Zevra Therapeutics, Inc S-3, filed Feb 9, 2021

Zevra Therapeutics, Inc. (ZVRA)

S-3 2021-02-09

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Large accelerated filer	☐	Accelerated filer	☐

Non-accelerated filer	☒	Smaller reporting company	☒

		Emerging growth company	☐

		Page
ABOUT THIS PROSPECTUS		1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS		2
PROSPECTUS SUMMARY		3
RISK FACTORS		7
USE OF PROCEEDS		8
SELLING STOCKHOLDERS		9
DESCRIPTION OF CAPITAL STOCK		12
PLAN OF DISTRIBUTION		19
EXPERTS		21
LEGAL MATTERS		21
WHERE YOU CAN FIND ADDITIONAL INFORMATION		21
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE		21

	•		the progress of, outcome or and timing of any regulatory approval for any of our product candidates and the expected amount or timing of any payment related thereto under any of our collaboration agreements;

	•		the progress of, timing of and expected amount of expenses associated with our research, development and commercialization activities;

	•		the expected timing of our clinical trials for our product candidates and the availability of data and result of those trials;

	•		our expectations regarding federal, state and foreign regulatory requirements;

	•		the potential therapeutic benefits and effectiveness of our product and product candidates;

	•		the size and characteristics of the markets that may be addressed by our product and product candidates;

	•		our intention to seek to establish, and the potential benefits to us from any, strategic collaborations or partnerships for the development or sale of our product and product candidates;

	•		our expectations as to future financial performance, expense levels and liquidity sources;

	•		the timing of commercializing our product and product candidates; and

	•		other risks and uncertainties, including those listed under the caption “Risk Factors” in our most recent Quarterly Report on Form 10-Q and other filings we make with the SEC.

Selected Risks Affecting Our Business Investing in our common stock involves risk. You should carefully consider all of the information in this prospectus, including information incorporated herein by reference, prior to investing in our common stock. These risks are discussed more fully in the section titled “Risk Factors” beginning on page 7 of this prospectus and under similar headings in the documents incorporated herein by reference. These risks and uncertainties include, but are not limited to, the following:

	•	Our research and development activities are focused on discovering and developing proprietary prodrugs, and we are taking an innovative approach to discovering and developing prodrugs, which may never lead to marketable prodrug products.

	•	If we are not able to obtain required regulatory approvals for our product candidates, or the approved labels are not sufficiently differentiated from other competing products, we will not be able to commercialize them and our ability to generate revenue or profits or to raise future capital could be limited.

	•	We are early in our development efforts and have only one product which has completed development and obtained regulatory approval by the FDA, APADAZ. All our other active product candidates are in clinical or preclinical development. If commercialization of APADAZ or our product candidates is not successful, or we experience significant delays in commercialization, our business will be harmed.

	•	Clinical drug development involves a lengthy and expensive process, with an uncertain outcome. We may incur additional costs or experience delays in completing, or ultimately be unable to complete, the development and commercialization of our product candidates.

	•	We may need substantial additional funding to pursue our business objectives. If we are unable to raise capital when needed, we could be forced to delay, reduce or altogether cease our prodrug development programs or commercialization efforts or cease operations altogether.

	•	The auditor’s opinion on our audited financial statements for the fiscal year ended December 31, 2019, included in our annual report on Form 10-K, contains an explanatory paragraph relating to our ability to continue as a going concern.

	•	In connection with preparation of our annual financial statements for the fiscal year ended December 31, 2019, we identified a material weakness in our internal control over financial reporting. Any failure to maintain effective internal control over financial reporting could harm us.

	•	We have incurred significant recurring negative net operating losses since our inception. We expect to incur operating losses over the next several years and may never achieve or maintain profitability.

	•	If we are unable to obtain and maintain trade secret protection or patent protection for our technology, APADAZ, KP415, KP484 and our other product candidates, or if the scope of the patent protection obtained is not sufficiently broad, our competitors could develop and commercialize technology and drugs similar or identical to ours, and our ability to successfully commercialize our technology, APADAZ, KP415, KP484 and our other product candidates, if approved, may be impaired.

	•	If we, subject to the approval of Commave, or Commave themselves, attempt to rely on Section 505(b)(2) of the Federal Food, Drug and Cosmetic Act and the FDA does not conclude that our product candidates are sufficiently bioequivalent, or have comparable bioavailability, to approved drugs, or if the FDA does not allow us or Commave to pursue the 505(b)(2) NDA pathway as anticipated, the approval pathway for our product candidates will likely take significantly longer, cost significantly more and entail significantly greater complications and risks than anticipated, and the FDA may not ultimately approve our product candidates.

	•	The FDA may determine that any NDA we may submit under the 505(b)(2) regulatory pathway for any of our product candidates in the future is not sufficiently complete to permit a substantive review.

	•	We have entered into collaborations with KVK, for the commercialization of APADAZ in the United States, and Commave, to develop, manufacture and commercialize KP415 and KP484 worldwide. In addition, we may seek collaborations with third parties for the development or commercialization of our other product candidates, or in other territories. If those collaborations are not successful, we may not be able to capitalize on the market potential of APADAZ or KP415, KP484 or other product candidates, if approved.

	•	The trading price of the shares of our common stock is likely to be volatile, and purchasers of our common stock could incur substantial losses.

Common stock offered by the selling stockholders		7,944,430 shares

Terms of the offering		The selling stockholders, including their transferees, donees, pledgees, assignees or successors-in-interest, may sell, transfer or otherwise dispose of any or all of the shares of common stock offered by this prospectus from time to time on The Nasdaq Capital Market or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. The shares of common stock may be sold at fixed prices, at prevailing market prices, at prices related to prevailing market prices, at negotiated prices and/or at varying prices determined at the time of sale. See “Plan of Distribution” on page 19.

Use of proceeds		We will not receive any proceeds from the sale of the shares of common stock covered by this prospectus.

Risk factors		See “Risk Factors” beginning on page 7, for a discussion of factors you should carefully consider before deciding to invest in our common stock.

Nasdaq Capital Market symbol		KMPH

	Shares of Common Stock Beneficially Owned Prior to Offering(1)		Number of Shares of Common Stock Being Offered	Shares of Common Stock to be Beneficially Owned After Offering(2)
Name of Selling Stockholder	Number	Percentage		Number	Percentage
Altium Growth Fund, LP (3)	984,304	5.0%	923,076	61,228	*
Armistice Capital Master Fund, Ltd. (4)	738,461	3.8%	738,461	—	—
Auctus Fund, LLC (5)	1,250,000	6.4%	600,000	650,000	3.4%
Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B (6)	733,384	3.7%	708,000	25,384	*
Bigger Capital Fund, LP and District 2 Capital Fund LP (7)	1,353,844	6.9%	738,460	615,384	3.3%
Empery Asset Master Ltd (8)	806,150	4.1%	437,702	368,448	1.9%
Empery Tax Efficient, LP (9)	157,531	*	85,532	71,999	*
Empery Tax Efficient III, LP (10)	388,698	2.0%	211,045	177,653	*
CVI Investments, Inc. (11)	923,076	4.7%	923,076	—	—
Hudson Bay Master Fund Ltd. (12)	928,076	4.7%	923,076	5,000	*
Kingsbrook Opportunities Master Fund LP (13)	276,093	1.4%	276,093	—	—
Boothbay Absolute Return Strategies, LP (14)	242,378	1.3%	242,378	—	—
Boothbay Diversified Alpha Master Fund LP (15)	123,531	*	123,531	—	—
Sabby Volatility Warrant Master Fund, Ltd. (16)	1,861,258	9.4%	1,014,000	847,258	4.5%

*	Represents beneficial ownership of less than 1%.
(1)	Assumes the exercise in full of all Warrants held by such selling stockholder without giving effect to any limits on beneficial ownership included in the terms thereof.
(2)	Assumes that all shares covered by this prospectus will be sold by the applicable selling stockholder.
(3)	The number of shares of common stock beneficially owned prior to this offering consists of 61,228 shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 923,076 shares issuable upon exercise of Warrants held by Altium Growth Fund, LP. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. The shares held by Altium Growth Fund, LP are indirectly beneficially owned by Altium Growth GP, LLC and Jacob Gottlieb. The principal business address of Altium Growth Fund, LP is 152 West 57th Street, 20th Floor, New York, NY 10019.
(4)	The number of shares of common stock beneficially owned prior to this offering consists of no shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 738,461 shares issuable upon exercise of Warrants held by Armistice Capital Master Fund, Ltd. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. The securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the "Master Fund"), and may be deemed to be indirectly beneficially owned by: (i) Armistice Capital, LLC ("Armistice Capital"), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The shares are issuable only upon exercise of warrants, which are subject to certain beneficial ownership limitations. Armistice Capital and Steven Boyd disclaim beneficial ownership of the securities except to the extent of their respective pecuniary interests therein. The address of the Master Fund is c/o Armistice Capital, LLC, 510 Madison Ave, 7th Floor, New York, NY 10022.
(5)	The number of shares of common stock beneficially owned prior to this offering consists of 650,000 shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 600,000 shares issuable upon exercise of Warrants held by Auctus Fund, LLC. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Auctus Fund Management, LLC ("Auctus Fund Management"), which serves as the managing member of Auctus Fund, LLC ("Auctus Fund"), may be deemed to be the beneficial owner of all shares of common stock held by Auctus Fund. Each of Alfred Sollami and Louis Posner (collectively, the “Individuals”), as managing members of Auctus Fund Management with the power to exercise investment discretion, may be deemed to be the beneficial owner of all shares of common stock held by Auctus Fund. The foregoing should not be construed in and of itself as an admission by Auctus Fund Management or any of the Individuals as to beneficial ownership of shares of common stock owned by Auctus Fund. Auctus Fund Management hereby disclaims any beneficial ownership of any such shares of common stock. Each of the Individuals hereby disclaim any beneficial ownership of any such shares of common stock except to the extent that each of the Individuals beneficially own membership interests of Auctus Fund. The principal business address of Auctus Fund, LLC is 545 Boylston St, 2nd Floor, Boston, MA 02116.

(12)	The number of shares of common stock beneficially owned prior to this offering consists of 5,000 shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 923,076 shares issuable upon exercise of Warrants held by Hudson Bay Master Fund Ltd. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 9.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Hudson Bay Capital Management LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities. The principal business address of Hudson Bay Capital Management LP is 777 Third Avenue, 30th Floor, New York, NY 10017.
(13)	The number of shares of common stock beneficially owned prior to this offering consists of no shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 276,093 shares issuable upon exercise of Warrants held by Kingsbrook Opportunities Master Fund LP. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Kingsbrook Partners LP (“Kingsbrook Partners”) is the investment manager of Kingsbrook Opportunities Master Fund LP (“Kingsbrook Opportunities”) and consequently has voting control and investment discretion over securities held by Kingsbrook Opportunities. Kingsbrook Opportunities GP LLC (“Opportunities GP”) is the general partner of Kingsbrook Opportunities and may be considered the beneficial owner of any securities deemed to be beneficially owned by Kingsbrook Opportunities. KB GP LLC (“GP LLC”) is the general partner of Kingsbrook Partners and may be considered the beneficial owner of any securities deemed to be beneficially owned by Kingsbrook Partners. Ari J. Storch, Adam J. Chill and Scott M. Wallace are the sole managing members of Opportunities GP and GP LLC and as a result may be considered beneficial owners of any securities deemed beneficially owned by Opportunities GP and GP LLC. Each of Kingsbrook Partners, Opportunities GP, GP LLC and Messrs. Storch, Chill and Wallace disclaim beneficial ownership of these securities. The address for Kingsbrook Opportunities is c/o Kingsbrook Partners, 689 Fifth Avenue, 12th Floor, New York, New York 10022.
(14)	The number of shares of common stock beneficially owned prior to this offering consists of no shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 242,378 shares issuable upon exercise of Warrants held by Boothbay Absolute Return Strategies LP. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Boothbay Absolute Return Strategies, LP, a Delaware limited partnership (“BBARS”), is managed by Boothbay Fund Management, LLC, a Delaware limited liability company (“Boothbay”). Boothbay, in its capacity as the investment manager of BBARS, has the power to vote and the power to direct the disposition of all securities held by BBARS. Ari Glass is the Managing Member of Boothbay. Each of BBARS, Boothbay and Mr. Glass disclaim beneficial ownership of these securities, except to the extent of any pecuniary interest therein. The address for BBARS is c/o Boothbay, 140 East 45th Street, 14th Floor, New York, New York 10017.
(15)	The number of shares of common stock beneficially owned prior to this offering consists of no shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 123,531 shares issuable upon exercise of Warrants held by Boothbay Diversified Alpha Master Fund LP. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Boothbay Diversified Alpha Master Fund LP, a Cayman Islands limited partnership (“BBDAMF”), is managed by Boothbay. Boothbay, in its capacity as the investment manager of BBDAMF, has the power to vote and the power to direct the disposition of all securities held by BBDAMF. Ari Glass is the Managing Member of Boothbay. Each of BBDAMF, Boothbay and Mr. Glass disclaim beneficial ownership of these securities, except to the extent of any pecuniary interest therein. The address for BBDAMF is c/o Boothbay, 140 East 45th Street, 14th Floor, New York, New York 10017.
(16)	The number of shares of common stock beneficially owned prior to this offering consists of 847,258 shares of common stock, no shares of common stock issuable upon exercise of Underwritten Warrants and 1,014,000 shares issuable upon exercise of Warrants held by Sabby Volatility Warrant Master Fund, Ltd. In accordance with the terms of the Warrants, the holder thereof may not exercise the Warrants if such exercise would result in such holder and its affiliates and any other person or entities with which such holder would constitute a Section 13(d) “group” beneficially owning more than 4.99% of the then issued and outstanding shares of our common stock. This exercise limitation may not be waived and any purported exercise that is inconsistent with this exercise limitation is null and void. Sabby Volatility Warrant Master Fund, Ltd. is managed by Sabby Management, LLC. Sabby Management, LLC, in its capacity as the investment manager of Sabby Volatility Warrant Master Fund, Ltd., has the power to vote and the power to direct the disposition of all securities held by Sabby Volatility Warrant Master Fund, Ltd.. Hal Mintz is the Managing Member of Sabby Management, LLC. Each of Sabby Volatility Warrant Master Fund, Ltd., Sabby Management, LLC and Mr. Mintz disclaim beneficial ownership of these securities, except to the extent of any pecuniary interest therein. The principal business address of Sabby Management, LLC is 10 Mountainview Road, Suite 205, Upper Saddle River, NJ 07458.

	•		the title and stated value;

	•		the number of shares we are offering;

	•		the liquidation preference per share;

	•		the purchase price per share;

	•		the dividend rate per share, dividend period and payment dates and method of calculation for dividends;

	•		whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;

	•		our right, if any, to defer payment of dividends and the maximum length of any such deferral period;

	•		the procedures for any auction and remarketing, if any;

	•		the provisions for a sinking fund, if any;

	•		the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption or repurchase rights;

	•		any listing of the preferred stock on any securities exchange or market;

	•		whether the preferred stock will be convertible into our common stock or other securities of ours, including depositary shares and warrants, and, if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted;

	•		whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted;

	•		voting rights, if any, of the preferred stock;

	•		preemption rights, if any;

	•		restrictions on transfer, sale or other assignment, if any;

	•		whether interests in the preferred stock will be represented by depositary shares;

	•		a discussion of any material or special United States federal income tax considerations applicable to the preferred stock;

	•		the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;

	•		any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and

	•		any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock.

		•		before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

		•		upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

		•		on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

		•		any merger or consolidation involving the corporation and the interested stockholder;

		•		any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;

		•		subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;

		•		any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or

		•		the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation.

		•		on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;

		•		in the over-the-counter market;

		•		in transactions otherwise than on these exchanges or systems or in the over-the-counter market;

		•		through the writing of options, whether such options are listed on an options exchange or otherwise, or through the issuance of other convertible or derivative securities or contracts to be settled in shares of our common stock;

		•		in ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

		•		in block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

		•		in purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

		•		in an exchange distribution in accordance with the rules of the applicable exchange;

		•		in privately negotiated transactions;

		•		in connection with short sales or through the lending of such shares;

		•		in sales pursuant to Rule 144 of the Securities Act;

		•		through broker-dealers that agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

		•		through the distribution of such securities by any selling stockholder to its equity holders;

		•		by pledge to secure debts and other obligations or on foreclosure of a pledge;

		•		by a combination of any such methods of sale; and

		•		by any other method permitted pursuant to applicable law.

•		our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on February 28, 2020, and as amended by Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on April 8, 2020;

•		our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020, filed with the SEC on May 13, 2020, August 12, 2020 and October 30, 2020, respectively;

•		our Current Reports on Form 8-K filed on January 10, 2020, January 13, 2020, January 16, 2020, February 10, 2020, February 18, 2020, April 2, 2020, April 13, 2020, May 4, 2020, May 20, 2020, June 19, 2020, June 24, 2020, July 17, 2020, September 25, 2020, October 26, 2020, November 19, 2020, November 23, 2020 (as amended by Amendment No. 1 to Current Report on Form 8-K filed on November 24, 2020), December 21, 2020, December 28, 2020, December 28, 2020, January 5, 2021, January 13, 2021, January 26, 2021 and January 27, 2021;

•		the description of our common stock in our registration statement on Form 8-A filed with the SEC on January 5, 2021, including any amendments or reports filed for the purpose of updating such description; and

•		our audited financial statements for the fiscal year ended December 31, 2019 and our unaudited financial statements for the three and nine month periods ended September 30, 2020 included in our prospectus dated January 8, 2021, filed pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1 (File No. 333-250945).

Securities and Exchange Commission Registration Fee	$	5,270
Legal Fees and Expenses	$	50,000
Accounting Fees and Expenses	$	20,000
Miscellaneous	$	24,730
Total	$	100,000

Exhibit No.		Description

3.1		Amended and Restated Certificate of Incorporation of KemPharm, Inc. (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on April 21, 2015).

3.1.1		Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of KemPharm, Inc. (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on October 5, 2018).

3.1.2		Certificate of Designation of Preferences, Rights and Limitations of Series B-1 Convertible Preferred Stock of KemPharm, Inc. (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on September 4, 2019).

3.1.3		Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-2 Convertible Preferred Stock of KemPharm, Inc. (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on January 13, 2021).

3.1.4		Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on December 28, 2020).

3.2		Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 17, 2020).

4.1		Form of Common Stock Certificate (incorporated by reference to Exhibit 4.2 to Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-202660), filed with the SEC on April 9, 2015).

4.2		Form of Series C Common Stock Warrant (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on January 26, 2021).

4.3		Amended and Restated Investors’ Rights Agreement, dated as of February 19, 2015, by and among the Registrant and certain of its stockholders (incorporated herein by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-202660) as filed with the SEC on March 11, 2015).

4.4		December 2020 Exchange Agreement and Amendment to Facility Agreement, Notes and Investors’ Rights Agreement (incorporated herein by reference to the Registrant’s Current Report on Form 8-K as filed with the SEC on December 21, 2020).

4.5		Amendment to Facility Agreement, Notes and to December 2020 Exchange Agreement, dated as of December 24, 2020, by and among the Registrant, Deerfield Private Design Fund III, L.P. and Deerfield Special Situations Fund, L.P. (incorporated herein by reference to the Registrant’s Current on Form 8-K as filed on December 28, 2020).

4.6		Joinder Agreement, dated as of December 23, 2020, by and between the Registrant and Delaware Street Capital Master Fund, L.P. (incorporated herein by reference to the Registrant’s Current on Form 8-K as filed on December 28, 2020).

4.7		Joinder Agreement, dated as of December 23, 2020, by and between the Registrant and M. Kingdon Offshore Master Fund, LP (incorporated herein by reference to the Registrant’s Current on Form 8-K as filed on December 28, 2020).

5.1		Opinion of Cooley LLP.

10.1		Form of Inducement Letter (incorporated herein by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K as filed on January 26, 2021).

23.1		Consent of Independent Registered Public Accounting Firm.

23.2		Consent of Cooley LLP (included in legal opinion filed as Exhibit 5.1).

24.1		Power of Attorney (included on signature page).


	KEMPHARM, INC.

	By:		/s/ Travis C. Mickle, Ph.D.
			Travis C. Mickle, Ph.D.
			President, Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)

Signature	Title	Date

/s/ Travis C. Mickle, Ph.D.	President, Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)
Travis C. Mickle, Ph.D.		February 9, 2021

/s/ R. LaDuane Clifton, CPA	Chief Financial Officer, Secretary and Treasurer (Principal Financial Officer)
R. LaDuane Clifton, CPA		February 9, 2021

/s/ Timothy J. Sangiovanni, CPA	Vice President, Corporate Controller (Principal Accounting Officer)
Timothy J. Sangiovanni, CPA		February 9, 2021

/s/ Matthew R. Plooster	Director
Matthew R. Plooster		February 9, 2021

/s/ Richard W. Pascoe	Director
Richard W. Pascoe		February 9, 2021

/s/ Joseph B. Saluri	Director
Joseph B. Saluri		February 9, 2021

/s/ David S. Tierney	Director
David S. Tierney		February 9, 2021

(a)(1)	To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i)	to include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii)	to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(iii)	to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

	(2)	That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

	(3)	To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

	(4)	That, for the purpose of determining liability under the Securities Act to any purchaser:

		(i)	each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

		(ii)	each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(b)	The undersigned registrant undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)	Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person of the registrant in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.