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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 3, 2025 (February 25, 2025)
Lipella Pharmaceuticals Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 005-93847 | 20-2388040 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
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7800 Susquehanna St., Suite 505 Pittsburgh, PA |
15208 | |
| (Address of registrant’s principal executive office) | (Zip code) |
Registrant’s telephone number, including area code: (412) 894-1853
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name
of each exchange on which registered |
||
| Common Stock, par value $0.0001 per share | LIPO | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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| Item 1.01 | Entry into a Material Definitive Agreement. |
As previously disclosed in the Current Reports on Form 8-K filed by Lipella Pharmaceuticals Inc. (the “Company”) with the U.S. Securities and Exchange Commission (the “SEC”) on December 30, 2024 and January 6, 2025 (collectively, the “Prior Form 8-Ks”), the Company sold an aggregate of 25,975 shares of Series B non-voting convertible preferred stock, par value $0.0001 per share, of the Company (the “Series B Preferred Stock”) to certain investors for a purchase price of $100 per share in connection with closings (collectively, the “Prior Closings”) of a best efforts private placement offering of up to $6,000,000 of shares of Series B Preferred Stock (the “Offering”) (subject to a $1,200,000 over-allotment option (the “Over-allotment Option”)), with Spartan Capital Securities, LLC (“Spartan”) providing placement agent and consulting services in connection therewith.
Third Closing of the Offering
On February 25, 2025 and February 26, 2025, in connection with subsequent closings of the Offering (collectively, the “Third Closing”), the Company formally entered into subscription agreements (the “Subscription Agreements”) with investors (the “Third Closing Investors”), pursuant to which the Company issued and sold to the Third Closing Investors an aggregate of 37,880 shares of Series B Preferred Stock and received gross proceeds of $3,788,000, inclusive of gross proceeds of $385,500 received from shares of Series B Preferred Stock sold pursuant to Spartan’s partial exercise of the Over-allotment Option. Such shares of Series B Preferred Stock are convertible into an aggregate of 1,258,327 shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) at a conversion price of $3.00 or $3.13 per share, as applicable, subject to customary adjustments, each of which is equal to the Minimum Price (as defined in Rule 5635(d)(1)(A) of The Nasdaq Stock Market LLC) immediately prior to the execution of the applicable Subscription Agreements. Other than the conversion price for such shares of Series B Preferred Stock, the Subscription Agreements between the Company and each Third Closing Investor are nearly identical to the subscription agreements that were executed in connection with the Prior Closings. The Company received net proceeds of $3,124,040 in connection with the Third Closing and currently intends to use all proceeds raised in the Offering for working capital and general corporate purposes. In connection with the Third Closing, the Company and each Third Closing Investor also entered into a registration rights agreement (a “Registration Rights Agreement”), which is nearly identical to the registration rights agreements executed in connection with the Prior Closings. For additional details regarding the terms of the Subscription Agreements and Registration Rights Agreements, please see the Prior Form 8-Ks and the applicable exhibits filed therewith.
At the Third Closing and in accordance with the Spartan Agreements (as defined in the Prior Form 8-Ks), the Company paid Spartan an aggregate of $663,960 in placement agent and consulting fees and issued to Spartan and its designee (i) an aggregate of 441,933 shares of the Company’s Series C voting convertible preferred stock, par value $0.0001 per share (the “Series C Preferred Stock”), and (ii) placement agent warrants (the “Placement Agent Warrants”) to purchase up to 125,833 shares of Common Stock. Other than the holders, the number of shares and expiration date, the Placement Agent Warrants are nearly identical to the placement agent warrants issued to Spartan in connection with the Prior Closings. Also in connection with the Third Closing, pursuant to that certain irrevocable proxy and power of attorney between Spartan and Jonathan Kaufman, Chief Executive Officer of the Company (the “Irrevocable Proxy”), Spartan agreed to grant to Dr. Kaufman all voting power over and power of attorney with respect to all such shares of Series C Preferred Stock, and all shares of Common Stock issuable upon conversion of such shares or exercise of the Placement Agent Warrants, issued or issuable to Spartan or its Attribution Parties (as defined in the Irrevocable Proxy) in connection with the Third Closing. For additional details regarding the terms of the Irrevocable Proxy, such shares of Series C Preferred Stock and the Placement Agent Warrants, please see the Prior Form 8-Ks and the applicable exhibits filed therewith.
At the Third Closing, such shares of Series B Preferred Stock were offered and sold to the Third Closing Investors, and such Placement Agent Warrants and shares of Series C Preferred Stock were issued to Spartan and its designee, as applicable, pursuant to an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), provided in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder. In connection with the offer, sale and/or issuance of such securities, the Company relied on the written representations of the Third Closing Investors, Spartan and its designee, as applicable, that they were each an “accredited investor” as defined in Rule 501(a) of Regulation D. In addition, neither the Company nor anyone acting on its behalf offered or sold such securities by any form of general solicitation or general advertising.
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Second Amendment to Consulting Agreement and Advisory Agreement
As previously disclosed in the Current Report on Form 8-K filed by the Company with the SEC on December 10, 2024, the Company entered into a consulting and advisory agreement on December 5, 2024 with Spartan, which was subsequently amended by an Amendment to Consulting Agreement and Placement Agent Agreement (the “Amendment”), dated December 10, 2024, by and between the Company and Spartan (such agreement, as amended, the “Consulting Agreement”).
As of February 28, 2025, the Company and Spartan entered into a Second Amendment to Consulting Agreement and Advisory Agreement (the “Second Amendment”), pursuant to which Spartan and the Company agreed to modify certain terms of the Consulting Agreement to require the Company to compensate Spartan with additional cash fees and stock compensation on a pro rata basis in the event that shares of Series B Preferred Stock are sold pursuant to Spartan’s exercise of the Over-allotment Option and the $1,200,000 over-allotment option for the Mirror Offering (as defined in the Consulting Agreement).
The foregoing descriptions of the Irrevocable Proxy, the Second Amendment and each of the forms of Subscription Agreement, Registration Rights Agreement and Placement Agent Warrant do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements. The forms of Subscription Agreement, Registration Rights Agreement and Placement Agent Warrant were filed as Exhibits 10.2, 10.3, and 4.1, respectively, to the Prior Form 8-Ks and are incorporated herein by reference. The Irrevocable Proxy reflecting the additional securities issued to Spartan and its designee in connection with the Third Closing is filed as Exhibit 10.1 to this Current Report on Form 8-K (this “Form 8-K”), and the Second Amendment is filed as Exhibit 10.4 hereto, each of which is also incorporated herein by reference.
This Form 8-K contains forward-looking statements. Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations, strategies, predictions or any other statements related to the Company’s future activities, or future events or conditions, including without limitation, the Company’s intended use of the proceeds raised from the Offering, the Company’s ability to file the applicable Registration Statements (as defined in the Registration Rights Agreements) and have them declared effective by the SEC, or the Company’s and/or Spartan’s ability to continue the Offering in the event that the Over-allotment Option is fully exercised or consummate the Mirror Offering. These statements are based on current expectations, estimates and projections about the Company’s business based, in part, on assumptions made by its management. These statements are not guarantees of future performances and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements due to numerous factors, including those risks discussed in the Company’s Annual Report on Form 10-K and other reports and documents that the Company files from time to time with the SEC. Any forward-looking statements speak only as of the date on which they are made, and the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances after the date of this Form 8-K, except as required by law.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The applicable disclosure contained in Item 1.01 of this Form 8-K is incorporated by reference in this Item 3.02.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: March 3, 2025 | Lipella Pharmaceuticals Inc. | ||
| By: | /s/ Jonathan Kaufman | ||
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Name: Jonathan Kaufman Title: Chief Executive Officer |
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Exhibit 10.1
Irrevocable Proxy and Power of Attorney
Pursuant to that certain (i) consulting agreement and advisory agreement, by and between Lipella Pharmaceuticals Inc., a Delaware corporation (the “Corporation”), and Spartan Capital Securities, LLC, including any designee thereof (“Spartan”), dated as of December 5, 2024, as amended by that certain Amendment to Consulting Agreement and Placement Agent Agreement (the “Amendment”), dated December 10, 2024 (the “Consulting Agreement”), the Corporation is obligated to issue to Spartan up to 1,050,000 shares (“Consultant Shares”) of Series C Convertible Preferred Stock, par value $0.0001 per share, of the Corporation (the “Series C Preferred Stock”), convertible into up to 1,050,000 shares (“Conversion Shares”) of common stock, par value $0.0001 per share, of the Corporation (the “Common Stock”) in consideration for advisory and consultant services that have been and will be rendered by Spartan and (ii) placement agent agreement, dated December 5, 2024, as amended the Amendment, by and between the Corporation and Spartan (the “Placement Agent Agreement”), the Corporation has agreed to issue Spartan common stock purchase warrants exercisable for a number of shares of Common Stock (collectively, the “Warrant Shares”) equal to 10% of the number of shares of Series B non-voting convertible preferred stock of the Corporation, par value $0.0001 per share, sold in a private placement by the Corporation (the “Offering”) for which Spartan is serving as placement agent. Spartan is executing this Irrevocable Proxy and Power of Attorney (this “Irrevocable Proxy”) as a material inducement for the Corporation’s entering into the Consulting Agreement and the Placement Agent Agreement.
Upon the issuance of any and all Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable), Spartan (x) will be the record holder of the Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable) and (y) will have good and valid title to such Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable), free and clear of any liens or restrictions on transfer except as provided herein and in the Consulting Agreement and Placement Agent Agreement. Upon the issuance by the Corporation of a number of Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable) to Spartan and/or its Affiliates (as defined under Rule 405 of the Securities Act of 1933, as amended) or any other person or entity acting as a group together with Spartan and such Affiliates (such persons, “Attribution Parties”), Spartan (and such other Attribution Parties, if any) hereby irrevocably appoints Dr. Jonathan Kaufman, Chief Executive Officer of the Corporation (the “Principal Stockholder”), and any designee of the Principal Stockholder as the proxy and attorney-in-fact, with full power of substitution and resubstitution, to represent and vote the aggregate number of Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable), held by Spartan (and such Attribution Party, if any) (such shares collectively, the “Proxied Shares”), whether at a meeting of the shareholders of the Corporation or by any consent to any action taken by such shareholders without a meeting, with respect to any and all matters presented to the shareholders of the Corporation for vote or for action without a meeting. Such irrevocable appointment to the Principal Stockholder of the aforementioned rights to the Proxied Shares shall be evidenced by the signature of each of Spartan, such Attribution Party (if any) and the Principal Stockholder on the row of Schedule I attached hereto corresponding to such Proxied Shares. This proxy and power of attorney granted by Spartan (and any other Attribution Party, if any) shall be irrevocable during its term and shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy. Spartan authorizes the Principal Stockholder to file this Irrevocable Proxy and any substitution or revocation with the Corporation so that the existence of this Irrevocable Proxy is noted on the books and records of the Corporation. The power of attorney granted by Spartan herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Spartan.
During the effectiveness of this Irrevocable Proxy, the Principal Stockholder shall have all the voting power and all power to grant consent that Spartan (or an Attribution Party, if any) would possess by virtue of being the holder of the Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable). Upon each signature by Spartan (and any other Attribution Party) on Schedule I with respect to Proxied Shares, Spartan and such Attribution Party hereby ratifies and confirms all acts that the Principal Stockholder will do or cause to be done with respect to such Proxied Shares by virtue of and within the limitations set forth in this Irrevocable Proxy.
This Irrevocable Proxy is binding on Spartan’s heirs, estate, executors, personal representatives, successors, and assigns (including any transferee of any of the Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable)) to the fullest extent permitted under applicable law.
Spartan shall not dispose of, pledge, sell, convey, assign, hypothecate, or otherwise transfer (each, a “Transfer”) number of Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable) without the express prior consent of the Corporation and shall provide the Corporation with at least five (5) Business Days’ prior notice of its intention to effect a Transfer to a non-Attribution Party. “Business Day” shall mean any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which the Federal Reserve Bank of New York is closed and/or The Nasdaq Stock Market LLC is not open for at least five (5) hours of trading. Spartan shall inform the Corporation of any pledge of Proxied Shares made prior to the date of this Irrevocable Proxy. Except pursuant to this Irrevocable Proxy, as of the date hereof, no person or entity other than Spartan or an Attribution Party has any contractual or other right or obligation to purchase or otherwise acquire any of the Consultant Shares, Conversion Shares and/or Warrant Shares (as applicable). Upon the registration of the reoffer and resale of the Conversion Shares and Warrant Shares (as applicable) listed on Schedule I, the appointment of voting power granted to the Principal Stockholder shall immediately terminate with respect to such respective Conversion Shares and the corresponding Consultant Shares, and Warrant Shares (as applicable) and all restrictions on, and consents required for, Transfers of the Consultant Shares, Conversion Shares and Warrant Shares shall terminate, provided, that Spartan hereby agrees that neither Spartan, the other Attribution Parties nor their respective designees, successors or assigns, shall Transfer any Consultant Shares, Conversion Shares or Warrant Shares to a non-Attribution Party (other than to the Corporation or the Principal Stockholder) (i) whose business is directly or indirectly competitive with the business of the Corporation as it is being conducted or planned to be conducted at the time of such proposed disposition, or (ii) who intends to or has taken action, directly or indirectly, in one or more related transactions, towards obtaining an ownership interest in the Corporation for purposes of effecting (x) a change of “control” of the Corporation (as such term is defined under Section 203 of the General Corporation Law of the State of Delaware), (y) a sale or all or substantially all of the assets of the Corporation or (z) a change to the board of directors or management of the Corporation at the time of such proposed disposition, (iii) if such disposition will, to Spartan’s knowledge, result in such third party (together with all of such third party’s “affiliates” (as defined in Rule 405 of the Securities Act of 1933, as amended) and any other persons acting as a group together with such third party) being deemed a “beneficial owner” (as defined under Rule 13d-3) of more than 4.99% of the outstanding shares of Common Stock immediately after giving effect to such disposition. In addition, this Irrevocable Proxy shall terminate with respect to Consultant Shares, Conversion Shares and Warrant Shares (as applicable) upon each disposition of Consultant Shares, Conversion Shares and Warrant Shares (as applicable) by an Attribution Party to a non-Attribution Party. Notwithstanding the foregoing, a Transfer of Consultant Shares, Conversion Shares or Warrant Shares by Spartan (or any other Attribution Party) to an Attribution Party shall only become effective upon such transferee’s delivery of a completed and executed Joinder Agreement, substantially in the form attached hereto as Schedule II. The Company undertakes to include the maximum possible number of Conversion Shares and Warrant Shares in the initial registration statement filed in connection with the Offering and in each subsequent registration statement, as needed, and agrees to lift all Transfer and notice restrictions six months after any issuance if such Conversion Shares and Warrant Shares are not then registered for resale.
This Irrevocable Proxy may be amended or supplemented, and any obligation of an Attribution Party may be waived, only with the prior written consent of the Corporation. No waivers of any breach of this Irrevocable Proxy extended by the Corporation to any Attribution Party shall be construed as a waiver of any rights or remedies of the Corporation or with respect to any subsequent breach.
This Irrevocable Proxy shall be governed by, and construed under, the laws of the State of Delaware, without regard to principles of conflict of laws. In case any provision of this Irrevocable Proxy shall be invalid, illegal or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the Corporation and Spartan (and any other Attribution Party, if any) represented by such invalidated term, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
In the event that any signature hereto is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
[signature page follows]
Spartan, hereby revoking any and all prior proxies granted by Spartan with respect to the Consultant Shares, Conversion Shares and Warrant Shares (as applicable), has executed this Irrevocable Proxy on the date set forth below to be deemed effective as of December 20, 2024.
| SPARTAN CAPITAL SECURITIES, LLC | ||
| By: | /s/ Kim Monchik | |
| Name: Kim Monchik | ||
| Title: Chief Administrative Officer | ||
| Date: | 12/20/2024 |
| ACKNOWLEDGED AND AGREED TO BY: | ||
| /s/ Jonathan Kaufman | ||
| Name: Jonathan Kaufman | ||
| Date: | December 20, 2024 | |
Schedule I
| Date | Number of Conversion Shares as of such date | Number of Warrant Shares as of such date | Signature of Authorized Signatory of Spartan (and/or Attribution Party, if any) | Acknowledgement and Acceptance of Principal Stockholder |
| 12/23/2024 | 182,076 | 85,421 | Signature: /s/ Kim Monchik | Signature: /s/ Jonathan Kaufman |
| 12/23/2024 | 78,032 | 0 | Signature: /s/ Eric Meyer | |
| 12/31/2024 | 30,053 | 11,795 | Signature: /s/ Kim Monchik | Signature: /s/ Jonathan Kaufman |
| 12/31/2024 | 12,880 | 0 | Signature: /s/ Eric Meyer | |
| 2/27/2025 | 309,353 | 88,083 | Signature: /s/ Kim Monchik | Signature: /s/ Jonathan Kaufman |
| 2/27/2025 | 132,580 | 37,750 | Signature: /s/ Eric Meyer | |
Schedule II
Joinder Agreement
In connection with the Transfer from [Spartan/other Attribution Party] to the undersigned of [Consultant Shares/Conversion Shares/Warrant Shares], the undersigned is executing and delivering this Joinder Agreement to the Irrevocable Proxy and Power of Attorney, dated as of December 20, 2024 (the “Irrevocable Proxy”). Terms used but not defined herein shall have the same meanings ascribed to them as in the Irrevocable Proxy.
By executing and delivering this Joinder Agreement to the Corporation and [Spartan/ other Attribution Party], the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Irrevocable Proxy in the same manner as if the undersigned were an original signatory to the Irrevocable Proxy. This Joinder Agreement shall become an integral part of, and undersigned shall become a party to and be bound by the Irrevocable Proxy upon execution and delivery of this Joinder Agreement by the undersigned.
Accordingly, the undersigned has executed and delivered this Joinder Agreement as of , .
________________________
Address
for notices:
Email:
Exhibit 10.4
SECOND AMENDMENT TO CONSULTING AGREEMENT AND ADVISORY AGREEMENT
This Second Amendment (the “Amendment”) to the Consulting Agreement and Advisory Agreement, by and between Lipella Pharmaceuticals Inc. (the “Company”) and Spartan Capital Securities, LLC (the “Consultant”), is made as of February 28, 2025. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Consulting Agreement (as defined below).
WITNESSETH
WHEREAS, the Company and the Consultant entered into the Consulting Agreement on December 5, 2024, and amended the Consulting Agreement on December 10, 2024 (collectively, the “Consulting Agreement”); and
WHEREAS, the Company and the Consultant desire to further amend the Consulting Agreement to provide that the Consultant shall be entitled to additional consulting cash fees and shares on a pro rata basis for the full $7,200,000 raised in each of the Private Placement and Mirror Offering, including the exercise of the over-allotment options for such offerings.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the Consultant agree as follows:
1. Amendment to Compensation. Section 3 of the Consulting Agreement is hereby amended and restated by substituting such section in its entity as follows:
“3. Compensation.
3.1 Cash Fee. The Company shall pay a cash fee of $360,000, which amount shall be paid out of the escrow account established in connection with the Private Placement. Such cash fee shall be paid on a pro rata basis according to the amount of gross proceeds received. Such cash fee shall be paid on a pro rata basis, based on an aggregate of $7,200,000 of Shares in the Private Placement (inclusive of the over-allotment option to purchase up to $1,200,000 of additional Shares), according to the amount of proceeds payable at each closing of the Private Placement from the escrow account established and maintained in connection with the Private Placement.
All fees in connection with section 3.1 – 3.5 are non-refundable.
3.2 Stock Compensation. The Company shall issue the Consultant an aggregate of 840,000 shares of the Company’s Series C voting convertible preferred stock, par value $0.0001 per share (the “Series C Preferred Stock”), inclusive of the over-allotment option to purchase up to $1,200,000 additional Shares, which will be issued on a pro rata basis at each closing of the Private Placement and shall be determined by the amount of proceeds received by the Company upon each such closing (for example, if an aggregate of $5,000,000 of Shares are sold in the Private Placement, then the Company shall issue an aggregate of 583,333 shares of Series C Preferred Stock instead of an aggregate of 840,000 shares of Series C Preferred Stock) (such shares of Series C Preferred Stock, the “Consultant Shares”). The Consultant Shares shall be issued to Consultant, or its designee, within five (5) business days after the date of each such closing of the Private Placement and shall be fully paid and non-assessable and deemed fully earned. The Consultant Shares will be “restricted securities” as that term is defined in the Securities Act of 1933, as amended (the “Securities Act”). The Consultant Shares will be included in the Registration Statement (as defined in the Placement Agent Agreement) and shall be subject to the voting agreement to be entered into in connection with the Private Placement, pursuant to which the Consultant will assign certain rights to the Consultant Shares to the Company and/or its management (the “Voting Agreement”). The Consultant Shares will be exempt from registration under the Securities Act in reliance on Rule 506(b) of the Securities Act, and upon issuance, will be acquired by the Consultant solely for its account for investment and not with a view to, or for resale in connection with, any distribution. The Consultant does not intend to dispose of all or any part of the Consultant Shares except in compliance with the provisions of the Securities Act and applicable state securities laws and understands that the Consultant Shares will be issued pursuant to Rule 506(b) of the Securities Act, which exemption depends, among other things, upon the compliance with the applicable provisions of the Securities Act.
3.3 Advisory Cash Compensation (Mirror Offering). The Company shall pay to the Consultant a cash fee of $240,000 in connection with the subsequent offering of its Shares pursuant to Section 6(a)(iii) of the Placement Agent Agreement, inclusive of the over-allotment option to purchase up to $1,200,000 of additional Shares (the “Mirror Offering”). Such cash fee shall be paid on a pro rata basis according to the amount of proceeds payable at each closing of such Mirror Offering in the event there is more than one closing of such Mirror Offering.
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3.4 Advisory Stock Compensation (Mirror Offering). The Company shall issue the Advisor an aggregate of 420,000 shares of Series C Preferred Stock, inclusive of the over-allotment option to purchase up to $1,200,000 additional Shares, which will be issued on a pro rata basis at each closing of the Mirror Offering and shall be determined by the amount of proceeds received by the Company upon each such closing (for example, if an aggregate of $4,000,000 of Shares are sold in the Mirror Offering, then the Company shall issue the Consultant 233,333 shares of Series C Preferred Stock instead of 420,000 shares of Series C Preferred Stock) (such shares of Series C Preferred Stock, the “Advisory Shares”). The Advisory Shares shall be issued to the Consultant, or its designee, within five (5) business days after the date of each such closing of the Mirror Offering and shall be fully paid and non-assessable and deemed fully earned. The Advisory Shares will be “restricted securities” as that term is defined in the Securities Act. The Advisory Shares will be included in the Registration Statement and shall be subject to the Voting Agreement. The Advisory Shares will be exempt from registration under the Securities Act in reliance on Rule 506(b) of the Securities Act, upon issuance, will be acquired by the Advisor solely for its account for investment and not with a view to, or for resale in connection with, any distribution. The Advisor does not intend to dispose of all or any part of the Advisory Shares except in compliance with the provisions of the Securities Act and applicable state securities laws and understands that the Advisory Shares will be issued pursuant to Rule 506(b) of the Securities Act, which exemption depends, among other things, upon the compliance with the applicable provisions of the Securities Act.
3.5 Out-of-pocket expenses. Following the Effective Date, the Consultant shall be reimbursed for reasonable out-of-pocket expenses incurred in connection with the Consultant’s performance of Advisory Services. All such expenses must be approved in advance and in writing by the Company prior to the Consultant incurring such expenses.”
2. Effect of Amendment
This Amendment shall be effective as of the date first written above and shall constitute a binding modification to the Consulting Agreement. Except as expressly modified herein, all other terms and conditions of the Consulting Agreement remain in full force and effect. In the event of any conflict between the terms of this Amendment and the Consulting Agreement, the terms of this Amendment shall control.
3. Governing Law
All questions concerning the construction, validity, enforcement, and interpretation of this Amendment shall be determined in accordance with the internal laws of the State of New York, without regard to conflict-of-law principles.
4. Counterparts
This Amendment may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
5. Electronic and Facsimile Signatures
Any signature page delivered electronically or by facsimile (including .pdf transmission) shall be binding to the same extent as an original signature page.
6. Headings
The headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation of this Amendment.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
LIPELLA PHARMACEUTICALS INC.
By:
/s/ Jonathan Kaufman_______
Name: Jonathan Kaufman
Title: Chief Executive Officer
SPARTAN CAPITAL SECURITIES, LLC
By:
/s/ Kim Monchik___________
Name: Kim Monchik
Title: Chief Administrative Officer
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