to the transaction. |
In order to facilitate the offering of certain
securities under this prospectus or an applicable prospectus supplement, certain persons participating in the offering of those securities
may engage in transactions that stabilize, maintain or otherwise affect the price of those securities during and after the offering of
those securities. Specifically, if the applicable prospectus supplement permits, the underwriters of those securities may over-allot
or otherwise create a short position in those securities for their own account by selling more of those securities than have been sold
to them by us and may elect to cover any such short position by purchasing those securities in the open market.
In addition, the underwriters may stabilize or
maintain the price of those securities by bidding for or purchasing those securities in the open market and may impose penalty bids,
under which selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed if securities
previously distributed in the offering are repurchased in connection with stabilization transactions or otherwise. The effect of these
transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in
the open market. The imposition of a penalty bid may also affect the price of securities to the extent that it discourages resales of
the securities. No representation is made as to the magnitude or effect of any such stabilization or other transactions. Such transactions,
if commenced, may be discontinued at any time.
In order to comply with the securities laws of
certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed brokers or dealers.
In addition, in certain states the securities may not be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
Rule 15c6-1 under the Exchange Act generally
requires that trades in the secondary market settle in one business day unless the parties to any such trade expressly agree otherwise.
Your prospectus supplement may provide that the original issue date for your securities may be more than one scheduled business day after
the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the first business
day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are
expected to settle in more than one scheduled business day after the trade date for your securities, to make alternative settlement arrangements
to prevent a failed settlement.
This prospectus, any applicable prospectus supplement
and any applicable pricing supplement in electronic format may be made available on the Internet sites of, or through other online services
maintained by, us and/or one or more of the agents and/or dealers participating in an offering of securities, or by their affiliates.
In those cases, prospective investors may be able to view offering terms online and, depending upon the particular agent or dealer, prospective
investors may be allowed to place orders online.
Other than this prospectus, any applicable prospectus
supplement and any applicable pricing supplement in electronic format, the information on our website or the website of any agent or
dealer, and any information contained in any other website maintained by any agent or dealer:
| · | is not part of this
prospectus, any applicable prospectus supplement or any applicable pricing supplement or
the registration statement of which they form a part; |
| · | has not been approved
or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except,
in each case, with respect to the respective website maintained by such entity; and |
| · | should not be relied
upon by investors. |
There can be no assurance that we will sell all
or any of the securities offered by this prospectus.
This prospectus may also be used in connection
with any issuance of common stock or preferred stock upon exercise of a warrant if such issuance is not exempt from the registration
requirements of the Securities Act.
In addition, we may issue the securities as a
dividend or distribution or in a subscription rights offering to our existing securityholders. In some cases, we or dealers acting with
us or on our behalf may also purchase securities and reoffer them to the public by one or more of the methods described above. This prospectus
may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable
prospectus supplement.
THE SECURITIES WE MAY OFFER
General
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize all of the material terms and provisions of the various
types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement. If we indicate in the applicable prospectus supplement, the terms of the
securities may differ from the terms we have summarized below. We may also include in the prospectus supplement information about material
United States federal income tax considerations relating to the securities, and the securities exchange, if any, on which the securities
will be listed.
We may sell from time to time, in one or more
offerings:
| · | warrants to purchase
shares of common stock, preferred stock and/or debt securities; |
| · | rights to purchase
shares of common stock, preferred stock or debt securities; and |
| · | units consisting of
any combination of the securities listed above. |
In this prospectus, we refer to the common stock,
preferred stock, debt securities, warrants, rights and units collectively as “securities.” The total dollar amount of all
securities that we may sell pursuant to this prospectus will not exceed $50,000,000.
If we issue debt securities at a discount from
their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities issued under this
prospectus, we will treat the initial offering price of the debt securities as the total original principal amount of the debt securities.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock
and provisions of our certificate of incorporation and bylaws are summaries. You should also refer to the certificate of incorporation
and the bylaws, which are filed as exhibits to the registration statement of which this prospectus is part.
General
We are authorized to issue up to 200,000,000
shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share. Our board of
directors may establish the rights and preferences of the preferred stock from time to time.
As of June 30, 2025, we had 29,407,041 shares
of common stock outstanding and no shares of preferred stock outstanding.
Common Stock
Voting Rights.
The holders of our common stock are entitled
to one vote for each share held of record on all matters on which the holders are entitled to vote (or consent to).
Dividends and Liquidation Rights.
The holders of our common stock are entitled
to receive, ratably, dividends only if, when and as declared by our board of directors out of funds legally available therefor and after
provision is made for each class of capital stock having preference over the common stock.
Liquidation Rights
In the event of our liquidation, dissolution
or winding-up, the holders of our common stock may be entitled to share, ratably, in all assets remaining available for distribution
after payment or provision for payment of all debts and other liabilities and subject to the rights of each class or series of capital
stock having preference over, or right to participate with, the common stock.
Preemptive and Similar Rights.
The holders of our common stock have no preemptive
or similar rights.
Preferred Stock
Our board of directors is authorized, without
action by the stockholders, to designate and issue up to an aggregate of 10,000,000 shares of preferred stock in one or more series.
Our board of directors is authorized to designate the rights, preferences and privileges of the shares of each series and any of its
qualifications, limitations or restrictions. Our board of directors is able to authorize the issuance of preferred stock with voting
or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred
stock, while providing flexibility in connection with possible future financings and acquisitions and other corporate purposes could,
under certain circumstances, have the effect of restricting dividends on our common stock, diluting the voting power of our common stock,
impairing the liquidation rights of our common stock, or delaying, deferring or preventing a change in control of the Company, which
might harm the market price of our common stock. See also “Anti-Takeover Provisions” below.
If we offer a specific class or series of preferred
stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement for such offering and will
file a copy of the certificate establishing the terms of the preferred stock with the SEC. The preferred stock offered by this prospectus,
when issued, will not have, or be subject to, any preemptive or similar rights.
The transfer agent and registrar for any series
or class of preferred stock will be set forth in each applicable prospectus supplement.
Anti-Takeover Provisions
Our certificate of incorporation and bylaws contain
provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are
summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement
of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to discourage
acquisitions that some stockholders may favor.
Authorized but unissued shares.
The authorized but unissued shares of our common
stock and our preferred stock are available for future issuance without stockholder approval, subject to the requirements of any national
securities exchange on which our common stock is listed, should we so qualify for listing. These additional shares may be used for a
variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved
common stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means of a proxy contest,
tender offer, merger or otherwise.
Elimination of Stockholder Action by Written Consent.
Our certificate of incorporation eliminates the
right of stockholders to act by written consent without a meeting.
Special meetings of stockholders.
Our certificate of incorporation and bylaws provide
that, except as otherwise required by law or provided by the resolution or resolutions adopted by our board of directors designating
the rights, powers and preferences of any series of preferred stock, special meetings of our stockholders may be called only by (a) our
board of directors pursuant to a resolution approved by a majority of the total number of our directors that we would have if there were
no vacancies or (b) the chair of our board of directors, and any power of our stockholders to call a special meeting is specifically
denied.
Advance notice requirements for stockholder proposals and director
nominations.
Our bylaws provide for an advance notice procedure
for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election
to our board of directors. In order for any matter to be “properly brought” before a meeting, a stockholder must comply with
advance notice and duration of ownership requirements and provide us with certain information. Stockholders at an annual meeting may
only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our
board of directors or by a qualified stockholder of record on the record date for the meeting, who is entitled to vote at the meeting
and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business
before the meeting. These provisions could have the effect of delaying stockholder actions that are favored by the holders of a majority
of our outstanding voting securities until the next stockholder meeting.
Amendment of Certificate of Incorporation or Bylaws.
The DGCL provides generally that the affirmative
vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation,
unless a corporation’s certificate of incorporation requires a greater percentage. Our certificate of incorporation provides that
certain provisions of our certificate of incorporation (namely, those provisions relating to (i) directors; (ii) limitation of director
liability, indemnification and advancement of expenses and renunciation of corporate opportunities; (iii) meetings of stockholders; and
(iv) certain amendments to our certificate of incorporation and bylaws) may not be altered, amended or repealed in any respect (including
by merger, consolidation or otherwise), nor may any provision inconsistent therewith be adopted, unless such alteration, amendment, repeal
or adoption is approved by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662∕3%) of the voting
power of all of our then-outstanding shares then entitled to vote generally in an election of directors, voting together as a single
class. Our certificate of incorporation and bylaws also provide that approval of stockholders holding sixty-six and two-thirds percent
(662∕3%) of the voting power of all of our then-outstanding shares entitled to vote generally in an election of directors, voting
together as a single class, is required for stockholders to make, alter, amend, or repeal any provision of our bylaws. Our board of directors
retains the right to alter, amend or repeal our bylaws.
Classified Board of Directors.
Our certificate of incorporation provides for
a classified board of directors consisting of three classes of approximately equal size, each serving staggered three-year terms. Only
the directors in one class will be subject to election by a plurality of the votes cast at each annual meeting of stockholders, with
the directors in the other classes continuing for the remainder of their respective three-year terms. Stockholders do not have the ability
to cumulate votes for the election of directors.
Limitations on Liability and Indemnification of Officers and Directors
Our certificate of incorporation and bylaws provides
indemnification for our directors and officers to the fullest extent permitted by the DGCL. We have entered into Indemnification Agreements
with each of our directors that may be, in some cases, broader than the specific indemnification provisions contained under the DGCL.
In addition, as permitted by the DGCL, our certificate of incorporation and bylaws includes provisions that eliminate the personal liability
of our directors for monetary damages resulting from breaches of certain fiduciary duties as a director. The effect of this provision
is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director for breach
of fiduciary duties as a director. These provisions may be held not to be enforceable for violations of the federal securities laws of
the United States.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203
of the DGCL. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder,
unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things,
a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. An “interested
stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination
of interested stockholder status, 15% or more of the corporation’s voting stock.
Under Section 203, a business combination between
a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
| · | before the stockholder
became interested, the board of directors approved either the business combination or the
transaction that resulted in the stockholder becoming an interested stockholder; |
| · | upon consummation
of the transaction that resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding for purposes of determining the voting stock
outstanding, shares owned by persons who are directors and also officers, and employee stock
plans, in some instances; or |
| · | at or after the time
the stockholder became interested, the business combination was approved by the board of
directors of the corporation and authorized at an annual or special meeting of the stockholders
by the affirmative vote of at least two-thirds of the outstanding voting stock that is not
owned by the interested stockholder. |
A Delaware corporation may “opt out”
of these provisions with an express provision in its original certificate of incorporation or an express provision in its amended and
restated certificate of incorporation or by-laws resulting from a stockholders’ amendment approved by at least a majority of the
outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in control attempts
of us may be discouraged or prevented.
Stock Exchange Listing
Our common stock is listed for quotation on The
Nasdaq Capital Market under the symbol “ACXP.”
Transfer Agent and Registrar
The transfer agent and registrar of our common
stock is VStock Transfer, LLC. They are located at 18 Lafayette Place, Woodmere, New York 11598. Their telephone number is (212) 828-8436.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms
and provisions of debt securities that we may offer. The debt securities may be issued pursuant to, in the case of senior debt securities,
a senior indenture, and in the case of subordinated debt securities, a subordinated indenture, in each case in the forms filed as exhibits
to this registration statement, which we refer to as the “indentures.” The indentures will be entered into between us and
a trustee to be named prior to the issuance of any debt securities, which we refer to as the “trustee.” The indentures will
not limit the amount of debt securities that can be issued thereunder and will provide that the debt securities may be issued from time
to time in one or more series pursuant to the terms of one or more securities resolutions or supplemental indentures creating such series.
We have summarized below the material provisions
of the indentures and the debt securities or indicated which material provisions will be described in the related prospectus supplement
for any offering of debt securities. These descriptions are only summaries, and you should refer to the relevant indenture for the particular
offering of debt securities itself which will describe completely the terms and definitions of the offered debt securities and contain
additional information about the debt securities.
All references in this section, “Description
of Debt Securities,” to “Acurx,” the “Company”, “we”, “us”, “our”, the
“registrant” or similar words are solely to Acurx Pharmaceuticals, Inc., and not to its subsidiaries.
Terms
When we offer to sell a particular series of debt securities, we will
describe the specific terms of the securities in a prospectus supplement. The prospectus supplement will set forth the following terms,
as applicable, of the debt securities offered thereby:
| · | the designation, aggregate
principal amount, currency or composite currency and denominations; |
| · | the price at which
such debt securities will be issued and, if an index formula or other method is used, the
method for determining amounts of principal or interest; |
| · | the maturity date
and other dates, if any, on which principal will be payable; |
| · | whether or not the
debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | whether the debt securities
rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof,
and the terms of any subordination; |
| · | the interest rate
(which may be fixed or variable), if any; |
| · | the date or dates
from which interest will accrue and on which interest will be payable, and the record dates
for the payment of interest; |
| · | the manner of paying
principal and interest; |
| · | the place or places
where principal and interest will be payable; |
| · | the terms of any mandatory
or optional redemption by us or any third party including any sinking fund; |
| · | the terms of any conversion
or exchange; |
| · | the terms of any redemption
at the option of holders or put by the holders; |
| · | any tax indemnity
provisions; |
| · | if the debt securities
provide that payments of principal or interest may be made in a currency other than that
in which the debt securities are denominated, the manner for determining such payments; |
| · | the portion of principal
payable upon acceleration of a Discounted Debt Security (as defined below); |
| · | whether and upon what
terms debt securities may be defeased; |
| · | any events of default
or covenants in addition to or in lieu of those set forth in the indentures; |
| · | provisions for electronic
issuance of debt securities or for the issuance of debt securities in uncertificated form;
and |
| · | any additional provisions
or other special terms not inconsistent with the provisions of the indentures, including
any terms that may be required or advisable under United States or other applicable laws
or regulations, or advisable in connection with the marketing of the debt securities. |
Debt securities of any series may be issued as
registered debt securities or uncertificated debt securities, in such denominations as specified in the terms of the series.
Securities may be issued under the indentures
as Discounted Debt Securities to be offered and sold at a substantial discount from the principal amount thereof. Special United States
federal income tax and other considerations applicable thereto will be described in the prospectus supplement relating to such Discounted
Debt Securities. “Discounted Debt Security” means a security where the amount of principal due upon acceleration is less
than the stated principal amount.
We are not obligated to issue all debt securities
of one series at the same time and, unless otherwise provided in the prospectus supplement, we may reopen a series, without the consent
of the holders of the debt securities of that series, for the issuance of additional debt securities of that series. Additional debt
securities of a particular series will have the same terms and conditions as outstanding debt securities of such series, except for the
date of original issuance and the offering price, and will be consolidated with, and form a single series with, such outstanding debt
securities.
Ranking
The senior debt securities will rank equally
with all of our other senior and unsubordinated debt. Our secured debt, if any, will be effectively senior to the senior debt securities
to the extent of the value of the assets securing such debt. The subordinated debt securities will be subordinate and junior in right
of payment to all of our present and future senior indebtedness to the extent and in the manner described in the prospectus supplement
and as set forth in the board resolution, officer’s certificate or supplemental indenture relating to such offering.
We have only a stockholder’s claim on the
assets of our subsidiaries. This stockholder’s claim is junior to the claims that creditors of our subsidiaries have against our
subsidiaries. Holders of our debt securities will be our creditors and not creditors of any of our subsidiaries. As a result, all the
existing and future liabilities of our subsidiaries, including any claims of their creditors, will effectively be senior to the debt
securities with respect to the assets of our subsidiaries. In addition, to the extent that we issue any secured debt, the debt securities
will be effectively subordinated to such secured debt to the extent of the value of the assets securing such secured debt.
The debt securities will be obligations exclusively
of Acurx Pharmaceuticals, Inc. To the extent that our ability to service our debt, including the debt securities, may be dependent upon
the earnings of our subsidiaries, our ability to do so will be dependent on the ability of our subsidiaries to distribute those earnings
to us as dividends, loans or other payments.
Certain Covenants
Any covenants that may apply to a particular
series of debt securities will be described in the prospectus supplement relating thereto.
Successor Obligor
The indentures provide that, unless otherwise
specified in the securities resolution or supplemental indenture establishing a series of debt securities, we shall not consolidate with
or merge into, or transfer all or substantially all of our assets to, any person in any transaction in which we are not the survivor,
unless:
| · | the person is organized
under the laws of the United States or a jurisdiction within the United States; |
| · | the person assumes
by supplemental indenture all of our obligations under the relevant indenture, the debt securities
and any coupons; |
| · | immediately after
the transaction no Default (as defined below) exists; and |
| · | we deliver to the
trustee an officers’ certificate and opinion of counsel stating that the transaction
complies with the foregoing requirements and that all conditions precedent provided for in
the indenture relating to the transaction have been complied with. |
In such event, the successor will be substituted
for us, and thereafter all of our obligations under the relevant indenture, the debt securities and any coupons will terminate.
The indentures provide that these limitations
shall not apply if our board of directors makes a good faith determination that the principal purpose of the transaction is to change
our state of incorporation.
Exchange of Debt Securities
Registered debt securities may be exchanged for
an equal aggregate principal amount of registered debt securities of the same series and date of maturity in such authorized denominations
as may be requested upon surrender of the registered debt securities at an agency of the Company maintained for such purpose and upon
fulfillment of all other requirements of such agent.
Default and Remedies
Unless the securities resolution or supplemental
indenture establishing the series otherwise provides (in which event the prospectus supplement will so state), an “Event of Default”
with respect to a series of debt securities will occur if:
| (1) | we default in any payment of interest on any debt securities of
such series when the same becomes due and payable and the default continues for a period
of 30 days; |
| (2) | we default in the payment of all or any part of the principal and
premium, if any, of any debt securities of such series when the same becomes due and payable
at maturity or upon redemption, acceleration or otherwise and such default shall continue
for five or more days; |
| (3) | we default in the performance of any of our other agreements applicable
to the series and the default continues for 30 days after the notice specified below; |
| (4) | a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law (as defined below) that: |
| (A) | is for relief against us in an involuntary case, |
| (B) | appoints a Custodian (as defined below) for us or for any substantial
part of our property, or |
| (C) | orders the winding up or liquidation of us, and the order or decree
remains unstayed and in effect for 90 consecutive days; |
(5) we, pursuant to or within the
meaning of any Bankruptcy Law:
| (A) | commence a voluntary case, |
| (B) | consent to the entry of an order for relief against us in an involuntary
case, |
| (C) | consent to the appointment of a Custodian for us or for any substantial
part of our property, or |
| (D) | make a general assignment for the benefit of our creditors; or |
(6) there occurs any other Event of
Default provided for in such series.
The term “Bankruptcy Law” means Title
11 of the United States Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any
receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
“Default” means any event which is,
or after notice or passage of time would be, an Event of Default. A Default under subparagraph (3) above is not an Event of Default until
the trustee or the holders of at least 25% in principal amount of the series notify us of the Default and we do not cure the Default
within the time specified after receipt of the notice.
The trustee may require indemnity satisfactory
to it before it enforces the indentures or the debt securities of the series. Subject to certain limitations, holders of a majority in
principal amount of the debt securities of the series may direct the trustee in its exercise of any trust or power with respect to such
series. Except in the case of Default in payment on a series, the trustee may withhold from securityholders of such series notice of
any continuing Default if the trustee determines that withholding notice is in the interest of such securityholders. We are required
to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the indentures.
The indentures do not have cross-default provisions.
Thus, a default by us on any other debt, including any other series of debt securities, would not constitute an Event of Default.
Amendments and Waivers
The indentures and the debt securities or any
coupons of the series may be amended, and any Default may be waived as follows:
Unless the securities resolution or supplemental
indenture otherwise provides (in which event the applicable prospectus supplement will so state), the debt securities and the indentures
may be amended with the consent of the holders of a majority in principal amount of the debt securities of all series affected voting
as one class. Unless the securities resolution or supplemental indenture otherwise provides (in which event the applicable prospectus
supplement will so state), a Default other than a Default in payment on a particular series may be waived with the consent of the holders
of a majority in principal amount of the debt securities of the series. However, without the consent of each securityholder affected,
no amendment or waiver may:
| · | change the fixed maturity
of or the time for payment of interest on any debt security; |
| · | reduce the principal,
premium or interest payable with respect to any debt security; |
| · | change the place of
payment of a debt security or the currency in which the principal or interest on a debt security
is payable; |
| · | change the provisions
for calculating any redemption or repurchase price with respect to any debt security; |
| · | adversely affect any
holder’s right to receive payment of principal and interest or to institute suit for
the enforcement of any such payment; |
| · | reduce the amount
of debt securities whose holders must consent to an amendment or waiver; make any change
that materially adversely affects the right to convert any debt security; waive any Default
in payment of principal of or interest on a debt security; or |
| · | adversely affect any
holder’s rights with respect to redemption or repurchase of a debt security. |
Without the consent of any securityholder, the indentures or the debt
securities may be amended to:
| · | provide for assumption
of our obligations to securityholders in the event of a merger or consolidation requiring
such assumption; |
| · | cure any ambiguity,
omission, defect or inconsistency; |
| · | conform the terms
of the debt securities to the description thereof in the prospectus and prospectus supplement
offering such debt securities; |
| · | create a series and
establish its terms; |
| · | provide for the acceptance
of appointment by a successor trustee or to facilitate the administration of the trusts by
more than one trustee; |
| · | provide for uncertificated
or unregistered securities; |
| · | make any change that
does not adversely affect the rights of any securityholder; |
| · | add to our covenants;
or |
| · | make any other change
to the indentures so long as no debt securities are outstanding. |
Conversion Rights
Any securities resolution or supplemental indenture
establishing a series of debt securities may provide that the debt securities of such series will be convertible at the option of the
holders thereof into or for our common stock or other equity or debt instruments. The securities resolution or supplemental indenture
may establish, among other things, (1) the number or amount of shares of common stock or other equity or debt instruments for which $1,000
aggregate principal amount of the debt securities of the series is convertible, as may be adjusted pursuant to the terms of the relevant
indenture and the securities resolution; and (2) provisions for adjustments to the conversion rate and limitations upon exercise of the
conversion right. The indentures provide that we will not be required to make an adjustment in the conversion rate unless the adjustment
would require a cumulative change of at least 1% in the conversion rate. However, we will carry forward any adjustments that are less
than 1% of the conversion rate and take them into account in any subsequent adjustment of the conversion rate.
Legal Defeasance and Covenant Defeasance
Debt securities of a series may be defeased in
accordance with their terms and, unless the securities resolution or supplemental indenture establishing the terms of the series otherwise
provides, as set forth below. We at any time may terminate as to a series all of our obligations (except for certain obligations, including
obligations with respect to the defeasance trust and obligations to register the transfer or exchange of a debt security, to replace
destroyed, lost or stolen debt securities and coupons and to maintain paying agencies in respect of the debt securities) with respect
to the debt securities of the series and any related coupons and the relevant indenture, which we refer to as legal defeasance. We at
any time may terminate as to a series our obligations with respect to any restrictive covenants which may be applicable to a particular
series, which we refer to as covenant defeasance.
We may exercise our legal defeasance option notwithstanding
our prior exercise of our covenant defeasance option. If we exercise our legal defeasance option, a series may not be accelerated because
of an Event of Default. If we exercise our covenant defeasance option, a series may not be accelerated by reference to any covenant which
may be applicable to a series.
To exercise either defeasance option as to a
series, we must (1) irrevocably deposit in trust with the trustee (or another trustee) money or U.S. Government Obligations (as defined
below), deliver a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments
of principal and interest when due on the deposited U.S. Government Obligations, without reinvestment, plus any deposited money without
investment will provide cash at such times and in such amounts as will be sufficient to pay the principal and interest when due on all
debt securities of such series to maturity or redemption, as the case may be; and (2) comply with certain other conditions. In particular,
we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain or loss to holders for federal
income tax purposes.
“U.S. Government Obligations” means
direct obligations of the United States or any agency or instrumentality of the United States, the payment of which is unconditionally
guaranteed by the United States, which, in either case, have the full faith and credit of the United States pledged for payment and which
are not callable at the issuer’s option, or certificates representing an ownership interest in such obligations.
Regarding the Trustee
Unless otherwise indicated in a prospectus supplement,
the trustee will also act as depository of funds, transfer agent, paying agent and conversion agent, as applicable, with respect to the
debt securities. In certain circumstances, we or the securityholders may remove the trustee as the trustee under a given indenture.
The indenture trustee may also provide additional
unrelated services to us as a depository of funds, registrar, trustee and similar services.
Governing Law
The indentures and the debt securities will be
governed by New York law, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase shares of our
common stock, preferred stock and/or debt securities in one or more series together with other securities or separately, as described
in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants that we may offer.
Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating to the warrants.
The applicable prospectus supplement will contain,
where applicable, the following terms of and other information relating to the warrants:
| · | the specific designation
and aggregate number of, and the price at which we will issue, the warrants; |
| · | the currency or currency
units in which the offering price, if any, and the exercise price are payable; |
| · | the designation, amount
and terms of the securities purchasable upon exercise of the warrants; |
| · | if applicable, the
exercise price for shares of our common stock and the number of shares of common stock to
be received upon exercise of the warrants; |
| · | if applicable, the
exercise price for shares of our preferred stock, the number of shares of preferred stock
to be received upon exercise, and a description of that series of our preferred stock; |
| · | if applicable, the
exercise price for our debt securities, the amount of debt securities to be received upon
exercise, and a description of that series of debt securities; |
| · | the date on which
the right to exercise the warrants will begin and the date on which that right will expire
or, if you may not continuously exercise the warrants throughout that period, the specific
date or dates on which you may exercise the warrants; |
| · | whether the warrants
will be issued in fully registered form or bearer form, in definitive or global form or in
any combination of these forms, although, in any case, the form of a warrant included in
a unit will correspond to the form of the unit and of any security included in that unit; |
| · | any applicable material
U.S. federal income tax consequences; |
| · | the identity of the
warrant agent for the warrants and of any other depositaries, execution or paying agents,
transfer agents, registrars or other agents; |
| · | the proposed listing,
if any, of the warrants or any securities purchasable upon exercise of the warrants on any
securities exchange; |
| · | if applicable, the
date from and after which the warrants and the common stock, preferred stock and/or debt
securities will be separately transferable; |
| · | if applicable, the
minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect
to book-entry procedures, if any; |
| · | the anti-dilution
provisions of the warrants, if any; |
| · | any redemption or
call provisions; |
| · | whether the warrants
may be sold separately or with other securities as parts of units; and |
| · | any additional terms
of the warrants, including terms, procedures and limitations relating to the exchange and
exercise of the warrants. |
Transfer Agent and Registrar
The transfer agent and registrar for any warrants
will be set forth in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
General
We may issue rights to our stockholders to purchase
shares of our common stock, preferred stock or the other securities described in this prospectus. We may offer rights separately or together
with one or more additional rights, debt securities, preferred stock, common stock or warrants, or any combination of those securities
in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights
agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely as our agent in
connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship
of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth
certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights
to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered
will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or
rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below
will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights
certificate for additional information before you decide whether to purchase any of our rights. We will provide in a prospectus supplement
the following terms of the rights being issued:
| · | the date of determining
the stockholders entitled to the rights distribution; |
| · | the aggregate number
of shares of common stock, preferred stock or other securities purchasable upon exercise
of the rights; |
| · | the aggregate number
of rights issued; |
| · | whether the rights
are transferrable and the date, if any, on and after which the rights may be separately transferred; |
| · | the date on which
the right to exercise the rights will commence, and the date on which the right to exercise
the rights will expire; |
| · | the method by which
holders of rights will be entitled to exercise; |
| · | the conditions to
the completion of the offering, if any; |
| · | the withdrawal, termination
and cancellation rights, if any; |
| · | whether there are
any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
| · | whether stockholders
are entitled to oversubscription rights, if any; |
| · | any applicable material
U.S. federal income tax considerations; and |
| · | any other terms of
the rights, including terms, procedures and limitations relating to the distribution, exchange
and exercise of the rights, as applicable. |
Each right will entitle the holder of rights
to purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise price provided
in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the
rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the
applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward
the shares of common stock, preferred stock or other securities, as applicable, purchasable upon exercise of the rights. If less than
all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than
stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements,
as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any rights we offer will
be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the
additional information that we include in any applicable prospectus supplements, summarizes the material terms and provisions of the
units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may
offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus
supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports
that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series
of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and
any supplemental agreements that contain the terms of the units.
General
We may issue units consisting of common stock,
preferred stock, one or more debt securities, warrants or rights for the purchase of common stock, preferred stock and/or debt securities
in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit.
The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
| · | the designation and
terms of the units and of the securities comprising the units, including whether and under
what circumstances those securities may be held or transferred separately; |
| · | any provisions of
the governing unit agreement that differ from those described below; and |
| · | any provisions for
the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units. |
The provisions described in this section, as
well as those set forth in any prospectus supplement or as described under “Description of Common Stock,” “Description
of Preferred Stock,” “Description of Debt Securities,” “Description of Warrants,” and “Description
of Rights” will apply to each unit, as applicable, and to any common stock, preferred stock, debt security, warrant or right included
in each unit, as applicable.
Unit Agent
The name and address of the unit agent, if any,
for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent
under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit.
A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., New York, New York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
EXPERTS
The financial statements of Acurx Pharmaceuticals,
Inc. for the two years ended December 31, 2024 have been audited by CohnReznick LLP, independent registered public accounting firm, as
set forth in their report thereon appearing in Acurx Pharmaceuticals, Inc’s Annual Report on Form 10-K for the year ended December 31, 2024, and incorporated by reference herein. Such financial statements are incorporated by reference herein in reliance upon such
report, which includes an explanatory paragraph on Acurx Pharmaceuticals, Inc.’s ability to continue as a going concern, given
on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements
of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. SEC filings
are available at the SEC’s website at http://www.sec.gov. This prospectus is only part of a registration statement on Form
S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information contained in the registration statement.
We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus, and you should refer
to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document.
We also maintain a website at www.acurxpharma.com,
through which you can access our SEC filings. The information set forth on our website is not part of this prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the information we file with it, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this prospectus, and information in documents
that we file later with the SEC will automatically update and supersede information in this prospectus. We incorporate by reference into
this prospectus the documents listed below and any future filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act until we close this offering, including all filings made after the date of the initial registration statement and prior
to the effectiveness of the registration statement. We hereby incorporate by reference the following documents:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2024, filed with the SEC on March 17, 2025; |
| · | our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2025, filed with the SEC on May 12, 2025; |
| · | our Current Reports
on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and
not filed) filed with the SEC on January 7, 2025, February 26, 2025, March 10, 2025, March 28, 2025, May 8, 2025 and June 20, 2025; |
| · | the description of
our common stock, par value $0.001 per share, contained in our Form 8-A filed on June 23, 2021, including any amendment or report filed for the purpose of updating such description,
including the Description of Securities filed as Exhibit 4.13 to our Annual Report on
Form 10-K for the year ended December 31, 2024, filed with the SEC on March 17,
2025; and. |
| · | all reports and other
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this prospectus and prior to the termination or completion
of the offering of securities under this prospectus shall be deemed to be incorporated by
reference in this prospectus and to be a part hereof from the date of filing such reports
and other documents. |
Any statement contained in a document, all or
a portion of which is incorporated or deemed to be incorporated by reference herein, will be deemed to be modified or superseded to the
extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so modified will not be deemed to constitute a part hereof, except
as so modified, and any statement so superseded will not be deemed to constitute a part hereof.
You may request a copy of these filings, at no
cost, by writing or telephoning us at the following address:
Acurx Pharmaceuticals, Inc.
259 Liberty Avenue
Staten Island, NY 10305
Telephone: (917) 533-1469
You may also access these documents on our website,
http://www.acurxpharma.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus.
We have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on information contained
in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers
to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
ACURX PHARMACEUTICALS, INC.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
, 2025
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemization
of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securities being registered.
All of the amounts shown are estimated except the SEC Registration Fee and the FINRA Filing Fee.
| SEC registration fee | |
$ | 3,020.00 | (1) |
| FINRA filing fee | |
$ | 8,000.00 | |
| Printing and engraving expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Accountants’ fees and expenses | |
| * | |
| Transfer agent and registrar fees and expenses | |
| * | |
| Miscellaneous expenses | |
| * | |
| Total | |
| * | |
| * | Fees depend on number of issuances and amount of securities sold and
accordingly cannot be estimated at this time. |
| (1) | The registrant is filing this registration statement to replace
its existing registration statement (No. 333-265956), which is expiring pursuant
to Rule 415(a)(5). In accordance with Rule 415(a)(6), effectiveness
of this registration statement will be deemed to terminate such existing registration statement.
Please see the registration fee table contained in Exhibit 107 to this registration
statement for more information. |
Item 15. Indemnification of Directors and Officers
Section 102 of the General Corporation Law of
the State of Delaware (the “Delaware General Corporation Law”) permits a corporation to eliminate the personal liability
of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated
a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the Delaware General Corporation
Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently
broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising
under the Securities Act.
Section 145 of the Delaware General Corporation Law states:
(a) A corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct
was unlawful.
(b) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director
or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a)
and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person
has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer of the corporation at the time of such determination:
(1) By a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a quorum; or
(2) By a committee of such directors designated
by majority vote of such directors, even though less than a quorum; or
(3) If there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or
(4) By the stockholders.
(e) Expenses (including attorneys’ fees)
incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred
by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation
as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid
upon such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding
such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or
a bylaw shall not be eliminated or impaired by an amendment to the certificate of incorporation or the bylaws after the occurrence of
the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which
indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes
such elimination or impairment after such action or omission has occurred.
(g) A corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such
liability under this section.
(h) For purposes of this section, references
to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this section, references
to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation”
shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person
who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation”
as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or
under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine
a corporation’s obligation to advance expenses (including attorneys’ fees).
As permitted by Delaware law, our certificate
of incorporation limits or eliminates the personal liability of our directors to the maximum extent permitted by Delaware law.
Our bylaws provide for indemnification of our
directors and executive officers to the maximum extent permitted by the Delaware General Corporation Law.
In addition, we have entered into indemnification
agreements with each of our current directors. These agreements require us to indemnify these individuals to the fullest extent permitted
under Delaware law against liabilities that may arise by reason of their service to us and to advance expenses incurred as a result of
any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future
directors and executive officers.
We also maintain standard policies of insurance
under which coverage is provided to our directors and officers against losses arising from claims made by reason of breach of duty or
other wrongful act, and to us with respect to payments which may be made by us to such directors and officers pursuant to the above indemnification
provisions or otherwise as a matter of law.
The above discussion of our certificate of incorporation,
our bylaws, our indemnification agreements with our current directors and executive officers and Sections 102 and 145 of the Delaware
General Corporation Law is not intended to be exhaustive and is respectively qualified in its entirety by such certificate of incorporation,
such bylaws, such indemnification agreements and such statutes.
To the extent that our directors, officers and
controlling persons are indemnified under the provisions contained in our certificate of incorporation, Delaware law or contractual arrangements
against liabilities arising under the Securities Act, we have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits
(a) The following exhibits are filed herewith or incorporated herein
by reference:
EXHIBIT INDEX
EXHIBIT
NUMBER |
|
EXHIBIT DESCRIPTION |
|
FILED
HEREWITH |
|
INCORPORATED
BY REFERENCE
HEREIN FROM
FORM OR
SCHEDULE |
|
FILING
DATE |
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SEC FILE/ REG.
NUMBER |
| 1.1* |
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Form of Underwriting Agreement |
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| 4.1 |
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Certificate of Incorporation of the Registrant |
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Form 8-K
(Exhibit 3.1) |
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June 29, 2021 |
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001-40536 |
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| 4.2 |
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Bylaws of the Registrant |
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Form 8-K
(Exhibit 3.2) |
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June 29, 2021 |
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001-40536 |
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| 4.3* |
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Form of Certificate of Designations with respect to Preferred Stock. |
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| 4.4 |
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Form of Common Stock Certificate |
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Form 10-K
(Exhibit 4.1) |
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March 16, 2022 |
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001-40536 |
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| 4.5 |
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Form of Senior Indenture |
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X |
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| 4.6 |
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Form of Subordinated Indenture |
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X |
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| 4.7* |
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Form of Senior Debt Security |
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| 4.8* |
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Form of Subordinated Debt Security |
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| 4.9* |
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Form of Warrant Agreement and Warrant |
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| 4.10* |
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Form of Rights Agreement and Right Certificate |
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| 4.11* |
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Form of Unit Agreement and Unit |
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| 5.1 |
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
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X |
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| 23.1 |
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Consent of CohnReznick LLP, independent registered public accounting firm |
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X |
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| 23.2 |
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1) |
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X |
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| 24.1 |
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Power of attorney (included on the signature page) |
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X |
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| 25.1* |
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Statement of Trustee Eligibility |
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| 107 |
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Filing Fee Table |
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X |
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| * | To be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or as an exhibit to
a document filed under the Securities Exchange Act of 1934, as amended, and incorporated
by reference herein. |
Item 17. Undertakings
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement; provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement. |
| (2) | That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser. |
| (b) | That, for purposes of determining any liability under the Securities
Act: |
(i) the information omitted from the form of prospectus
filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of the registration statement as of the
time it was declared effective; and
(ii) each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
| (c) | The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
| (d) | Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of the registrant,
the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue. |
| (e) | The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York, on July 9, 2025.
| |
ACURX
PHARMACEUTICALS, INC. |
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By: |
/s/ David P. Luci |
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David P. Luci |
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President and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned directors and officers of
Acurx Pharmaceuticals, Inc., hereby severally constitute and appoint David P. Luci and Robert Shawah, and each of them singly, our true
and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated
below, the registration statement on Form S-3 filed herewith, and any and all pre-effective and post-effective amendments to said registration
statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, in connection with
the registration under the Securities Act of 1933, as amended, of equity securities of Acurx Pharmaceuticals, Inc., and to file or cause
to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and purposes as each of us might or could do in person, and hereby
ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done
by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement on Form S-3 has been signed by the following persons in the capacities and on the
dates indicated.
| SIGNATURE |
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TITLE |
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DATE |
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| /s/ David P. Luci |
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President,
Chief Executive Officer and Director |
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July 9, 2025 |
| David P. Luci |
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(Principal Executive Officer) |
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| /s/ Robert G. Shawah |
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Chief
Financial Officer |
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July 9, 2025 |
| Robert G. Shawah |
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(Principal Financial Officer and Principal Accounting Officer) |
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| /s/ Robert J. DeLuccia |
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Executive Chairman |
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July 9, 2025 |
| Robert J. DeLuccia |
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| /s/ Carl V. Sailer |
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Director |
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July 9, 2025 |
| Carl V. Sailer |
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| /s/ Joseph C. Scodari |
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Director |
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July 9, 2025 |
| Joseph C. Scodari |
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| /s/ Thomas Harrison |
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Director |
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July 9, 2025 |
| Thomas Harrison |
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| /s/ Jack H. Dean |
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Director |
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July 9, 2025 |
| Jack H. Dean |
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| /s/ James Donohue |
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Director |
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July 9, 2025 |
| James Donohue |
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