Acurx Pharmaceuticals, Inc. 10-K

Item 9A. Controls and Procedures. Disclosure Controls and Procedures We maintain “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and our management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. As required by Rules 13a-15(e) and 15d-15(e) of the Exchange Act, our management, including our principal executive officer and our principal financial officer, conducted an evaluation as of the end of the period covered by this Form 10-K of the effectiveness of the design and operation of our disclosure controls and procedures. In designing and evaluating our disclosure controls and procedures, our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control 81 Table of Contents objectives. Based on that evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were effective at the reasonable assurance level as of the end of the period covered by this Form 10-K. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure. We can give no assurance that material weaknesses in our internal control over financial reporting will not be identified in the future. Our failure to implement and maintain effective internal control over financial reporting could result in errors in our financial statements that could result in a restatement of our financial statements and cause us to fail to meet our reporting obligations. Management’s Annual Report on Internal Control over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over our financial reporting, as such term is defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act. Our management conducted an assessment of the evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2023 based on the criteria set forth in “Internal Control – Integrated Framework (2013)” issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, our management concluded that our internal control over financial reporting was effective as of December 31, 2023. Attestation Report of the Registered Public Accounting Firm This Annual Report on Form 10-K does not include an attestation report of our registered public accounting firm due to an exemption established by the JOBS Act for “emerging growth companies”. Additionally, our independent registered public accounting firm will not be required to opine on our internal control over financial reporting until we are no longer an emerging growth company. Changes in Internal Control Over Financial Reporting There were no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) identified in connection with the evaluation of such internal control that occurred during the fourth quarter of our last fiscal year that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. Item 9B. Other Information. N o n e of our directors or officers have adopted, modified, or terminated any trading plans under Rule10b5-1 of the Exchange Act or any similar arrangements during the fourth quarter of 2023. Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections. Not applicable. ​ 82 Table of Contents PART III Item 10. Directors, Executive Officers and Corporate Governance. Management and Corporate Governance Our Board of Directors Our bylaws (the “Bylaws”) and our certificate of incorporation (the “Certificate of Incorporation”), provide that our business is to be managed by or under the direction of our board of directors. Our board of directors is divided into three classes for purposes of election. One class is elected at each annual meeting of stockholders to serve for a three-year term. Our board of directors currently consists of seven (7) members, classified into three (3) classes as follows: (1) Mr. Robert J. DeLuccia, Mr. Joseph C. Scodari and Mr. James Donohue constitute Class III, with a term ending at the 2024 annual meeting; (2) Mr. Carl V. Sailer and Mr. Thomas Harrison constitute Class I, with a term ending at the 2025 annual meeting; and (3) Mr. David P. Luci and Mr. Jack H. Dean constitute Class II, with a term ending at the 2026 annual meeting. The following table provides information regarding our directors as of March 15, 2024: Name ​ ​ Age ​ ​ Position with the Company ​ David P. Luci ​ ​ 57 ​ ​ President and Chief Executive Officer, Director ​ Robert J. DeLuccia ​ ​ 78 ​ ​ Executive Chairman, Director ​ Carl V. Sailer ​ ​ 54 ​ ​ Director ​ Thomas Harrison ​ ​ 76 ​ ​ Director ​ Joseph C. Scodari ​ ​ 71 ​ ​ Director ​ Jack H. Dean ​ ​ 82 ​ ​ Director ​ James Donohue ​ ​ 54 ​ ​ Director ​ ​ Our board of directors has reviewed the materiality of any relationship that each of our directors has with us, either directly or indirectly. Based upon this review, our Board has determined that the following members of our board of directors are “independent directors” as defined by The Nasdaq Stock Market: Mr. Thomas Harrison, Mr. Joseph C. Scodari, Mr. Jack H. Dean, Mr. Carl V. Sailer and Mr. James Donohue. There are no family relationships among any of our directors or executive officers. Set forth below are the names of our directors and each of their principal occupations and employers, as applicable. David P. Luci — President and Chief Executive Officer, Director Mr. Luci is our co-founder, President and Chief Executive officer and has served as Director since February 2018. Mr. Luci previously served as our Managing Director from February 2018 until June 2021. Previously, Mr. Luci was the President and Chief Executive Officer of Dipexium Pharmaceuticals (Nasdaq: DPRX), a pharmaceutical company focused on antibiotic drug development, from February 2010 until its sale to PLx Pharma Inc. (Nasdaq: PLXP) in a merger valued at $69.0 million in April 2017. From February 2009 to January 2010, Mr. Luci served as a member of the board of directors of Access, where he also served as Chairman of the Audit Committee and Chairman of the Compensation Committee as well as serving in a consulting capacity following the acquisition of MacroChem. From December 2007 through February 2009, Mr. Luci served as a member of the board of directors and President of MacroChem. Prior to that, Mr. Luci served as Executive Vice President, Chief Financial Officer, General Counsel and Corporate Secretary of Bioenvision, Inc. (or Bioenvision), an international biopharmaceutical company focused upon the development, marketing and commercialization of oncology products and product candidates. Mr. Luci began his career with Ernst & Whinney LLP (now Ernst &Young LLP) in New York as a certified public accountant working in the Healthcare Practice Group. He later practiced corporate law at Paul Hastings LLP in New York, where his practice 83 Table of Contents encompassed all aspects of public and private mergers and acquisitions, corporate finance, restructurings and private equity transactions, with a core focus in the healthcare industry. Mr. Luci graduated from Bucknell University with a degree as a Bachelor of Science in Business Administration with a concentration in Accounting and graduated from Albany Law School of Union University where he served as Managing Editor of the Journal of Science & Technology. Mr. Luci became a certified public accountant in the State of Pennsylvania in 1990 (inactive) and is a member of the New York State Bar Association. Mr. Luci was selected to serve on our board of directors because of his extensive experience in the pharmaceutical industry. Mr. Luci also serves as Chairman of Digital Prime Technologies, a non-public technology-based company. Robert J. DeLuccia — Executive Chairman, Director Mr. DeLuccia is our co-founder and Executive Chairman and has served as Director since February 2018. Mr. DeLuccia previously served as our Managing Partner from February 2018 until June 2021. Previously, Mr. DeLuccia was the Executive Chairman of Dipexium Pharmaceuticals (Nasdaq: DPRX), a pharmaceutical company focused on antibiotic drug development, from February 2010 until its sale to PLx Pharma Inc. (Nasdaq: PLXP) in a merger valued at $69 million in April 2017. Previously, from 2004 to 2009, Mr. DeLuccia served in several capacities at MacroChem, a development-stage, publicly traded pharmaceutical company using topical drug delivery technology for products in dermatology, podiatry, urology and cancer, including as Chairman of the board of directors, President and Chief Executive Officer. Prior to joining MacroChem, Mr. DeLuccia served as President and Chief Executive Officer of Immunomedics, Inc., a publicly-traded biopharmaceutical company focused on antibody-based therapeutic products and diagnostic imaging for cancer and infectious diseases. Mr. DeLuccia also served as President of Sterling Winthrop, Inc. (or Sterling Winthrop) (as an independent corporation and then as subsidiary of Eastman Kodak), and subsequently, upon acquisition, the U.S. subsidiary of Sanofi-Aventis (or Sanofi) and currently serves as a member of the board of directors of IBEX Technologies Inc., which manufactures and markets proprietary enzymes (heparinases and chondroitinases) for use in pharmaceutical research and Heparinase I, used in many leading hemostasis monitoring devices. Mr. DeLuccia began his career as a pharmaceutical sales representative for Pfizer, Inc. (or Pfizer) and progressed to Director of Marketing, Pfizer Laboratories Division, and to Vice President Marketing and Sales Operations for Pfizer’s Roerig Division. Mr. DeLuccia received a Bachelor of Business Administration with a concentration in Marketing and a Master’s Degree in Business Administration from Iona College. Mr. DeLuccia was selected to serve as Chairman of our board of directors because of his extensive executive leadership and experience in the pharmaceutical industry. Carl V. Sailer — Director Mr. Sailer has served as our director since October 2018. Since May 2019, Mr. Sailer has served as VP, Global Account Lead for Syneos Health (Nasdaq: SYNH). Previously, Mr. Sailer served as VP, Sales and Marketing for Emisphere Technologies from October 2012 until March 2019, Vice President of Commercial Operations at New American Therapeutics from August 2010 to September 2012, and VP, Commercial Operations Akrimax Pharmaceuticals from May 2008 to July 2010. Mr. Sailer started his career in various sales, marketing and sales management roles in the pharmaceutical and consumer products divisions of Bristol-Myers Squibb and Bayer Healthcare. Mr. Sailer has over 25 years of experience as a commercial leader in the biopharmaceutical industry. Mr. Sailer earned a Master of Business Administration from Hofstra University and a Bachelor of Science in Marketing from Seton Hall University, where he currently serves on the Advisory Board of the Market Research Center at the Stillman School of Business. Mr. Sailer was selected to serve on our board of directors because of his extensive experience in the pharmaceutical and consumer goods industries. Thomas Harrison — Director Mr. Harrison has served as our director since July 2021. Since June 2016, Mr. Harrison has served as Chairman Emeritus of the Diversified Agency Services (“DAS”) division of Omnicom Group Inc. (NYSE: OMC), the world’s largest group of marketing services companies, having previously served as its President, then Chairman and CEO. DAS provides an unparalleled range of marketing communications services including public relations, crisis management, branding, sales promotion, customer relationship management and specialty communications including health care advertising. With over 5000 worldwide clients, the DAS division under Mr. Harrison had annual revenues of over $6.0 84 Table of Contents billion and became the largest business unit within Omnicom Group. Under Mr. Harrison’s leadership, the DAS division grew from Omnicom’s smallest to its largest division and accounted for over 50% of Omnicom’s total revenues. He acquired and led a group of companies which became the most influential in their respective disciplines and built the largest, most innovative, diverse and relevant group of specialized agencies. Mr. Harrison’s multi-faceted career brought him to Omnicom in 1992 when Omnicom acquired the firm he co-founded, Harrison & Star Business Group, which was the most successful and rapidly growing agency group in the healthcare industry. Mr. Harrison served as Chairman of the Harrison & Star Group and Chairman of Diversified Healthcare Communications, a group of eight healthcare agencies within Omnicom, until his appointment as President of DAS in 1997. He was named Chairman and Chief Executive of DAS in 1998 and remained in this role until being named Chairman Emeritus in 2013. With an advanced degree in cell biology and physiology, Mr. Harrison began his business career at Pfizer Laboratories as a pharmaceutical sales representative His agency, Harrison & Star, was an entrepreneurial agency that fused high science with high creativity. The agency became uniquely positioned in the market due to its understanding of the clinical and scientific underpinnings of prescription product promotion and its ability to communicate with practicing physicians using the language of science not sales. Mr. Harrison brought his scientific acumen and career experience in healthcare, wellness, branding and communication to the evolving cannabis marketplace in 2015 when he joined the Board of Directors of Zynerba Pharmaceuticals, a leader in pharmaceutically produced transdermal cannabinoid therapies for rare and near-rare psychiatric disorders. Mr. Harrison joined Merida Capital Partners in 2019 as Senior Operating Partner. At Merida, he serves as a strategic and operational advisor across the firm’s portfolio companies. Mr. Harrison is focused on contributing his expertise to this dynamic industry as it continues to unfold. Mr. Harrison is a member of the Executive Committee of the Montefiore Health System. He also serves on the board of Madison Logic, a digital business to business agency (2017 – Present). Most recently, Mr. Harrison was appointed to the board of MainStem, a cannabis-related supply company, New Frontier Data, a private market research company (2022 – Present), and also ACTV8me (2019 – Present), a digital advertising attribution company. Mr. Harrison is a past board member at ePocrates, a publicly traded healthcare information company, where he served from 2006 until its acquisition in 2013 and he has also served as a board member for The Morgans Hotel Group (2006 – 2013). Mr. Harrison joined the board of Dipexium Pharmaceuticals in 2011 and served until its acquisition in 2017. He was a board member of rVue, a digital out-of-home media company from 2013 until 2016 and sat on the board of Social Growth Technologies from 2014 until its acquisition in 2016. Mr. Harrison was appointed to the board of directors of Zynerba Pharmaceuticals in 2015 serving as Chair of the Nominations and Corporate Governance Committee and as a member of the Compensation Committee until 2019 when he joined Merida Capital Partners. Mr. Harrison earned an LH.D and Masters of Science in cell biology from West Virginia University, and a Bachelor of Science in cell biology and physiology from Shepherdstown University. Mr. Harrison was selected to serve on our board of directors because of his extensive public company experience and his knowledge of the pharmaceutical industry. Joseph C. Scodari — Director Mr. Scodari has served as our director since July 2021. Since October 2017, Mr. Scodari has served as Chairman of the Board of Directors of Optinose (Nasdaq: OPTN), a specialty pharmaceutical company focused on serving the needs of patients cared for by ear, nose and throat (“ENT”) and allergy specialists. Mr. Scodari was previously Worldwide Chairman, Pharmaceuticals Group, of Johnson & Johnson, and a member of Johnson & Johnson’s Executive Committee from March 2005 until his retirement in March 2008. From 2003 to March 2005, Mr. Scodari was Company Group Chairman of Johnson & Johnson’s Biopharmaceutical Business. Mr. Scodari joined Centocor in 1996 as President, Pharmaceutical Division and was named President and COO in 1998, a position that he served in until Conocor Inc.’s acquisition by Johnson & Johnson in 1999. Mr. Scodari began his career in 1974 in sales for Winthrop Laboratories, Division of Sterling Drug. He progressed through various management positions, eventually leading the Diagnostic 85 Table of Contents Imaging Division for Winthrop and later Strategic Marketing at the corporate level for the Imaging business. Mr. Scodari joined Rorer Pharmaceuticals (shortly thereafter, Rhône-Poulenc Rorer) in 1989 as Vice President of Marketing and Business Development. He later served as Vice President and General Manager for the United States, and subsequently, North America, and finally as Senior Vice President and General Manager for the Americas. Mr. Scodari previously served as a director of Actelion Pharmaceuticals, Ltd., Endo Health Solutions, Inc. and Covance, Inc. Mr. Scodari has served on various non-profit boards, including the University of the Health Sciences in Philadelphia, the Board of Overseers for the Robert Wood Johnson School of Medicine, and on the Board of Trustees for Gwynedd Mercy College. He has also served on various industry association boards, including the NWDA Associate Member Board, the National Pharmaceutical Council, as Vice Chairman of the Biotechnology Industry Organization (“BIO”), and Chairman of PA BIO. Mr. Scodari received a B.A. from Youngstown State University. Mr. Scodari was selected to serve on our board of directors because of his extensive experience in the pharmaceutical industry. Jack H. Dean, Ph.D., Sc.D. (Hon.), DABT, Fellow ATS — Director Dr. Dean has served as our director since July 2021. He previously served as a director of our predecessor, Dipexium Pharmaceuticals (Nasdaq: DPRX), a pharmaceutical company focused on antibiotic drug development from October 2010 until its sale to PLx Pharma Inc. (Nasdaq: PLXP) in a merger valued at $69.0 million in April 2017. Since 2006, Dr. Dean has served as an advisor to the Executive Vice President of Drug Development for Sanofi, consulting on drug development strategy, drug safety issues and immunotoxicology through his company Drug Development Advisors, LLC where he serves as President. Dr. Dean is also a research professor in the departments of Medical Pharmacology and Pharmacology/ Toxicology, Colleges of Medicine and Pharmacy, at University of Arizona in Tucson. Prior to January 2006, Dr. Dean served as the President, U.S. Science and Medical Affairs (R&D), Sanofi in Malvern, Pennsylvania and the Global Director of Preclinical Development for Sanofi. Dr. Dean joined Sterling Winthrop in 1988, as Director of the Department of Toxicology and was appointed Vice President, Drug Safety worldwide in 1989. In addition, Dr. Dean served as Director of the Sterling Winthrop Research Center in Alnwick, England from 1990 to 1992. Dr. Dean was appointed Executive Vice President, Drug Development, in 1992 where he managed Non-Clinical and Clinical Development, and Regulatory Affairs. Before joining Sterling Winthrop, Dr. Dean headed the Department of Cellular and Molecular Toxicology, Chemical Industry Institute of Toxicology, Research Triangle Park, NC from 1982 to 1988. Prior to 1982, he headed the Immunotoxicology Section, National Institute of Environmental Health Services and National Toxicology Program, NIH in Research Triangle Park. From 1972 to 1979, Dr. Dean was in the Department of Immunology at Litton Bionetics (Department Director from 1975 to 1979) conducting research in tumor immunology. Dr. Dean holds a Bachelor of Science in microbiology and a Master of Science in medical microbiology from California State University at Long Beach. He earned a Ph.D. in molecular biology and minor in biochemistry in 1972 from the College of Medicine, University of Arizona. Dr. Dean held adjunct professorships at the University of North Carolina, Chapel Hill and Duke University from 1981 to 1988. Dr. Dean was selected to serve on our board of directors because of his extensive experience in the pharmaceutical industry. James Donohue — Director Mr. Donohue has served as our director since July 2021. Mr. Donohue has been a Vice President with Charles River Associates (Nasdaq: CRAI), a leading global consulting firm specializing in economic, financial, and management consulting services, since April 2004. Mr. Donohue has more than 30 years of experience in valuation, damages, and forensic accounting. Mr. Donohue is a Certified Public Accountant (CPA) in Maryland and has a Bachelor of Science degree in Accountancy from Villanova University. He is also a Certified Valuation Analyst (CVA) and is Accredited in Business Valuation (ABV). Mr. Donohue was selected to serve on our board of directors because of his expertise in financial accounting. Committees of our Board of Directors and Meetings Meeting Attendance During the fiscal year ended December 31, 2023, there were nine meetings of our board of directors, and the various committees of our board of directors met a total of five times. No director attended fewer than 75% of the total number of meetings of our board of directors and of committees of our board of directors on which he or she served during the 86 Table of Contents fiscal year ended December 31, 2023. Our board of directors has adopted a policy under which each member of our board of directors makes every effort to attend each annual meeting of our stockholders. Audit Committee Our Audit Committee met four times during the year ended December 31, 2023. This committee currently has three members, James Donohue (Chair), Joseph C. Scodari and Thomas Harrison. Our Audit Committee’s role and responsibilities are set forth in the Audit Committee’s written charter and include the authority to retain and terminate the services of our independent registered public accounting firm. In addition, the Audit Committee reviews annual financial statements, considers matters relating to accounting policy and internal controls and reviews the scope of annual audits. All members of the Audit Committee satisfy the current independence standards promulgated by the SEC and by The Nasdaq Stock Market, as such standards apply specifically to members of audit committees. Our board of directors has determined that each of James Donohue, Joseph C. Scodari and Thomas Harrison is an “audit committee financial expert,” as the SEC has defined that term in Item 407 of Regulation S-K. A copy of the Audit Committee’s written charter is publicly available on our website at www.acurxpharma.com. Compensation Committee Our Compensation Committee met one time during the year ended December 31, 2023. This committee currently has three members, Joseph C. Scodari (Chair), Thomas Harrison and Carl V. Sailer. Our Compensation Committee’s role and responsibilities are set forth in the Compensation Committee’s written charter and includes reviewing, approving and making recommendations regarding our compensation policies, practices and procedures to ensure that legal and fiduciary responsibilities of our board of directors are carried out and that such policies, practices and procedures contribute to our success. Our Compensation Committee also administers our 2021 Equity Incentive Plan. The Compensation Committee is responsible for the determination of the compensation of our chief executive officer and shall conduct its decision making process with respect to that issue without the chief executive officer present. All members of the Compensation Committee qualify as independent under the definition promulgated by The Nasdaq Stock Market. Our Compensation Committee has adopted processes and procedures for determining executive and director compensation. Generally, our Compensation Committee evaluates and approves our compensation practices for the current year and determines compensation levels. The Compensation Committee annually evaluates the Chief Executive Officer’s performance in light of relevant corporate goals and objectives, and approves, or recommends to the board of directors for approval, the Chief Executive Officer’s compensation. For executives other than the Chief Executive Officer, our Compensation Committee annually reviews and approves, or recommends to the board of directors for approval, the compensation of such executive officers. Additionally, our Compensation Committee annually reviews and approves, or recommends to the board of directors for approval, the compensation of our directors, including with respect to any equity-based plans. The enumerated processes and procedures of our Compensation Committee are included in our Compensation Committee’s written charter, which is publicly available on our website at www.acurxpharma.com. The Compensation Committee’s independent compensation consultant during fiscal year 2023 was Pearl Meyer & Partners, LLC (“Pearl Meyer”). Pearl Meyer was engaged by, and reported directly to, the Compensation Committee, which has the sole authority to hire or fire Pearl Meyer and to approve fee arrangements for work performed. Pearl Meyer assisted the Compensation Committee in fulfilling its responsibilities under its charter, including advising on proposed compensation packages for executive officers, compensation program design and market practices generally. The Compensation Committee has authorized Pearl Meyer to interact with management on behalf of the Compensation Committee, as needed in connection with advising the Compensation Committee, and Pearl Meyer is included in discussions with management and, when applicable, the Compensation Committee’s outside legal counsel on matters being brought to the Compensation Committee for consideration. The Compensation Committee consulted with Pearl Meyer in connection with its evaluation of 2023 year-end compensation. 87 Table of Contents A copy of the Compensation Committee’s written charter is publicly available on our website at www.acurxpharma.com. Director Nominations We do not have a standing nominating committee. In accordance with Rule 5605(e)(2) of the Nasdaq rules, a majority of the independent directors may recommend a director nominee for selection by the board of directors. The board of directors believes that the independent directors can satisfactorily carry out the responsibility of properly selecting or approving director nominees without the formation of a standing nominating committee. As there is no standing nominating committee, we do not have a nominating committee charter in place. The board of directors will also consider director candidates recommended for nomination by our stockholders during such times as they are seeking proposed nominees to stand for election at the next annual meeting of stockholders (or, if applicable, a special meeting of stockholders). We have not formally established any specific, minimum qualifications that must be met or skills that are necessary for directors to possess. In general, in identifying and evaluating nominees for director, the board of directors considers educational background, diversity of professional experience, knowledge of our business, integrity, professional reputation, independence, wisdom and the ability to represent the best interests of our stockholders. Board Leadership Structure The positions of our executive chairman of the board and chief executive officer are separated, with Mr. Luci serving as our Chief Executive Officer and Mr. DeLuccia serving as the executive chairman of our board of directors. Separating these positions allows Mr. Luci, as our Chief Executive Officer, to focus on our day-to-day business, while allowing the chairman of the board to lead the board of directors in its fundamental role of providing advice to and independent oversight of management. Our board of directors believes that this structure ensures a greater role for the independent directors in the oversight of our company and active participation of the independent directors in setting agendas and establishing priorities and procedures for the work of our board of directors. Our board of directors believes its administration of its risk oversight function has not affected its leadership structure. Our board of directors believes that having separate positions is the appropriate leadership structure for us at this time and demonstrates our commitment to good corporate governance. Role in Risk Oversight Our board of directors oversees the management of risks inherent in the operation of our business and the implementation of our business strategies. Our board of directors performs this oversight role by using several different levels of review. In connection with its reviews of our operations and corporate functions, our board of directors addresses the primary risks associated with those operations and corporate functions. In addition, our board of directors reviews the risks associated with our business strategies periodically throughout the year as part of its consideration of undertaking any such business strategies. Each of our board committees also oversees the management of our risks that fall within the committee’s areas of responsibility. In performing this function, each committee has full access to management, as well as the ability to engage advisors. Our Chief Executive Officer reports risk management controls and methodologies to the Audit Committee and is responsible for identifying, evaluating and implementing risk management controls and methodologies to address any identified risks. In connection with its risk management role, our Audit Committee meets privately with representatives from our independent registered public accounting firm and our Chief Executive Officer. The Audit Committee oversees the operation of our risk management program, including the identification of the primary risks associated with our business and periodic updates to such risks, and reports to our board of directors regarding these activities. 88 Table of Contents Executive Officers Set forth below are the names, ages and positions of each of our executive officers. David P. Luci — President and Chief Executive Officer, Director For biographical information for David P. Luci, age 57, see “Our Board of Directors  — David P. Luci” above. Robert J. DeLuccia — Executive Chairman, Director For biographical information for Robert J. DeLuccia, age 78, see “Our Board of Directors  — Robert J. DeLuccia” above. Robert Shawah — Chief Financial Officer Mr. Shawah, age 57, has served as our Chief Financial Officer since June 2021. Mr. Shawah previously served as our Chief Accounting Officer and Vice President of Finance from February 2018 to June 2021. Previously, Mr. Shawah served as Chief Accounting Officer of Dipexium Pharmaceuticals, Inc. (Nasdaq: DPRX) from 2014 until when Dipexium Pharmaceuticals was sold to PLX Pharma (Nasdaq: PLXP) in a merger valued at $69.0 million in April 2017. Further, Mr. Shawah has served as Vice President of Baldwin Pearson & Co, Inc., a commercial real estate firm. From August 2018 to December 2018, Mr. Shawah served as a director for Ameri100, a software integration company. Mr. Shawah graduated from Bucknell University with a degree as a Bachelor of Science in Business Administration with a concentration in Accounting. Code of Conduct and Ethics We have adopted a code of conduct and ethics that applies to all of our employees, including our chief executive officer and chief financial officer. The text of the code of conduct and ethics is posted on our website at www.acurxpharma.com and will be made available to stockholders without charge, upon request, in writing to the Corporate Secretary at 259 Liberty Avenue, Staten Island, NY 10305. Disclosure regarding any amendments to, or waivers from, provisions of the code of conduct and ethics that apply to our directors, principal executive officer and principal financial officer will be included in a Current Report on Form 8-K within four business days following the date of the amendment or waiver, unless website posting or the issuance of a press release of such amendments or waivers is then permitted by the rules of The Nasdaq Stock Market. Item 11. Executive Compensation. Summary Compensation Table The following table contains information concerning the compensation during each of the two years ended December 31, 2023 and 2022 to persons covered by Item 402(m)(2) of Regulation S-K (the “named executive officers”). ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Non-equity ​ Nonqualified ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ incentive ​ deferred ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Stock ​ Option ​ plan ​ compensation ​ All other ​ ​ ​ ​ ​ ​ Salary ​ Bonus ​ awards ​ awards ​ compensation ​ earnings ​ compensation ​ Total Name and principal position Year ($) ​ ($) ($) ($) ($) ($) ($) (1) ($) David P. Luci ​ 2023 ​ 475,000 ​ 193,978 ​ — ​ — ​ — ​ 354,900 ​ — ​ 1,023,878 President and Chief Executive Officer ​ 2022 ​ 475,000 (2) 180,000 ​ — ​ — ​ — ​ — ​ — ​ 655,000 Robert J. DeLuccia ​ 2023 ​ 485,000 ​ 193,978 ​ — ​ — ​ — ​ 354,900 ​ 22,558 ​ 1,056,436 Executive Chairman ​ 2022 ​ 475,000 (3) 180,000 ​ — ​ — ​ — ​ — ​ 22,186 ​ 677,186 Robert G. Shawah ​ 2023 ​ 375,000 ​ 95,288 ​ — ​ — ​ — ​ 204,750 ​ — ​ 675,038 Chief Financial Officer ​ 2022 ​ 300,000 (4) 75,000 ​ — ​ — ​ — ​ — ​ — ​ 375,000 ​ 89 Table of Contents (1) Other compensation represents health care insurance. ​ (2) Mr. Luci’s base annual salary was $475,000 for the years ended December 31, 2023 and 2022. Mr. Luci received a stock option grant in 2023 with an exercise price of $3.41. The options were valued using the Black Scholes option valuation model. The options had no intrinsic value at March 14, 2024. (3) Mr. DeLuccia’s base salary was $485,000 for the year ended December 31, 2023 and $475,000 for the year ended December 31, 2022. Mr. DeLuccia received a stock option grant in 2023 with an exercise price of $3.41. The options were valued using the Black Scholes option valuation model. The options had no intrinsic value at March 14, 2024. ​ (4) Mr. Shawah’s base salary was $375,000 for the year ended December 31, 2023 and $300,000 for the year ended December 31, 2022. Mr. Shawah received a stock option grant in 2023 with an exercise price of $3.41. The options were valued using the Black Scholes option valuation model. The options had no intrinsic value at March 14, 2024. ​ Narrative Disclosure to Summary Compensation Table ​ Executive Employment Agreements ​ The following summaries set forth the material terms of the employment agreements entered into with our named executive officers. Each such agreement provides generally that, in the event the named executive officer’s role is terminated by the Board without cause or the named executive officer resigns for “good reason,” they will be entitled to receive an amount equal to two times the sum of their annual base salary and target bonus (DeLuccia and Luci) and one times the sum of annual base salary and target bonus (Shawah), in each case, plus any other incentive compensation earned but unpaid as of the date of termination, and their stock option grant(s) will become fully vested as of the date of termination. ​ Robert J. DeLuccia, Executive Chairman of the Board and Director ​ Mr. DeLuccia entered into an employment agreement with us, dated February 5, 2018, and an amended employment agreement dated January 12, 2021. Mr. DeLuccia entered into an Amended and Restated Employment Agreement, dated May 25, 2021, and effective June 29, 2021 (the “DeLuccia Amended and Restated Employment Agreement”). The DeLuccia Amended and Restated Employment Agreement provides for a base salary of $450,000 per year and a potential incentive award bonus of up to 40% (or a higher or lower amount if so determined by the Board) of his base salary on an annualized basis (which amount shall be fixed for the first 12 months of the term). Effective January 13, 2022, Mr. DeLuccia’s base salary was increased to $475,000 and his annual performance bonus increased to up to 45% percent of his base salary. Effective February 13, 2023, Mr. DeLuccia’s salary was increased to $485,000 and his annual bonus target was increased to up to 50% percent of his salary. Effective March 1, 2024, Mr. DeLuccia’s salary was increased to $550,000. Mr. DeLuccia’s employment agreement provides for the grant of an initial stock option award equal to 500,000 shares of common stock, 25% of which vested on the closing date of our IPO and 75% of which vest pro rata on a monthly basis for 36 months thereafter, subject to accelerated vesting under certain circumstances. The options will have an exercise price equal to the fair market value of our common stock on the date of grant with a term of ten years from the date of grant. Mr. DeLuccia also earned a one-time bonus of $60,000 upon the closing of our IPO. ​ David P. Luci, President and Chief Executive Officer, Director ​ Mr. Luci entered into an employment agreement with us, dated February 5, 2018, and an amended employment agreement dated January 12, 2021. Mr. Luci entered into an Amended and Restated Employment Agreement, dated as of May 25, 2021, and effective June 29, 2021 (the “Luci Amended and Restated Employment Agreement”). The Luci 90 Table of Contents Amended and Restated Employment Agreement provides for a base salary of $450,000 per year and a potential incentive award bonus of up to 40% (or a higher or lower amount if so determined by the Board) of his base salary on an annualized basis (which amount shall be fixed for the first 12 months of the term). Effective January 13, 2022, Mr. Luci’s base salary was increased to $475,000 and his annual performance bonus increased to up to 45% percent of his base salary. Effective February 13, 2023, the annual bonus target was increased to up to 50% percent of his salary. Effective March 1, 2024, Mr. Luci’s salary was increased to $550,000. Mr. Luci’s employment agreement provides for the grant of an initial stock option award equal to 500,000 shares of common stock, 25% of which vested on the closing date of our IPO and 75% of which vest pro rata on a monthly basis for 36 months thereafter, subject to accelerated vesting under certain circumstances. The options will have an exercise price equal to the fair market value of our common stock on the date of grant with a term of ten years from the date of grant. Mr. Luci also earned a one-time bonus of $60,000 upon the closing of our IPO. ​ Robert Shawah, Chief Financial Officer ​ Mr. Shawah entered into an employee offer letter with us, dated June 1, 2018, and an amended offer letter, dated January 2, 2019, and the second amended offer letter dated January 12, 2021. In addition, we and Mr. Shawah entered into the Amended and Restated Employment Agreement, dated May 25, 2021, and effective June 29, 2021 (the “Shawah Amended and Restated Employment Agreement”). The Shawah Amended and Restated Employment Agreement provides for a base salary of $250,000 per year and a potential incentive award bonus of up to 30% (or a higher or lower amount if so determined by the Board) of his base salary on an annualized basis. Effective January 13, 2022, Mr. Shawah’s base salary was increased to $300,000 and his annual performance bonus increased to up to 35% percent of his base salary. Effective February 13, 2023, Mr. Shawah’s salary was increased to $375,000. Effective March 1, 2024, Mr. Shawah’s salary was increased to $400,000 with a 40% bonus target. Mr. Shawah’s employment agreement provides for the grant of an initial stock option award equal to 200,000 shares of common stock, 25% of which vested on the closing date of our IPO and 75% of which vest pro rata on a monthly basis for 36 months thereafter, subject to accelerated vesting under certain circumstances. The options will have an exercise price equal to the fair market value of our common stock on the date of grant with a term of ten years from the date of grant. Mr. Shawah also earned a one-time bonus of $25,000 upon the closing of our IPO. ​ Other Compensation Policies and Practices ​ Insider Trading Policy ​ Our Insider Trading Policy prohibits directors, executive officers and other “designated insiders” from engaging in most transactions involving our common stock during periods, determined by us, that those individuals are most likely to be aware of material, non-public information. Directors, executive officers and other designated insiders subject to stock ownership guidelines must clear all their transactions in our common stock with the Chief Financial Officer in advance. Additionally, it is our policy that directors, executive officers and designated insiders are not permitted to hedge their ownership of Company securities, including (a) trading in publicly-traded options, (b) selling any security of the Company “short” and (c) purchasing any financial instruments (including straddles, collars or other similar risk reduction or hedging devices) or otherwise engaging in transactions that are designed to or have the effect of offsetting any decrease in the market value of our securities. ​ 91 Table of Contents Outstanding Equity Awards at 2023 Fiscal Year-End ​ The following table shows grants of stock options and grants of unvested stock awards outstanding on the last day of the fiscal year ended December 31, 2023, to each of the executive officers named in the Summary Compensation Table. ​ Outstanding Equity Awards at Fiscal Year-End ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Option Awards ​ ​ ​ ​ ​ ​ ​ Stock Awards ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Equity ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Incentive ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Equity ​ Plan ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Incentive ​ Awards: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Plan ​ Market or ​ ​ ​ ​ ​ ​ Equity ​ ​ ​ ​ ​ ​ ​ ​ ​ Awards: ​ Payout ​ ​ ​ ​ ​ ​ Incentive ​ ​ ​ ​ ​ ​ ​ ​ ​ Number of ​ Value of ​ ​ ​ ​ ​ ​ Plan ​ ​ ​ ​ ​ ​ ​ Market ​ Unearned ​ Unearned ​ ​ ​ ​ ​ ​ Awards: ​ ​ ​ ​ ​ Number ​ Value of ​ Shares, ​ Shares, ​ ​ Number of ​ Number of ​ Number of ​ ​ ​ ​ ​ of Shares ​ Shares or ​ Units or ​ Units or ​ ​ Securities ​ Securities ​ Securities ​ ​ ​ ​ ​ or Units ​ Units of ​ Other ​ Other ​ ​ Underlying ​ Underlying ​ Underlying ​ ​ ​ ​ ​ of Stock ​ Stock ​ Rights ​ Rights ​ ​ Unexercised ​ Unexercised ​ Unexercised ​ Option ​ ​ ​ that have ​ that have ​ that have ​ that have ​ ​ Options ​ Options ​ Unearned ​ Exercise ​ Option ​ not ​ not ​ not ​ not ​ ​ Exercisable ​ Unexercisable ​ Options ​ Price ​ Expiration ​ Vested ​ Vested ​ Vested ​ Vested Name and Principal Position ​ (#) ​ (#) ​ (#) ​ ($) ​ Date ​ (#) ​ ($) ​ (#) ​ ($) David P. Luci ​ 315,000 ​ 35,000 ​ — ​ 6.26 ​ June 2031 ​ — ​ — ​ — ​ — President and Chief Executive Officer  (1) ​ 437,500 ​ 62,500 ​ — ​ 6.18 ​ July 2031 ​ — ​ — ​ — ​ — ​ ​ 36.111 ​ 93,889 ​ — ​ 3.41 ​ Feb 2033 ​ — ​ — ​ — ​ — Robert J. DeLuccia ​ 315,000 ​ 35,000 ​ — ​ 6.26 ​ June 2031 ​ — ​ — ​ — ​ — Executive Chairman  (2) ​ 437,500 ​ 62,500 ​ — ​ 6.18 ​ July 2031 ​ — ​ — ​ — ​ — ​ ​ 36,111 ​ 93,889 ​ — ​ 3.41 ​ Feb 2033 ​ — ​ — ​ — ​ — Robert G. Shawah ​ 63,000 ​ 7,000 ​ — ​ 6.26 ​ June 2031 ​ — ​ — ​ — ​ — Chief Financial Officer  (3) ​ 175,000 ​ 25,000 ​ — ​ 6.18 ​ July 2031 ​ — ​ — ​ — ​ — ​ ​ 20,833 ​ 54,167 ​ — ​ 3.41 ​ Feb 2033 ​ — ​ — ​ — ​ — ​ (1) On June 29, 2021 (the “June Grant Date”), Mr. Luci was granted stock options to purchase 350,000 shares of common stock. 40% of the stock options granted became vested and exercisable on the June Grant Date, and 60% of the stock options shall become vested and exercisable as of each monthly anniversary from the June Grant Date, such that all stock options shall be fully vested and exercisable by June 29, 2024. On July 1, 2021 (the “July Grant Date”), Mr. Luci was granted stock options to purchase 500,000 shares of common stock in connection with his service as President and Chief Executive Officer pursuant to his employment agreement. 25% of the stock options granted became vested and exercisable on the July Grant Date, and 75% of the stock options shall become vested and exercisable as of each monthly anniversary from the July Grant Date, such that all stock options shall be fully vested and exercisable by July 1, 2024. On February 13, 2023, (the “February Grant Date”), Mr. Luci was granted stock options to purchase 130,000 shares of common stock in connection with his service as President and Chief Executive Officer pursuant to his employment agreement, and such stock options shall become vested and exercisable pro-rata on a monthly basis over 36 months, such that all stock options shall be fully vested and exercisable by February 13, 2026. 92 Table of Contents (2) On the June Grant Date, Mr. DeLuccia was granted stock options to purchase 350,000 shares of common stock. 40% of the stock options granted became vested and exercisable on the June Grant Date, and 60% of the stock options shall become vested and exercisable as of each monthly anniversary from the June Grant Date, such that all stock options shall be fully vested and exercisable by June 29, 2024. On the July Grant Date, the Mr. DeLuccia was granted stock options to purchase 500,000 shares of common stock in connection with his service as the Executive Chairman pursuant to his employment agreement. 25% of the stock options granted became vested and exercisable on the July Grant Date, and 75% of the stock options shall become vested and exercisable as of each monthly anniversary from the July Grant Date, such that all stock options shall be fully vested and exercisable by July 1, 2024. On February 13, 2023, (the “February Grant Date”), Mr. DeLuccia was granted stock options to purchase 130,000 shares of common stock in connection with his service as Executive Chairman pursuant to his employment agreement, and such stock options shall become vested and exercisable pro-rata on a monthly basis over 36 months, such that all stock options shall be fully vested and exercisable by February 13, 2026. (3) On the June Grant Date, Mr. Shawah was granted stock options to purchase 70,000 shares of common stock. 40% of the stock options granted became vested and exercisable on the June Grant Date, and 60% of the stock options shall become vested and exercisable as of each monthly anniversary from the June Grant Date, such that all stock options shall be fully vested and exercisable by June 29, 2024. On the July Grant Date, Mr. Shawah was granted stock options to purchase 200,000 shares of common stock in connection with his service as Chief Financial Officer pursuant to his employment agreement. 25% of the stock options granted became vested and exercisable on the July Grant Date, and 75% of the stock options shall become vested and exercisable as of each monthly anniversary from the July Grant Date, such that all stock options shall be fully vested and exercisable by July 1, 2024. On February 13, 2023, (the “February Grant Date”), Mr. Shawah was granted stock options to purchase 75,000 shares of common stock in connection with his service as Chief Financial Officer pursuant to his employment agreement, and such stock options shall become vested and exercisable pro-rata on a monthly basis over 36 months, such that all stock options shall be fully vested and exercisable by February 13, 2026. ​ Director Compensation ​ The following table shows the total compensation paid or accrued during the fiscal year ended December 31, 2023, to each of our non-employee directors. Directors who are employed by us are not compensated for their service on our board of directors. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Fees ​ ​ ​ ​ ​ ​ ​ Nonqualified ​ ​ ​ ​ ​ ​ Earned or ​ ​ ​ ​ ​ Non-Equity ​ Deferred ​ ​ ​ ​ ​ ​ Paid in ​ Stock ​ Option ​ Incentive Plan ​ Compensation ​ All Other ​ ​ ​ ​ Cash ​ Awards ​ Awards (1) ​ Compensation ​ Earnings ​ Compensation ​ Total Name ($) ($) ($) ($) ($) ($) ($) Carl V. Sailer (2) ​ 45,000 ​ — ​ 21,440 ​ — ​ — ​ — ​ 66,440 Jack H. Dean (3) ​ 40,000 ​ — ​ 21,440 ​ — ​ — ​ — ​ 61,440 Joseph C. Scodari (4) ​ 57,500 ​ — ​ 21,440 ​ — ​ — ​ — ​ 78,940 Thomas Harrison (5) ​ 52,500 ​ — ​ 21,440 ​ — ​ — ​ — ​ 73,940 James Donohue (6) ​ 55,000 ​ — ​ 21,440 ​ — ​ — ​ — ​ 76,440 ​ (1) These amounts represent the aggregate grant date fair value of options granted to each director on June 15, 2023 computed in accordance with FASB ASC Topic 718. A discussion of the assumptions used in determining grant date fair value may be found in Note 5 to our financial statements included in this Form 10-K. Such options vest on the one-year anniversary of the grant date. (2) Mr. Sailer had 60,000 option awards outstanding at December 31, 2023. (3) Mr. Dean had 60,000 option awards outstanding at December 31, 2023. 93 Table of Contents (4) Mr. Scodari had 60,000 option awards outstanding at December 31, 2023. (5) Mr. Harrison had 60,000 option awards outstanding at December 31, 2023. (6) Mr. Donohue had 60,000 option awards outstanding at December 31, 2023. ​ During the fiscal year ended December 31, 2023, we paid an annual cash retainer of $40,000 to each independent director for their service on our board of directors. In addition to the annual retainer, the chairpersons of the Audit Committee and Compensation Committee are entitled to an additional cash retainer of $15,000 and $10,000 per year, respectively. Non-chair members of the Audit Committee and Compensation Committee are entitled to an additional cash retainer of $7,500 and $5,000 per year, respectively. ​ Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. Security Ownership of Certain Beneficial Owners and Management The following table sets forth certain information with respect to the beneficial ownership of our common stock as of March 15, 2024, for (a) the executive officers named herein, (b) each of our directors, (c) all of our current directors and executive officers as a group and (d) each stockholder known by us to own beneficially more than 5% of our common stock. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities. We deem shares of common stock that may be acquired by an individual or group within 60 days of March 15, 2024, pursuant to the exercise of options or warrants to be outstanding for the purpose of computing the percentage ownership of such individual or group, but those shares are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table. Except as indicated in footnotes to this table, we believe that the stockholders named in this table have sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by them based on information provided to us by these stockholders. Percentage of ownership is based on 15,757,102 shares of common stock outstanding on March 15, 2024. ​ ​ ​ ​ ​ ​ ​ Shares Beneficially Owned Name of Beneficial Owner ​ Number ​ Percent Named Executive Officers and Directors ​ ​ ​ ​ David P. Luci (1) ​ 2,020,448 ​ 12.1% Robert G. Shawah (2) ​ 488,464 ​ 3.0% Robert J. DeLuccia (3) ​ 1,894,034 ​ 11.4% Joseph C. Scodari (4) ​ 50,299 ​ * Jack H. Dean (5) ​ 69,915 ​ * Thomas Harrison (6) ​ 48,761 ​ * Carl Sailer (7) ​ 201,178 ​ 1.3% James Donohue (8) ​ 65,972 ​ * All directors and current executive officers as a group (eight (8) persons) ​ 4,839,071 ​ 29.3% ​ * Represents beneficial ownership of less than 1% of the outstanding shares of our common stock. (1) Consists of 1,098,280 shares of our common stock, 36,612 shares of our common stock underlying warrants to purchase shares of our common stock and 885,556 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held of record by Mr. Luci. (2) Consists of 189,200 shares of our common stock, 625 shares of our common stock underlying warrants to purchase shares of our common stock and 298,639 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held of record by Mr. Shawah. 94 Table of Contents (3) Consists of 964,782 shares of our common stock, 43,696 shares of our common stock underlying warrants to purchase shares of our common stock and 885,556 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held of record by Mr. DeLuccia. (4) Consists of 3,077 shares of our common stock and 47,222 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024. (5) Consists of 17,693 shares of our common stock, 5,000 shares of our common stock underlying warrants to purchase shares of our common stock and 47,222 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held by Dr. Dean and the Dean Family Trust. (6) Consists of 1,539 shares of our common stock and 47,222 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held of record by Mr. Harrison. (7) Consists of 117,552 shares of our common stock, and 36,404 shares of our common stock underlying warrants to purchase shares of our common stock and 47,222 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024, held of record by Mr. Sailer. (8) Consists of 12,500 shares of our common stock, 6,250 shares of our common stock underlying warrants to purchase shares of our common stock and 47,222 shares of our common stock issuable upon exercise of stock options within 60 days of March 15, 2024. Equity Compensation Plan Information ​ The following table provides certain aggregate information with respect to all of the Company’s equity compensation plans in effect as of December 31, 2023. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ (a) ​ ​ (b) ​ (c) ​ ​ ​ ​ ​ ​ ​ ​ ​ Number of ​ ​ ​ ​ ​ ​ ​ ​ ​ securities ​ ​ ​ ​ ​ ​ ​ ​ ​ remaining ​ ​ ​ ​ ​ ​ ​ ​ ​ available for ​ ​ ​ ​ ​ ​ ​ ​ ​ future ​ ​ ​ Number of ​ ​ ​ ​ ​ issuance ​ ​ ​ securities to ​ ​ Weighted ​ under ​ ​ ​ be issued ​ ​ average ​ equity ​ ​ ​ upon ​ ​ exercise ​ compensation ​ ​ ​ exercise of ​ ​ price of ​ plans ​ ​ ​ outstanding ​ ​ outstanding ​ (excluding ​ ​ ​ options, ​ ​ options, ​ securities ​ ​ ​ warrants ​ ​ warrants ​ reflected in ​ ​ and rights ​ and rights column (a) (2) ​ Equity compensation plan approved by security holders (1)(3) ​ 2,874,063 (1) ​ $ 5.41 ​ 485,868 (2) Equity compensation plan not approved by security holders ​ — ​ ​ ​ — ​ — ​ Total ​ 2,874,063 (1) ​ $ 5.41 ​ 485,868 (2) ​ (1) This plan consists of the 2021 Equity Incentive Plan (the “2021 Plan”). For a description of this plan, see Note 5 to the financial statements in this Form 10-K. (2) Consists only of securities remaining available for future issuance under the 2021 Plan. 95 Table of Contents (3) The 2021 Plan provides that the total number of shares of our common stock reserved for issuance thereunder will automatically increase on January 2nd of each year for a period of ten years commencing on January 2, 2022, and ending on January 2, 2031, in an amount equal to the lesser of (i) 4% of the outstanding shares of our common stock on such date and (ii) such number of shares determined by the plan administrator. ​ ​ ​ Item 13. Certain Relationships and Related Transactions, and Director Independence. Certain Relationships and Related Person Transactions Our Audit Committee Charter requires all future transactions between us and any director, executive officer, holder of 5% or more of any class of our capital stock or any member of the immediate family of, or entities affiliated with, any of them, or any other related persons, as defined in Item 404 of Regulation S-K, or their affiliates, in which the amount involved is equal to or greater than $120,000, be approved in advance by our Audit Committee. Any request for such a transaction must first be presented to our Audit Committee for review, consideration and approval. In approving or rejecting any such proposal, our Audit Committee is to consider all available information deemed relevant by the Audit Committee, including, but not limited to, the extent of the related person’s interest in the transaction and whether the transaction is on terms no less favorable to us than terms we could have generally obtained from an unaffiliated third party under the same or similar circumstances. During the fiscal years ended December 31, 2023 and 2022, we have engaged in the following transactions: Investor Rights Agreements We have entered into investor rights agreements with the investors who participated in our private placement financings between March 2018 and October 2019, including Messrs. DeLuccia, Luci, Sailer, Scodari, Harrison and Dean. Each such investor rights agreement imposes certain affirmative obligations on us and also grants certain rights to such investors, including certain registration rights with respect to the securities held by them and certain additional rights. Indemnification Agreements We have entered into indemnification agreements with each of our directors and executive officers (the “Indemnification Agreements”). Such Indemnification Agreements provide for indemnification against expenses, judgments, fines and penalties actually and reasonably incurred by an indemnitee in connection with threatened, pending or completed actions, suits or other proceedings, subject to certain limitations. The Indemnification Agreements also provide for the advancement of expenses in connection with a proceeding prior to a final, non-appealable judgment or other adjudication, provided that the indemnitee provides an undertaking to repay to us any amounts advanced if the indemnitee is ultimately found not to be entitled to indemnification by us. The Indemnification Agreements set forth procedures for making and responding to requests for indemnification or advancement of expenses, as well as dispute resolution procedures that will apply to any dispute between us and an indemnitee arising under the Indemnification Agreements. Participation in Our July 2022 Registered Direct Offering and Concurrent Private Placement In July 2022, we issued and sold in a registered direct offering (i) an aggregate of 1,159,211 shares of our common stock (“Shares”) (consisting of 1,100,000 shares for single healthcare-focused U.S. institutional investor (the “Investor”) and an aggregate of 59,211 for David P. Luci, our President and Chief Executive Officer, Robert J. DeLuccia, our Executive Chairman and Carl V. Sailer, a member of our board of directors (collectively, the “Affiliate Investors”)) at an offering price of $3.25 per share for the Investor and $3.80 per share for the Affiliate Investors and (ii) an aggregate of 130,769 pre-funded warrants exercisable for shares of common stock (the “Pre-Funded Warrants”) to the Investor at an offering price of $3.2499 per Pre-Funded Warrant, for aggregate gross proceeds from the Registered Offering of approximately $4.225 million before deducting the placement agent fee and related offering expenses. 96 Table of Contents In a concurrent private placement (the “Private Placement” and together with the Registered Offering, the “Offerings”), we issued to the Investor and to the Affiliate Investors (i) series A warrants (the “Series A Warrants”) exercisable for an aggregate of 1,289,980 shares of common stock (consisting of Series A Warrants (the “Investor Series A Warrants”) to purchase up to 1,230,769 shares of common stock for the Investor and Series A Warrants (the “Affiliate Series A Warrants”) to purchase up to 59,211 shares of common stock for the Affiliate Investors) at an exercise price of $3.25 per share for the Investor Series A Warrants and $3.55 per share for the Affiliate Series A Warrants and (ii) series B warrants (the “Series B Warrants” and together with the Series A Warrants, the “Warrants” and collectively with the Shares and the Pre-Funded Warrants, the “Securities”) exercisable for an aggregate of 1,289,980 shares of common stock (consisting of Series B Warrants (the “Investor Series B Warrants”) to purchase up to 1,230,769 shares of common stock for the Investor and Series B Warrants (the “Affiliate Series B Warrants”) to purchase up to an aggregate of 59,211 shares of common stock for the Affiliate Investors) at an exercise price of $3.25 per share for the Investor Series B Warrants and $3.55 per share for the Affiliate Series B Warrants. The table below sets forth the aggregate number of Securities issued to our directors, executive officers or holders of more than 5% of our capital stock, or an affiliate or immediate family member thereof, at the time of the Offerings: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Series A ​ Series B ​ Aggregate Participant ​ Shares ​ Warrants ​ Warrants ​ Purchase Price David P. Luci ​ 19,737 ​ 19,737 ​ 19,737 ​ $ 75,000.60 Robert J. DeLuccia ​ 19,737 ​ 19,737 ​ 19,737 ​ $ 75,000.60 Carl V. Sailer ​ 19,737 ​ 19,737 ​ 19,737 ​ $ 75,000.60 ​ Director Independence Please see “Management and Corporate Governance” under Item 10 above. ​ Item 14. Principal Accounting Fees and Services. The following table presents fees for professional audit services rendered by CohnReznick LLP for the audit of the Company’s annual financial statements for the years ended December 31, 2023, and December 31, 2022 and fees billed for other services rendered by CohnReznick LLP during those periods. ​ ​ ​ ​ ​ ​ ​ 2022 ​ 2023 Audit fees: (1) ​ 161,125 ​ 172,650 Audit related fees: (2) ​ 17,000 ​ 55,500 ​ ​ 178,125 ​ 228,150 (1) Audit fees consisted of audit work performed in the preparation of financial statements and the review of interim financial statements, as well as work generally only the independent registered public accounting firm can reasonably be expected to provide. (2) Audit related fees consisted principally of work associated with the procedures for filing with the SEC in conjunction with financing transactions. All fees described above were pre-approved by our Audit Committee. We have furnished the foregoing disclosure to CohnReznick LLP. Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Public Accountant 97 Table of Contents Consistent with SEC policies regarding auditor independence, the Audit Committee has responsibility for appointing, setting compensation and overseeing the work of our independent registered public accounting firm. In recognition of this responsibility, the Audit Committee has established a policy to pre-approve all audit and permissible non-audit services provided by our independent registered public accounting firm. Prior to engagement of an independent registered public accounting firm for the next year’s audit, management will submit an aggregate of services expected to be rendered during that year for each of four categories of services to the Audit Committee for approval. 1. Audit services include audit work performed in the preparation of financial statements, as well as work that generally only an independent registered public accounting firm can reasonably be expected to provide, including comfort letters, statutory audits and attest services and consultation regarding financial accounting and/or reporting standards. 2. Audit-Related services are for assurance and related services that are traditionally performed by an independent registered public accounting firm, including due diligence related to mergers and acquisitions, employee benefit plan audits and special procedures required to meet certain regulatory requirements. 3. Tax services include all services performed by an independent registered public accounting firm’s tax personnel except those services specifically related to the audit of the financial statements, and includes fees in the areas of tax compliance, tax planning and tax advice. 4. Other Fees are those associated with services not captured in the other categories. The Company generally does not request such services from our independent registered public accounting firm. Prior to engagement, the Audit Committee pre-approves these services by category of service. The fees are budgeted and the Audit Committee requires our independent registered public accounting firm and management to report actual fees versus the budget periodically throughout the year by category of service. During the year, circumstances may arise when it may become necessary to engage our independent registered public accounting firm for additional services not contemplated in the original pre-approval. In those instances, the Audit Committee requires specific pre-approval before engaging our independent registered public accounting firm. The Audit Committee may delegate pre-approval authority to one or more of its members. The member to whom such authority is delegated must report, for informational purposes only, any pre-approval decisions to the Audit Committee at its next scheduled meeting. ​ 98 Table of Contents PART IV Item 15. Exhibits, Financial Statement Schedules. (a) The financial statements filed as part of this Form 10-K are listed in the Index to Financial Statements. Certain schedules are omitted because they are not applicable, or not required, or because the required information is included in the financial statements or notes thereto. The Exhibits are listed in Item 15(b) below. (b) Exhibit Index. Exhibit Number Exhibit Description Filed Herewith Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Registration Number 3.1 ​ Certificate of Incorporation of Acurx Pharmaceuticals, Inc. ​ X ​ ​ ​ ​ ​ ​ 3.2 ​ Bylaws of Acurx Pharmaceuticals, Inc. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 4.1 ​ Form of Common Stock Certificate. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 4.2 ​ Form of Series A Warrant . ​ ​ ​ 8-K ​ 07/25/22 ​ 001-40536 4.3 ​ Form of Series B Warrant . ​ ​ ​ 8-K ​ 07/25/22 ​ 001-40536 4.4 ​ Form of Placement Agent Warrant. ​ ​ ​ 8-K ​ 07/25/22 ​ 001-40536 4.5 ​ Form of Series C Warrant . ​ ​ ​ 8-K ​ 5/17/23 ​ 001-40536 4.6 ​ Form of Series D Warrant . ​ ​ ​ 8-K ​ 5/17/23 ​ 001-40536 4.7 ​ Form of 2023 Pre-Funded Warrant. ​ ​ ​ 8-K ​ 5/17/23 ​ 001-40536 4.8 ​ Description of Securities. ​ X ​ ​ ​ ​ ​ ​ 10.1 ​ Form of Indemnification Agreement. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.2 ​ Form of Warrant. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.3 ​ Form of Common Stock Purchase Warrant. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.4 ​ Form of Securities Purchase Agreement. ​ ​ ​ 8-K ​ 07/25/22 ​ 001-40536 10.5 ​ Form of Investor Rights Agreement, by and between the Registrant and certain purchasers. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.6.1+ ​ Acurx Pharmaceuticals, Inc. 2021 Equity Incentive Plan . ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.6.2+ ​ Form of Stock Option Agreement under the 2021 Equity Incentive Plan. ​ ​ ​ S-8 ​ 07/19/21 ​ 333-258026 10.6.3+ ​ Form of Restricted Stock Agreement under the 2021 Equity Incentive Plan. ​ ​ ​ S-8 ​ 07/19/21 ​ 333-258026 10.6.4+ ​ Form of Recapitalization Exchange Option Agreement. ​ ​ ​ S-8 ​ 07/19/21 ​ 333-258026 10.7+ ​ Amended and Restated Employment Agreement, by and between Acurx Pharmaceuticals, Inc. and Robert J. DeLuccia, dated May 25, 2021. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.8+ ​ Amended and Restated Employment Agreement, by and between Acurx Pharmaceuticals, Inc. and David P. Luci, dated May 25, 2021. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 99 Table of Contents Exhibit Number Exhibit Description Filed Herewith Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Registration Number 10.9+ ​ Amended and Restated Employment Agreement, by and between Acurx Pharmaceuticals, Inc. and Robert Shawah, dated May 25, 2021. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.10 ​ Master Clinical Services Agreement, dated October 11, 2019, by and between Acurx Pharmaceuticals, Inc. and Syneos Health, LLC. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.11# ​ Asset Purchase Agreement, dated February 5, 2018, by and between Acurx Pharmaceuticals, Inc. and GLSynthesis Inc. ​ ​ ​ S-1 ​ 05/27/21 ​ 333-256516 10.12 ​ Form of Securities Purchase Agreement, dated as of May 16, 2023, by and between Acurx. Pharmaceuticals, Inc. and the investor ​ ​ ​ 10-Q ​ 8/11/23 ​ 001-40536 10.13 ​ Form of Warrant Amendment Agreement, dated as of May 16, 2023, by and between Acurx. Pharmaceuticals, Inc. and the investor ​ ​ ​ 8-K ​ 05/17/23 ​ 001-40536 10.14 ​ Sales Agreement, dated as of November 15, 2023, between Acurx Pharmaceuticals, Inc. and A.G.P/Alliance Global Partners . ​ ​ ​ 8-K ​ 11/15/23 ​ 001-40536 21.1 ​ Subsidiaries . ​ X ​ ​ ​ ​ ​ ​ 23.1 ​ Consent of CohnReznick LLP. ​ X ​ ​ ​ ​ ​ ​ 31.1 ​ Certification of the Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. ​ X ​ ​ ​ ​ ​ ​ 31.2 ​ Certification of the Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. ​ X ​ ​ ​ ​ ​ ​ 32.1 ​ Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. ​ X ​ ​ ​ ​ ​ ​ 32.2 ​ Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. ​ X ​ ​ ​ ​ ​ ​ 97 ​ Acurx Pharmaceuticals, Inc. Clawback Policy. ​ X ​ ​ ​ ​ ​ ​ 101.INS ​ Inline XBRL Instance Document - the instance document does not appear in ​ X ​ ​ ​ ​ ​ ​ 100 Table of Contents Exhibit Number Exhibit Description Filed Herewith Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Registration Number the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document 101.SCH ​ Inline XBRL Taxonomy Extension Schema Document. ​ X ​ ​ ​ ​ ​ ​ 101.CAL ​ Inline XBRL Taxonomy Extension Calculation Linkbase Document. ​ X ​ ​ ​ ​ ​ ​ 101.DEF ​ Inline XBRL Taxonomy Extension Definition Linkbase Document. ​ X ​ ​ ​ ​ ​ ​ 101.LAB ​ Inline XBRL Taxonomy Extension Labels Linkbase Document. ​ X ​ ​ ​ ​ ​ ​ 101.PRE ​ Inline XBRL Taxonomy Extension Presentation Linkbase Document. ​ X ​ ​ ​ ​ ​ ​ 104 ​ Cover Page Interactive Data File (Embedded within the Inline XBRL document and included in Exhibit). ​ X ​ ​ ​ ​ ​ ​ # Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. + Denotes management compensation plan or contract. ​ Item 16. Form 10-K Summary. Not applicable. ​ ​ 101 Table of Contents ​ SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized . ​ ACURX PHARMACEUTICALS, INC. Date: March 15, 2024 By: /s/ David P. Luci ​ ​ David P. Luci ​ ​ President and Chief Executive Officer ​ Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the Registrant in the capacities and on the dates indicated. Signature Title Date ​ ​ ​ ​ ​ /s/ David P. Luci ​ President, Chief Executive Officer and Director ​ March 15, 2024 David P. Luci (Principal Executive Officer) ​ ​ ​ ​ ​ /s/ Robert G. Shawah ​ Chief Financial Officer ​ March 15, 2024 Robert G. Shawah ( Principal Accounting Officer and Principal Financial Officer ) ​ ​ ​ ​ ​ /s/ Robert J. DeLuccia ​ Executive Chairman ​ March 15, 2024 Robert J. DeLuccia ​ ​ ​ ​ ​ ​ ​ ​ /s/ Carl V. Sailer ​ Director ​ March 15, 2024 Carl V. Sailer ​ ​ ​ ​ ​ ​ ​ ​ /s/ Joseph C. Scodari ​ Director ​ March 15, 2024 Joseph C. Scodari ​ ​ ​ ​ ​ ​ ​ ​ /s/ Thomas Harrison ​ Director ​ March 15, 2024 Thomas Harrison ​ ​ ​ ​ ​ ​ ​ ​ /s/ Jack H. Dean ​ Director ​ March 15, 2024 Jack H. Dean ​ ​ ​ ​ ​ ​ ​ ​ /s/ James Donohue ​ Director ​ March 15, 2024 James Donohue ​ ​ ​ ​ ​ ​ ​ Table of Contents INDEX TO FINANCIAL STATEMENTS Years Ended December 31, 2023 and 2022 Page Report of Independent Registered Public Accounting Firm (PCAOB ID: 596) ​ F-2 Balance Sheets ​ F-3 Statements of Operations ​ F-4 Statements of Changes in Shareholders’ Equity ​ F-5 Statements of Cash Flows ​ F-6 Notes to Financial Statements ​ F-7 ​ ​ ​ F-1 Table of Contents REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM ​ ​ To the Board of Directors and Shareholders Acurx Pharmaceuticals, Inc. ​ Opinion on the Financial Statements ​ We have audited the accompanying balance sheets of Acurx Pharmaceuticals, Inc. (the “Company”) as of December 31, 2023 and 2022, and the related statements of operations, changes in shareholders’ equity and cash flows for the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2023 and 2022 and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America. ​ The Company's Ability to Continue as a Going Concern ​ The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company has incurred recurring losses from operations since inception and has stated that substantial doubt exists about the Company's ability to continue as a going concern. Management's evaluation of the events and conditions and management's plans regarding these matters are also described in Note 1. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. ​ Basis for Opinion These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB. We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion. We have served as the Company’s auditor since 2018. ​ /s/ CohnReznick LLP ​ Parsippany, New Jersey March 15, 2024 ​ F-2 Table of Contents ACURX PHARMACEUTICALS, INC. BALANCE SHEETS AS OF DECEMBER 31, 2023 and 2022 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ December 31, December 31, ​ 2023 2022 ​ ​ ​ ​ ​ ASSETS ​ ​ ​ ​ ​ ​ ​ ​ ​ CURRENT ASSETS ​ ​ Cash ​ $ 7,474,188 ​ $ 9,111,751 Other Receivable ​ ​ 129,159 ​ ​ — Prepaid Expenses ​ 105,776 ​ 264,955 TOTAL ASSETS ​ $ 7,709,123 ​ $ 9,376,706 ​ ​ ​ ​ ​ ​ ​ LIABILITIES AND SHAREHOLDERS’ EQUITY ​ ​ ​ ​ ​ ​ ​ ​ ​ CURRENT LIABILITIES ​ ​ ​ Accounts Payable and Accrued Expenses ​ $ 3,042,438 ​ $ 2,061,685 TOTAL CURRENT LIABILITIES ​ 3,042,438 ​ 2,061,685 ​ ​ ​ ​ ​ ​ ​ TOTAL LIABILITIES ​ 3,042,438 ​ 2,061,685 ​ ​ ​ ​ ​ ​ ​ COMMITMENTS AND CONTINGENCIES ​ ​ ​ ​ ​ ​ ​ ​ ​ SHAREHOLDERS' EQUITY ​ ​ ​ ​ ​ ​ Common Stock; $ .001 par value, 200,000,000 shares authorized, 14,468,229 and 11,627,609 shares issued and outstanding at December 31, 2023 and December 31, 2022, respectively ​ 14,468 ​ 11,628 Additional Paid-In Capital ​ 57,871,070 ​ 45,944,478 Accumulated Deficit ​ ( 53,218,853 ) ​ ( 38,641,085 ) ​ ​ ​ ​ ​ ​ TOTAL SHAREHOLDERS’ EQUITY ​ 4,666,685 ​ 7,315,021 ​ ​ ​ ​ ​ ​ ​ TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY ​ $ 7,709,123 ​ $ 9,376,706 ​ See accompanying notes to financial statements. ​ F-3 Table of Contents ACURX PHARMACEUTICALS, INC. STATEMENTS OF OPERATIONS YEARS ENDED DECEMBER 31, 2023 AND 2022 ​ ​ ​ ​ ​ ​ ​ ​ Years Ended ​ ​ December 31, ​ 2023 2022 ​ ​ ​ ​ ​ ​ ​ OPERATING EXPENSES ​ ​ Research and Development ​ $ 6,043,597 ​ $ 4,754,271 General and Administrative ​ 8,534,171 ​ 7,338,505 ​ ​ ​ ​ ​ ​ ​ TOTAL OPERATING EXPENSES ​ 14,577,768 ​ 12,092,776 ​ ​ ​ ​ ​ ​ ​ NET LOSS ​ $ ( 14,577,768 ) ​ $ ( 12,092,776 ) ​ ​ ​ ​ ​ ​ ​ LOSS PER SHARE ​ ​ Basic and diluted net loss per common share ​ $ ( 1.15 ) ​ $ ( 1.12 ) ​ ​ ​ ​ ​ ​ ​ Weighted average common shares outstanding, basic and diluted ​ 12,671,572 ​ 10,816,412 ​ See accompanying notes to financial statements. ​ F-4 Table of Contents ACURX PHARMACEUTICALS, INC. STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY YEARS ENDED DECEMBER 31, 2023 AND 2022 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Common Stock ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Additional ​ ​ ​ ​ ​ Total ​ ​ ​ Paid-In Accumulated Shareholders’ ​ ​ Shares ​ ​ Amount ​ ​ Capital ​ ​ Deficit ​ ​ Equity Balance at January 1, 2022 10,215,792 $ 10,216 $ 38,948,334 $ ( 26,548,309 ) $ 12,410,241 Share-Based Compensation ​ — ​ — ​ 2,871,681 ​ — ​ ​ 2,871,681 Share-Based Payments to Vendors ​ 114,889 ​ 115 ​ 430,565 ​ — ​ 430,680 Issuance of shares of common stock and pre-funded warrants in registered direct offering, net of $ 529,805 cash issuance costs ​ 1,159,211 ​ ​ 1,159 ​ ​ 3,694,023 ​ — ​ 3,695,182 Cashless Warrant Exercise ​ 6,948 ​ ​ 7 ​ ​ ( 7 ) ​ — ​ — Pre-funded Warrant Exercise ​ 130,769 ​ ​ 131 ​ ​ ( 118 ) ​ — ​ 13 Net Loss — ​ — ​ — ​ ( 12,092,776 ) ​ ​ ( 12,092,776 ) Balance at December 31, 2022 11,627,609 ​ 11,628 ​ 45,944,478 ​ ( 38,641,085 ) ​ 7,315,021 Share-Based Compensation ​ — ​ — ​ 3,206,527 ​ — ​ 3,206,527 Share-Based Payments to Vendors ​ 140,186 ​ 140 ​ 559,443 ​ — ​ 559,583 Issuance of shares of common stock and pre-funded warrants in registered direct offering, net of $ 456,314 cash issuance costs ​ 601,851 ​ ​ 602 ​ ​ 3,543,010 ​ — ​ 3,543,612 Issuance of shares of common stock in At-the-Market sales agreement, net of $ 222,161 cash issuance costs ​ 680,252 ​ ​ 680 ​ ​ 2,399,958 ​ ​ — ​ ​ 2,400,638 Warrant Exercise ​ 682,769 ​ ​ 683 ​ ​ 2,218,316 ​ ​ — ​ ​ 2,218,999 Cashless Warrant Exercise ​ 4,080 ​ ​ 4 ​ ​ ( 4 ) ​ — ​ — Pre-funded Warrant Exercise ​ 731,482 ​ ​ 731 ​ ​ ( 658 ) ​ — ​ 73 Net Loss — ​ — ​ — ​ ( 14,577,768 ) ​ ( 14,577,768 ) Balance at December 31, 2023 14,468,229 ​ $ 14,468 ​ $ 57,871,070 ​ $ ( 53,218,853 ) ​ $ 4,666,685 ​ See accompanying notes to financial statements. ​ F-5 Table of Contents ​ ACURX PHARMACEUTICALS, INC. STATEMENTS OF CASH FLOWS YEARS ENDED DECEMBER 31, 2023 AND 2022 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Years Ended ​ ​ December 31, ​ ​ 2023 ​ 2022 ​ ​ ​ ​ ​ ​ ​ Cash Flow from Operating Activities: ​ ​ Net Loss ​ $ ( 14,577,768 ) ​ $ ( 12,092,776 ) Adjustments to Reconcile Net Loss to Net Cash Used in Operating Activities: ​ ​ ​ Share-Based Compensation ​ 3,206,527 ​ 2,871,681 Share-Based Payments to Vendors ​ 559,583 ​ 430,680 (Increase)/Decrease in: ​ ​ Other Receivable ​ ​ ( 129,159 ) ​ ​ — Prepaid Expenses ​ 159,179 ​ 30,349 Accounts Payable and Accrued Expenses ​ ​ 980,753 ​ ​ 1,217,776 Net Cash Used in Operating Activities ​ ​ ( 9,800,885 ) ​ ​ ( 7,542,290 ) ​ ​ ​ ​ ​ ​ ​ Cash Flow from Financing Activities: ​ ​ Proceeds from Registered Direct Offering, net of issuance costs ​ ​ 3,543,612 ​ ​ 3,695,182 Pre-funded Warrant Exercise ​ ​ 73 ​ ​ 13 Warrant Exercise ​ ​ 2,218,999 ​ ​ — Proceeds from At-the-Market Offering, net of issuance costs ​ ​ 2,400,638 ​ ​ — Net Cash Provided by Financing Activities ​ ​ 8,163,322 ​ ​ 3,695,195 Net Decrease in Cash ​ ( 1,637,563 ) ​ ( 3,847,095 ) Cash at Beginning of Year ​ ​ 9,111,751 ​ ​ 12,958,846 Cash at End of Year ​ $ 7,474,188 ​ $ 9,111,751 ​ ​ ​ SUPPLEMENTAL DISCLOSURE OF NON-CASH FINANCING ACTIVITIES ​ ​ ​ ​ ​ ​ 2023 Registered Direct offering costs (Note 4) ​ $ 1,990,153 ​ $ — Warrants issued in connection with 2022 offerings (Note 4) ​ $ — ​ $ 171,409 ​ See accompanying notes to financial statements. ​ F-6 Table of Contents ACURX PHARMACEUTICALS, INC. NOTES TO THE FINANCIAL STATEMENTS NOTE 1 – NATURE OF OPERATIONS Business: Acurx Pharmaceuticals, Inc., a Delaware corporation, formerly Acurx Pharmaceuticals, LLC (the “Company”) is a clinical stage biopharmaceutical company formed in July 2017, with operations commencing in February 2018. The Company is focused on developing a novel class of antibiotics that address serious or life threatening bacterial infections. In March 2020, the World Health Organization declared the outbreak of COVID-19, a novel strain of coronavirus, a global pandemic. This outbreak caused major disruptions to businesses and markets worldwide as the virus continued to spread. The COVID-19 pandemic has disrupted, and the Company expects it will continue to disrupt, its operations. The extent of the effect on the Company’s operational and financial performance will depend on future developments, including the duration, spread and intensity of the pandemic, and governmental, regulatory and private sector responses, direct and indirect economic effects as a result of inflation, supply chain disruptions and labor shortages all of which are uncertain and difficult to predict. Although the Company is unable to estimate the financial effect of the pandemic, at this time, if the pandemic continues over a long period of time, it could have a material adverse effect on the Company’s business, results of operations, financial condition, and cash flows. The financial statements do not reflect any adjustments as a result of the pandemic. In February 2018, the Company purchased the active pharmaceutical ingredient, the intellectual property and other rights to an antibiotic product candidate known as GLS362E (renamed ACX-362E and now approved for non-proprietary name, ibezapolstat) (the “Asset”) from GLSynthesis, Inc. The Company paid $ 110,174 in cash, along with granting 100,000 Class B Membership Interests, profits interests as defined in the operating agreement, with an exercise price of $ 0.10 per share. The Company was also required to make certain milestone payments totaling $ 700,000 in aggregate if certain milestones are achieved, $ 50,000 of which has already been paid by the Company and royalty payments equal to 4 % of net sales for a period of time equal to the last to expire of any applicable patents, as defined in the asset purchase agreement. The purchase of the Asset has resulted in our lead antibiotic product candidate, ibezapolstat, which targets the treatment of C. difficile infections (“CDI”). The Company’s primary activities since inception aside from organizational activities have included performing research and development activities relating to the development of its two antibiotic candidates and raising funds through equity offerings including its initial public offering (“IPO”) consummated in June 2021. The Company has not generated any revenues since inception. The Company has experienced net losses and negative cash flows from operations since inception and expects these conditions to continue for the foreseeable future. The Company has needed to raise capital from sales of its securities to sustain operations. On June 29, 2021, the Company completed the IPO, issuing 2,875,000 shares of common stock at a price of $ 6.00 per share, with gross proceeds of approximately $ 17.3 million. On July 27, 2022, the Company completed a registered direct offering and a concurrent private placement, issuing 1,159,211 shares of common stock and 130,769 pre-funded warrants and series A warrants to purchase 1,289,980 shares of common stock and series B warrants to purchase 1,289,980 shares of common stock for gross proceeds of approximately $ 4.2 million. On May 18, 2023, the Company completed a registered direct offering and a concurrent private placement, issuing 601,851 shares of common stock, 731,482 pre-funded warrants, series C warrants to purchase 1,333,333 shares of common stock and series D warrants to purchase 1,333,333 shares of common stock for gross proceeds of approximately $ 4.0 million. On November 15, 2023, the Company entered into a Sales Agreement and established an “At-the-Market” offering (the “ATM Program”), pursuant to which the Company may offer and sell, from time to time through A.G.P/Alliance Global Partners, as sales agent, shares of its common stock having an aggregate offering price of up to $ 17.0 million. Under the ATM Program, the Company sold 698,121 shares of common stock for gross proceeds of approximately $ 2.6 million. As of December 31, 2023, the Company had a cash balance of approximately $ 7.5 million, which based on current estimates will not be sufficient to meet our anticipated cash requirements for at least 12 months from the issuance of the F-7 Table of Contents financial statements for the year ended December 31, 2023. Management believes that the Company will continue to incur losses for the foreseeable future and will need additional resources to sustain its operations until it can achieve profitability and positive cash flows, if ever. Management plans to seek additional equity financing and grant funding, but cannot assure that such financing and funding will be available at acceptable terms, or at all. These matters raise substantial doubt about the Company’s ability to continue as a going concern. The accompanying financial statements do not include any adjustments that might result from the outcome of this uncertainty. There can be no assurance that the Company’s research and development will be successfully completed or that any Company product candidate will be approved by the Food and Drug Administration (“FDA”) or any other worldwide regulatory authority or become commercially viable. The Company is subject to risks common to companies in the biopharmaceutical industry including, but not limited to, dependence on collaborative arrangements, development by the Company or its competitors of new technological innovations, dependence on key personnel, protection of proprietary technology, and compliance with FDA and other governmental regulations and approval requirements . ​ NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Use of Estimates The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of expenses during the reporting period. Actual results could differ from those estimates. Income Taxes The Company estimates an annual effective tax rate of 0 % as the Company incurred net losses for the years ended December 31, 2023 and 2022, resulting in an estimated net loss for both financial statement and tax purposes. Therefore, no current federal or state income tax expense has been recorded in the financial statements. Based on the Company’s history of generating operating losses and its anticipation of operating losses for the foreseeable future, the Company has determined that it is more likely than not that the tax benefits from those net operating losses would not be realized and a full valuation allowance against all deferred tax assets has been recorded. Should the Company’s assessment change, tax benefits associated with the historic net operating loss carryforwards could be limited due to future ownership changes. Concentration of Credit Risk The Company maintains the majority of its cash balance in one financial institution. The balance is insured up to the maximum allowable by the Federal Deposit Insurance Corporation (“FDIC”). The Company has not experienced any losses in such accounts and does not believe it is exposed to any significant risk of loss on cash. At times, the cash balance may exceed the maximum insured limit of the FDIC. As of December 31, 2023, the Company had cash of approximately $ 7.5 million in U.S. bank accounts which was not fully insured by the FDIC. Research and Development The Company expenses research and development costs as incurred. At times, the Company may make cash advances for future research and development services. These amounts are deferred and expensed in the period the services are provided. The Company incurred research and development expenses in the amount of $ 6,043,597 and $ 4,754,271 , for the years ended December 31, 2023 and 2022, respectively. Costs for certain research and development activities, such as the provision of services for clinical trial activity, are estimated based on an evaluation of the progress to completion of specific tasks which may use data such as subject enrollment, clinical site activations or information provided to the Company by its vendors with respect to their actual costs incurred. Payments for these activities are based on the terms of the individual arrangements, which may differ F-8 Table of Contents from the pattern of costs incurred, and are reflected in the financial statements as prepaid or accrued research and development expense, as the case may be. The estimates are adjusted to reflect the best information available at the time of the financial statement issuance. Although the Company does not expect its estimates to be materially different from amounts actually incurred, the Company’s estimate of the status and timing of services performed relative to the actual status and timing of services performed may vary. Share-Based Compensation The Company accounts for the cost of services performed by officers and directors received in exchange for an award of Company membership interests, common stock or stock options, based on the grant-date fair value of the award. The Company recognizes compensation expense based on the requisite service period. Compensation expense associated with stock option awards is recognized over the requisite service period based on the fair value of the option at the grant date determined based on the Black-Scholes option pricing model. Option valuation models require the input of highly subjective assumptions including the expected price volatility. The Company’s employee stock options have characteristics significantly different from those of traded options, and changes in the subjective input assumptions can materially affect the fair value computation using the Black-Scholes option pricing model. Because there is no public market for the Company’s stock options and very little historical experience with the Company’s stock, similar public companies were used for the comparison of volatility and the dividend yield. The risk-free rate of return was derived from U.S. Treasury notes with comparable maturities. Share-Based Payments to Vendors The Company accounts for the cost of services performed by vendors in exchange for an award of Company membership interests, common stock, or stock options, based on the grant-date fair value of the award or the fair value of the services rendered; whichever is more readily determinable. The Company recognizes the expense in the same period and in the same manner as if the Company had paid cash for the services. Major Vendor The Company had a major vendor that accounted for approximately 63 % and 55 % of the research and development expenditures for the years ended December 31, 2023 and 2022, respectively. The same vendor also accounted for approximately 53 % and 56 % of the total accounts payable and accrued expenses as of December 31, 2023 and 2022, respectively. ​ NOTE 3 – ACCOUNTS PAYABLE AND ACCRUED EXPENSES Accounts payable and accrued expenses as of December 31, 2023 and 2022 were as follows: ​ ​ ​ ​ ​ ​ ​ ​ ​ December 31, 2023 December 31, 2022 Accrued compensation expenses ​ $ 716,307 ​ $ 542,895 Accrued research and development ​ 2,263,934 ​ 1,405,536 Accrued professional fees ​ 58,388 ​ 83,715 Other accounts payable and accrued expenses ​ 3,809 ​ 29,539 Total ​ $ 3,042,438 ​ $ 2,061,685 ​ ​ ​ F-9 Table of Contents NOTE 4 – ISSUANCE OF EQUITY INTERESTS On June 23, 2021, Acurx Pharmaceuticals, LLC was converted into a corporation and renamed Acurx Pharmaceuticals, Inc. The Company’s certificate of incorporation authorizes 200,000,000 shares of common stock, of which 14,468,229 were issued and outstanding as of December 31, 2023. On June 29, 2021, the Company completed an IPO issuing 2,875,000 shares of common stock at a price of $ 6.00 per share, resulting in net cash proceeds of approximately $ 14.8 million, with cash issuance costs of approximately $ 2.4 million. The outstanding Class A and Class B Membership Interests were converted to shares of common stock pursuant to a conversion ratio of one -for-two of the Membership Interests outstanding, resulting in the conversion of 14,082,318 Class A and Class B Membership Interests into 7,041,208 shares of common stock. Warrants to purchase Class A Membership Interests were converted to warrants to purchase common stock at the same one -for two conversion ratio, resulting in 1,437,577 warrants to purchase common stock with a weighted average exercise price of $ 2.88 . In connection with the IPO, the Company issued 150,000 warrants to the underwriter. Each warrant is exercisable for 4.5 years from December 21, 2021 at an exercise price of $ 7.50 per share. The Company used the Black-Scholes model to calculate the value of the warrants with an estimated fair value of $ 618,000 . The inputs utilized in the calculation were as follows: four and a half-year term, 0.79 % risk-free rate, stock price at grant date of $ 6.26 , and a 94 % volatility utilizing comparable companies. This amount was recorded as both an increase to additional paid-in capital and as a non-cash issuance cost of the offering. On July 25, 2022, the Company entered into securities purchase agreements (the “Purchase Agreements”) with two of the Company’s executives and a member of the Company’s board of directors (collectively, the “Affiliate Investors”), and a single U.S. institutional investor (the “Investor”) pursuant to which the Company issued and sold in a registered direct offering an aggregate of 1,159,211 shares of common stock, par value $ 0.001 per share and pre-funded warrants to purchase an aggregate of 130,769 shares of common stock. The Affiliate Investors purchased an aggregate of 59,211 shares of common stock at a purchase price of $ 3.80 per share. The Investor purchased an aggregate of 1,100,000 shares of common stock at a purchase price of $ 3.25 per share and an aggregate of 130,769 pre-funded warrants at a purchase price of $ 3.2499 per pre-funded warrant. The pre-funded warrants sold to the Investor have an exercise price of $ 0.0001 , were immediately exercisable. As of December 31, 2022, all of the pre-funded warrants were exercised. The Company also issued to the Affiliate Investors and the Investor, series A warrants to purchase 1,289,980 shares of common stock and series B warrants to purchase 1,289,980 shares of common stock, all of which are deemed equity classified. These warrants included 59,211 series A warrants and an aggregate of 59,211 series B warrants to the Affiliate Investors with an exercise price per share of $ 3.55 and an aggregate of 1,230,769 series A warrants and an aggregate of 1,230,769 series B warrants to the Investor with an exercise price per share of $ 3.25 . The series A warrants were exercisable commencing on January 27, 2023 and will expire on May 18, 2029 for the Investor and January 27, 2028 for the Affiliates. The series B warrants were exercisable commencing on January 27, 2023 and will expire on May 18, 2029 for the Investor and January 27, 2024 for the Affiliates. The registered direct offering closed on July 27, 2022. As of December 31, 2023, 682,769 of series B warrants were exercised and the Company received approximately $ 2.2 million in proceeds from these warrant exercises. The gross proceeds to the Company from the registered direct offering were $ 4.2 million and net proceeds after deducting the placement agents’ fees and other offering expenses payable by the Company were approximately $ 3.7 million. On July 25, 2022, the Company entered into a co-placement agent agreement (the “Placement Agent Agreement”), with two placement agents in connection with the registered direct offering pursuant to which the Company paid the Placement Agents a cash fee of $ 287,874 and issued to the Placement Agents an aggregate of 63,018 warrants to purchase shares of common stock. The warrants have an exercise price of $ 3.60 per share (representing 110 % of the weighted average public offering price of the aggregate number of shares of common stock sold in the registered direct offering to the Investor and Affiliate Investors) and expire on July 27, 2027. The Company used the Black-Scholes model to calculate the value of the warrants with an estimated fair value of $ 171,409 . The inputs utilized in the calculation were as follows: five -year term, 2.82 % risk free rate, stock price at grant date of $ 3.70 and a 95 % volatility F-10 Table of Contents utilizing comparable companies. This amount was recorded as both an increase to additional paid-in capital and as a non-cash issuance cost of the offering. On May 16, 2023, the Company entered into a securities purchase agreement with a single healthcare-focused U.S. institutional investor named therein (the “2023 Investor”), pursuant to which the Company issued and sold, in a registered direct offering by the Company directly to the 2023 Investor (the “2023 Registered Offering”), an aggregate of 601,851 shares of common stock at an offering price of $ 3.00 per share and an aggregate of 731,482 pre-funded warrants exercisable for shares of common stock at an offering price of $ 2.9999 per pre-funded warrant. The pre-funded warrants sold to the Investor have an exercise price of $ 0.0001 and were immediately exercisable. As of December 31, 2023, all of the pre-funded warrants were exercised. The gross proceeds to the Company from the registered direct offering were approximately $ 4.0 million and net proceeds after deducting the placements agent’s fees and other offering expenses payable by the Company were approximately $ 3.5 million. In a concurrent private placement (the “2023 Private Placement” and together with the 2023 Registered Offering, the “2023 Offerings”), the Company issued to the Investor series C warrants exercisable for an aggregate of 1,333,333 shares of common stock at an exercise price of $ 3.26 per share and series D warrants exercisable for an aggregate of 1,333,333 shares of common stock at an exercise price of $ 3.26 per share. The Series C Warrants were exercisable commencing on November 18, 2023 and will expire on November 18, 2025. The Series D Warrants were exercisable commencing on November 18, 2023 and will expire on November 19, 2029. In connection with the 2023 Offerings, the Company also entered into a Warrant Amendment Agreement with the 2023 Investor. Under the Warrant Amendment Agreement, the Company amended its existing series A warrants to purchase up to an aggregate of 1,230,769 shares of the Company's common stock and series B warrants to purchase up to an aggregate of 1,230,769 shares of the Company's common stock (collectively, the “Existing Warrants”) that were previously issued in July 2022, such that effective upon the closing of the offering, the amended Existing Warrants have a termination date of May 18, 2029. The Company used the Black-Scholes model to calculate the change in the value of the aforementioned series A and series B warrants attributable to the change in the termination date, with an estimated increase in fair value of approximately $ 2.0 million. This amount was recorded as both an increase to additional paid-in capital and as a non-cash issuance cost of the offerings. On November 15, 2023, the Company entered into a Sales Agreement and established the ATM Program, pursuant to which the Company may offer and sell, from time to time through A.G.P./Alliance Global Partners, as sales agent, shares of its common stock having an aggregate offering price of up to $ 17.0 million. Under the sales agreement, the sales agent is entitled to compensation of 3 % of the gross offering proceeds of all shares sold through it pursuant to the Sales Agreement. During the year ended December 31, 2023, the Company sold 698,121 shares of its common stock under the ATM Program at a weighted-average price of $ 3.76 per share, raising $ 2.6 million of gross proceeds and net proceeds of $ 2.4 million, after deducting commissions to the sales agent and other ATM Program related expenses. The Company recorded a receivable of $ 129,159 for 34,116 shares sold under the ATM Program yet to settle as of December 31, 2023, of which 17,869 shares had yet to be issued by the transfer agent as of year-end. The receivable for the unsettled shares as of December 31, 2023 is included within the “Other Receivable” balance in the accompanying balance sheets. The receivables were collected on January 3, 2024 and 17,869 shares were settled and transferred on January 2, 2024. As of December 31, 2023, the Company has $ 14.4 million available under the ATM Program. F-11 Table of Contents The following table summarizes information with respect to outstanding warrants to purchase common stock of the Company at December 31, 2023: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Weighted Average ​ ​ Number of Warrants Exercise Price Balance at December 31, 2022 ​ ​ 4,217,809 ​ $ 3.29 Issued ​ 3,398,148 ​ ​ 2.56 Exercised ​ ( 1,420,501 ) ​ ​ 1.57 Balance at December 31, 2023 ​ 6,195,456 ​ $ 3.28 ​ The weighted average contractual life of the outstanding warrants is 4.46 years. ​ ​ NOTE 5 – SHARE-BASED COMPENSATION In April 2021, the board of directors approved the creation of the 2021 Equity Incentive Plan (the “Plan”). The Plan became effective as of the completion of the corporate conversion. The Plan originally reserved an aggregate of 2,000,000 shares of common stock, subject to annual adjustments as provided in the Plan, which was 465,432 shares for the year ended December 31, 2023. The Plan currently has 485,868 shares available for issuance as of December 31, 2023. The purpose of the Plan is to attract, retain and incentivize directors, officers, employees, and consultants. In June 2021, the Company granted stock options to purchase a total of 807,500 shares of common stock to its three executives and three non-employee management team members to replace the Class B Membership Interests that were cancelled in March 2021. The options were issued at an exercise price of $ 6.26 , with the employee options vesting 40 % upon issuance and the balance over 36 months , and the non-employee options vesting at grant date. The Company recorded general and administrative expenses of $ 726,880 for each of the years ended December 31, 2023 and 2022, related to compensation expenses for these options. In July 2021, the Company granted stock options to purchase a total of 1,550,000 shares of common stock to its three executives pursuant to their respective employment agreements, the independent directors, and one consultant, pursuant to the Plan. The options were issued at an exercise price of $ 6.18 , the grant date fair value, with one -quarter of the executive’s options vesting upon issuance and the balance over 36 months , and the options granted to the directors and consultants vesting over 36 months . The Company recorded general and administrative expenses of $ 1,963,667 for each of the years ended December 31, 2023 and 2022, related to compensation expenses for these options. In January 2022, the Company granted stock options to purchase a total of 80,000 shares of common stock to seven consultants pursuant to the Plan. The options were issued at an exercise price of $ 4.44 , the grant date fair value, with one -quarter of the options vesting upon issuance and the balance over 36 months . The Company recorded general and administrative expenses of $ 75,800 and $ 145,283 for the years ended December 31, 2023 and 2022, respectively, related to compensation expenses for these options. In April 2022, the Company granted stock options to purchase a total of 30,000 shares of common stock to a new employee pursuant to the Plan. The options were issued at an exercise price of $ 3.79 , the grant date fair value, with one -quarter of the options vesting upon issuance and the balance over 36 months . The Company recorded general and administrative expenses of $ 21,510 and $ 35,850 for the years ended December 31, 2023 and 2022, respectively, related to compensation expenses for these options. In February 2023, the Company granted stock options to purchase a total of 467,500 shares of common stock to its four employees and seven consultants pursuant to the Plan. The options were issued at an exercise price of $ 3.41 , the grant F-12 Table of Contents date fair value, with the options vesting monthly over 36 months . The Company recorded general and administrative expenses of $ 365,070 for the year ended December 31, 2023, related to compensation expense for these options. In June 2023, the Company granted stock options to purchase a total of 50,000 shares of common stock to its five independent board of directors pursuant to the Plan. The options were issued at an exercise price of $ 2.75 , the grant date fair value, with the options vesting on the one -year anniversary of the grant date. The Company recorded general and administrative expenses of $ 53,600 for the year ended December 31, 2023, related to compensation expenses for these options. Compensation expense associated with these awards is recognized over the vesting period based on the fair value of the option at the grant date determined based on the Black-Scholes option pricing model. Option valuation models require the input of highly subjective assumptions including the expected price volatility. The Company’s employee stock options have characteristics significantly different from those of traded options, and changes in the subjective input assumptions can materially affect the fair value computation using the Black-Scholes option pricing model. Because there is no public market for the Company’s stock options and very little historical experience with the Company’s stock, similar public companies were used for the comparison of volatility and the dividend yield. The risk-free rate of return was derived from U.S. Treasury notes with comparable maturities. The Company determined the fair value of the option awards during the years ended December 31, 2023 and 2022, using the Black-Scholes option pricing model using the following weighted average assumptions: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Years Ended ​ December 31, ​ 2023 ​ 2022 Expected term ​ 6.9 years ​ ​ 9.0 years Volatility ​ 98 % ​ ​ 90 % Dividend yield ​ — % ​ ​ — % Risk-free interest rate ​ 3.85 % ​ ​ 2.01 % Weighted average grant date fair value $ 2.75 ​ ​ $ 3.54 ​ ​ A summary of the Company’s stock option activity is as follows: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Weighted ​ ​ ​ ​ ​ ​ ​ ​ Average ​ ​ ​ ​ ​ ​ Weighted ​ Remaining ​ Aggregate ​ Number of Average ​ Contractual Term ​ Intrinsic ​ Options Exercise Price ​ (in years) ​ Value Outstanding, vested and expected to vest at December 31, 2022 2,467,500 $ 6.12 ​ 8.53 $ 5,700 Granted 517,500 ​ ​ 3.35 ​ 9.16 ​ ​ ​ Exercised — ​ ​ — ​ — ​ ​ ​ Forfeited — ​ ​ — ​ — ​ ​ ​ Outstanding, vested and expected to vest at December 31, 2023 2,985,000 ​ $ 5.64 ​ 7.81 ​ $ 251,550 Exercisable 2,280,361 ​ $ 5.98 ​ 7.61 ​ $ 55,342 ​ The total compensation expense not yet recognized as of December 31, 2023 was $ 2,458,851 . The weighted average vesting period for the unvested options is 1.30 years. The weighted average grant date fair value of all options granted is $ 4.33 as of December 31, 2023. The Company records the impact of any forfeitures of options as they occur. ​ NOTE 6 – SHARE-BASED PAYMENTS TO VENDORS In the fourth quarter of 2021, the Company entered into an agreement with a consultant to provide financial advisory services for a six-month term. Pursuant to the agreement, the Company granted $ 150,000 of common stock over the term F-13 Table of Contents of service. The Company granted total of 27,778 shares of common stock at grant date fair value and recorded general and administrative expenses of $ 0 and $ 75,000 for the years ended December 31, 2023 and 2022, respectively. In the first quarter of 2022, the Company entered into an agreement with a consultant to provide investor relation services for a six-month term. Pursuant to the agreement, the Company granted 30,000 shares of common stock with a grant date fair value of $ 3.77 and paid $ 25,000 of cash compensation. The cash component was expensed over the service period and the equity component was expensed consistent with the contractual vesting. The Company recorded general and administrative expenses of $ 0 and $ 113,100 for the years ended December 31, 2023 and 2022, respectively. In the third quarter of 2022, the Company entered into an agreement with a company to provide consulting services for a six-month term. Pursuant to the agreement, the Company granted 36,000 shares of common stock with a grant date fair value of $ 3.53 , which was expensed consistent with the contractual vesting. The Company recorded general and administrative expenses of $ 0 and $ 127,080 for the years ended December 31, 2023 and 2022, respectively. In the fourth quarter of 2022, the Company entered into a number of agreements with vendors pursuant to which the Company made grants of a total of 43,186 share of common stock with a grant date fair values ranging from $ 3.30 to $ 3.67 , up to 10,096 of warrants, and cash payments. These contracts have six-months terms with various contractual vesting periods. The cash payments were expensed over the service period and the equity component was expensed consistent with the various contractual vesting periods. The Company recorded general and administrative expenses of $ 46,742 and $ 115,500 for the years ended December 31, 2023 and 2022, respectively. In the first quarter of 2023, the Company entered into an agreement with a consultant to provide investor relation services for a six-month term. The Company granted 36,000 shares of common stock at a grant date fair value of $ 3.31 , pursuant to the agreement and recorded general and administrative expenses of $ 119,160 for the year ended December 31, 2023. In the fourth quarter of 2023, the Company entered into a number of agreements with vendors pursuant to which the Company will make grants of a total of 116,000 share of common stock and cash payments, of which 96,000 shares of common stock were issued as of December 31, 2023 with grant date fair values ranging from $ 1.50 to $ 5.07 . These contracts have four to six-months terms with various contractual vesting periods. The cash payments are expensed over the service period and the equity components are expensed consistent with the various contractual vesting periods. The Company recorded general and administrative expenses of $ 393,681 for the year ended December 31, 2023. ​ NOTE 7 – INCOME TAXES The Company has $ 17.6 million of net operating loss carryforwards and $ 0.3 million of research tax credit carryforwards as of December 31, 2023. The net operating loss carryforwards are indefinite lived and research tax credit carryforwards will expire in 2043. Net operating loss and tax credit carryforwards may become subject to annual limitations in the event of certain cumulative changes in the ownership interest of significant stockholders over a three-year period in excess of 50%, as defined by Sections 382 and 383 of the Internal Revenue Code as well as similar state provisions. This could limit the amount of tax attributes that can be utilized annually to offset future taxable income or tax liabilities. F-14 Table of Contents The components of the net deferred income tax asset at December 31, 2023 and 2022 are as follows: ​ ​ ​ ​ ​ ​ ​ ​ ​ December 31, 2023 December 31, 2022 Deferred tax assets ​ ​ ​ ​ ​ ​ Net operating loss carry forwards ​ $ 5,517,038 ​ $ 3,359,183 Share-based compensation ​ 3,255,964 ​ 2,262,381 Research and development credit carryforwards ​ 331,671 ​ 141,671 Capitalized research and development ​ ​ 2,807,846 ​ ​ 1,347,028 Other ​ ​ 10,945 ​ ​ — Gross deferred tax assets ​ ​ 11,923,464 ​ ​ 7,110,263 Less valuation allowance ​ ​ ( 11,923,464 ) ​ ​ ( 7,110,263 ) Net deferred tax asset ​ $ — ​ $ — ​ The Tax Cuts and Jobs Act of 2017 (TCJA) amended IRC Section 174 to require capitalization of all research and developmental (R&D) costs incurred in tax years beginning after December 31, 2021. These costs are required to be amortized over five years if the R&D activities are performed in the U.S., or over 15 years if the activities were performed outside the U.S. The Company capitalized approximately $ 6.1 million and $ 4.8 million of R&D expenses for the years ended December 31, 2023 and 2022, respectively. In assessing the realizability of deferred tax assets, the Company considers whether it is more-likely-than-not that some portion or all the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which the temporary differences representing net future deductible amounts become deductible. After consideration of all the evidence, both positive and negative, the Company has recorded a full valuation allowance against their net deferred tax assets at December 31, 2023 because the Company has concluded that it is more-likely-than-not that these assets will not be realized. A reconciliation of income tax expense (benefit) at the statutory Federal income tax rate and income taxes as reflected in the financial statements for both years ended December 31, 2023 and 2022 is as follows: ​ ​ ​ ​ ​ ​ ​ ​ December 31, 2023 ​ December 31, 2022 Federal income tax expense at statutory rate 21.0 % ​ 21.0 % State income tax, net of federal benefit 10.4 ​ ​ 14.4 ​ Permanent differences 1.6 ​ ​ ( 0.5 ) ​ Research and development tax credit - ​ ​ 0.3 ​ Change in valuation allowance ( 33.0 ) ​ ​ ( 35.2 ) ​ Effective income tax rate — % ​ — % ​ The Company files income tax returns in the U.S. and the State of New York. The tax years 2021 and thereafter are open and potentially subject to examination by the federal and state taxing authorities. The Company is currently not under examination by the Internal Revenue Service (“IRS”) or any other jurisdictions for any tax years and has no knowledge of any pending examinations by the IRS or any other jurisdictions. To the extent the Company utilizes any tax attributes from a tax period that may otherwise be closed due to statute expiration, the IRS, state tax authorities, or other governing parties may still adjust the tax attributes upon their examination of the future period in which the attribute was utilized. There are no uncertain tax positions recorded for any federal or state positions at December 31, 2023 and 2022. The Company’s policy is to record interest and penalties related to tax matters in income tax expense. ​ F-15 Table of Contents NOTE 8 – NET LOSS PER SHARE Basic and diluted net loss per share of common stock for the year ended December 31, 2023 and 2022 was determined by dividing net loss by the weighted average shares of common stock outstanding during the period. The Company’s potentially dilutive securities, consisting of 6,195,456 warrants, and 2,985,000 stock options, have not been included in the computation of diluted net loss per share for all periods as the result would be antidilutive. ​ NOTE 9 – COMMITMENTS AND CONTINGENCIES In conjunction with the Asset purchase in February 2018, the Company is required to make certain milestone payments related to the ongoing development of ACX-362E totaling $ 700,000 in the aggregate if certain milestones are achieved (which includes $ 50,000 already paid after the acquisition in February 2018). During the fourth quarter of 2023, the Company achieved the Phase 2 clinical trial milestone and included $ 150,000 as a part of accounts payable and accrued expenses as of December 31, 2023. The Company is also obligated to make royalty payments equal to 4 % of net sales of ACX-362E for a period of time equal to the last to expire of any applicable patents, as defined in the purchase agreement. ​ NOTE 10 – SUBSEQUENT EVENTS As a part of the ATM Program, the Company sold a total of 1,819,914 shares of its common stock pursuant to the Sales Agreement at an average price of $ 3.88 for aggregate net proceeds of approximately $ 6.7 million as of March 15, 2024. ​ ​ ​ ​ F-16