Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-213036
PROSPECTUS
SUPPLEMENT
(To
the Prospectus dated August 25, 2016)
$8,400,000
Common
Stock
This
prospectus supplement and the accompanying base prospectus relate to the offer and sale by us of up to $8,400,000 of our common
stock. Our common stock will be offered over a period of time and from time to time through or to Oppenheimer & Co. Inc. (“Oppenheimer”),
acting as our sales agent or principal, in accordance with the terms of the equity distribution agreement we have entered into
with Oppenheimer. We are not required to request any sales under the equity distribution agreement, and Oppenheimer is not required
to sell any specific number or dollar amount of shares under the equity distribution agreement.
Sales
of our common stock, if any, under this prospectus supplement and the accompanying base prospectus may be made by any method deemed
to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended
(the “Securities Act”), including sales made directly on or through the NASDAQ Capital Market, sales made to or through
a market maker other than on an exchange or otherwise, and in negotiated transactions at market prices prevailing at the time
of sale or at prices related to such prevailing market prices. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement. See “Plan of Distribution” on page S-11.
Oppenheimer
will be entitled to compensation at a fixed commission rate of 2.5% of the gross proceeds from the sale of shares of our common
stock through it as sales agent under the equity distribution agreement. Under the equity distribution agreement, we may also
sell shares of common stock to Oppenheimer, as principal for its own account, at a price to be agreed upon at the time of sale.
In
connection with the sale of common stock on our behalf, Oppenheimer will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation paid to Oppenheimer will be deemed to be underwriting commissions or discounts.
Our
common stock is listed on the NASDAQ Capital Market and is traded under the symbol “ONCS”. On July 24, 2017,
the last reported sale price of our common stock on the NASDAQ Capital Market was $1.14 per share.
As
of July 24, 2017, the aggregate market value of our voting and non-voting common equity held by non-affiliates, based on
the price at which our common stock was last sold on that date, which was $1.24 per share, and the number of outstanding shares
of our common stock held by non-affiliates, which was 20,400,175 shares, was approximately $23,256,200. Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell securities in a primary public offering pursuant to a registration statement
on Form S-3 with a value exceeding more than ⅓ of our public float in any 12-month period so long as our public float remains
below $75.0 million. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar
months prior to and including the date of this prospectus supplement.
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should carefully review and consider
all the information in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference
herein and therein, including the risks and uncertainties described under “Risk Factors” beginning on page S-4
of this prospectus supplement and the risk factors incorporated by reference into this prospectus supplement and the accompanying
base prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying base prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
Oppenheimer
& Co.
The
date of this prospectus supplement is July 25, 2017.
Table
of Contents
About
This Prospectus Supplement
This
prospectus supplement and the accompanying base prospectus are part of a registration statement that we filed with the Securities
and Exchange Commission (“SEC”) utilizing a “shelf” registration process. Each time we conduct an offering
to sell securities under the accompanying base prospectus we will provide a prospectus supplement that will contain specific information
about the terms of that offering, including the price, the amount of securities being offered and the plan of distribution. The
shelf registration statement was initially filed with the SEC on August 9, 2016, and was declared effective by the SEC on August
25, 2016. This prospectus supplement describes the specific details regarding this offering and may add, update or change information
contained in the accompanying base prospectus. The accompanying base prospectus provides general information about us and our
securities, some of which, such as the disclosure under “Plan of Distribution,” may not apply to this offering. This
prospectus supplement and the accompanying base prospectus are an offer to sell only the securities offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. We are not making offers to sell or solicitations to buy our common
stock in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
If
information in this prospectus supplement is inconsistent with the accompanying base prospectus or any information incorporated
by reference with an earlier date, you should rely on the information in this prospectus supplement. This prospectus supplement,
together with the base prospectus, the documents incorporated by reference into this prospectus supplement and the base prospectus
and any free writing prospectus we have authorized for use in connection with this offering, include all material information
relating to this offering. We have not, and Oppenheimer has not, authorized anyone to provide you with different or additional
information and you must not rely on any unauthorized information or representations. You should assume that the information appearing
in this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference in this prospectus supplement
and the accompanying base prospectus and any free writing prospectus we have authorized for use in connection with this offering
is accurate only as of the respective dates of those documents, regardless of the time of delivery of this prospectus supplement,
the accompanying base prospectus or any free writing prospectus or the time of any sale of a security. Our business, financial
condition, results of operations and prospects may have changed since those dates.
You should carefully read this prospectus
supplement, the accompanying base prospectus and the information and documents incorporated by reference herein and therein, as
well as any free writing prospectus we have authorized for use in connection with this offering, before making an investment decision.
See “Incorporation of Certain Information By Reference” and “Where You Can Find More Information” in this
prospectus supplement and the accompanying base prospectus
.
This
prospectus supplement and the accompanying base prospectus contain summaries of certain provisions contained in some of the documents
described herein and therein, but reference is made to the actual documents for complete information. All of the summaries are
qualified in their entirety by the full text of the actual documents, which have been filed or will be filed as exhibits to the
registration statement of which this prospectus supplement and the accompanying base prospectus form a part or the documents incorporated
by reference herein and therein, and are incorporated by reference herein and therein. See “Where You Can Find More Information”
in this prospectus supplement. We further note that the representations, warranties and covenants made by us in any agreement
that is filed as an exhibit to any document that is incorporated by reference into this prospectus supplement or the accompanying
base prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of
allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to
you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations,
warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus supplement and the accompanying base prospectus contain and incorporate by reference certain market data and industry
statistics and forecasts that are based on company-sponsored studies, independent industry publications and other publicly available
information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information
and we have not verified any of this data. Further, many of these statements involve risks and uncertainties and are subject to
change based on various factors, including those discussed under “Risk Factors” in this prospectus supplement and
the accompanying base prospectus and under similar headings in the documents incorporated by reference herein and therein. Accordingly,
investors should not place undue reliance on this information.
Unless
stated or the context requires otherwise, all references in this prospectus supplement to “our company,” “we,”
“us,” “our” and “OncoSec” refer to OncoSec Medical Incorporated, a Nevada corporation, and
its consolidated subsidiary. We own the registered trademarks or trademark applications for ImmunoPulse®, OncoSec™ and
NeoPulse™. All other trademarks, trade names and service marks included or incorporated by reference into this prospectus
supplement, the accompanying base prospectus or any free writing prospectus we have authorized for use in connection with this
offering are the property of their respective owners.
Cautionary
Note Regarding Forward-Looking Statements
This
prospectus supplement, the accompanying base prospectus, the documents we have filed with the SEC that are incorporated by reference
herein and therein and any free writing prospectus we have authorized for use in connection with this offering contain forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). In addition, from time to time we or our representatives have made or will make forward-looking
statements in various other filings that we make with the SEC or in other documents, including press releases or other similar
announcements. Forward-looking statements often concern our current plans, intentions, beliefs, expectations and statements regarding
our future performance. Statements containing terms such as “will,” “may,” “could,” “would,”
“believe,” “plan,” “expect,” “intend,” “estimate,” “anticipate”
and other phrases of similar meaning are considered to be forward-looking statements. Forward-looking statements we make in this
prospectus supplement, the accompanying base prospectus, the documents we have filed with the SEC that are incorporated by reference
herein and therein and any free writing prospectus we have authorized for use in connection with this offering include statements
about, among other things: our research and development activities, including expectations about the timing, status, progress
or results of any of our ongoing or planned clinical programs or any other trials or studies we may pursue in the future; our
needs for additional capital and our ability to obtain such capital as and when needed or at all; our expectations regarding our
future expense levels; our pipeline for product candidates or technologies we may seek to acquire or otherwise develop in the
future; any strategic transactions or developments we may pursue; our ability to obtain regulatory approval for any of our existing
or future product candidates, including the timing for obtaining any such approval and the accepted indications in any such approval;
the rate and degree of market acceptance of any product candidate that obtains regulatory approval; the state of the U.S. and
foreign healthcare markets and the impact of these conditions on our business; our ability to recruit and retain qualified personnel;
advancements in technology by us and our competitors and other competitive developments; and our ability to develop, obtain, preserve,
and/or protect intellectual property rights related to our product candidates and technologies.
Forward-looking
statements are based on our assumptions and are subject to known and unknown risks and uncertainties that could cause actual results
to differ materially from those reflected in or implied by these forward-looking statements. Factors that might cause actual results
to differ include, among others, those set forth under “Risk Factors” in this prospectus supplement, the accompanying
base prospectus and the documents incorporated by reference herein and therein, as well as those discussed under “Management’s
Discussion and Analysis of Financial Condition and Results of Operation” in our most recent annual report on Form 10-K and
subsequent quarterly reports on Form 10-Q and in our future periodic reports and other filings with the SEC, all of which are
incorporated by reference herein and therein. Readers are cautioned not to place undue reliance on any forward-looking statements
contained in this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference herein and
therein or any free writing prospectus we have authorized for use in connection with this offering, which reflect management’s
views and opinions only as of their respective dates. We assume no obligation to update forward-looking statements to reflect
actual results, changes in assumptions or changes in other factors affecting such forward-looking statements, except to the extent
required by applicable securities laws. You are advised, however, to consult any additional disclosures we have made or will make
in the filings we submit with the SEC, including reports on Forms 10-K, 10-Q and 8-K. All forward-looking statements attributable
to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained in this
prospectus supplement, the accompanying base prospectus or any free writing prospectus we have authorized for use in connection
with this offering.
|
|
|
|
|
|
Prospectus
Summary
This
summary highlights the material information contained in this prospectus supplement. This summary is not complete and
does not contain all of the information that you should consider before investing in our securities. For a more complete
understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information
in this prospectus supplement, the accompanying base prospectus and the information included in any free writing prospectus
we have authorized for use in connection with this offering, including the information under “Risk Factors”
beginning on page S-4 of this prospectus supplement and in our most recent annual report on Form 10-K and subsequent quarterly
reports on Form 10-Q and our future periodic reports and other filings with the SEC, as well as all other information
incorporated by reference herein and therein.
Our
Company
Our
mission is to pioneer new intratumoral immunotherapy treatments to benefit cancer patients. Our core platform technology,
ImmunoPulse®, is a drug-device therapeutic modality comprised of a proprietary electroporation delivery device consisting
of an electrical pulse generator and disposable applicators. The ImmunoPulse® platform is designed to deliver DNA-encoded
drugs and treat different tumor types. Our lead product candidate, ImmunoPulse® IL-12, uses our electroporation device
to deliver a DNA-encoded interleukin-12 (referred to as IL-12) with the aim of reversing the immunosuppressive microenvironment
in the tumor and engendering a systemic anti-tumor response against untreated tumors in other parts of the body. We are
currently focused on developing ImmunoPulse® IL-12 in combination with an approved anti-PD-1 (a monoclonal antibody)
therapy for melanoma in patients who have previously failed an anti-PD-1 therapy. In February 2017, we announced that
we received Fast Track designation from the U.S. Food and Drug Administration (the “FDA”) for ImmunoPulse®
IL-12, which could qualify ImmunoPulse® IL-12 for expedited FDA review, a rolling Biologics License Application review,
and other benefits.
We
are working to initiate our planned Phase II registration-directed study of ImmunoPulse® IL-12 in combination with
Merck & Co., Inc.’s (“Merck”) approved anti-PD-1 antibody KEYTRUDA® in patients with advanced,
metastatic (stage 3-4) melanoma who previously failed anti-PD-1 therapy. We refer to this study as PISCES. We expect the
PISCES study to be open for enrollment in July 2017, and we anticipate announcing initial interim results as early as
the first calendar quarter of 2018. Additionally, in May 2017, a subsidiary of Merck agreed to manufacture and supply
(at its own cost) KEYTRUDA® for PISCES.
We
are also in collaboration with the University of California, San Francisco, the sponsor of a multi-center Phase II clinical
trial evaluating ImmunoPulse® IL-12 in combination with KEYTRUDA® for the treatment of advanced, metastatic melanoma
in patients who are predicted to not respond to anti-PD-1 therapy alone. Merck is manufacturing and supplying KEYTRUDA®
to the sponsor of the study to support this trial.
We
are also pursuing a biomarker-focused pilot study of ImmunoPulse® IL-12 in triple negative breast cancer. We have
amended the clinical protocol for this study in order to improve the enrollment rate, which has been slow to enroll. This
study is ongoing and is focused on evaluating the ability of ImmunoPulse® IL-12 to alter the tumor microenvironment
and promote a pro-inflammatory response. In addition, our Phase II clinical trials of ImmunoPulse® IL-12 as a monotherapy
in Merkel Cell carcinoma, melanoma, and head and neck squamous cell carcinoma are now closed for enrollment and databases
are locked and clinical study reports are written. We are no longer pursuing our former Phase II clinical trial of ImmunoPulse®
IL-12 as a monotherapy in Cutaneous T-cell lymphoma, which has been closed.
Concurrently,
we are continuing to pursue advancements toward developing prototypes of our next-generation electroporation devices,
and to develop a proprietary multi-gene immune-modulating therapeutic candidate. In addition, we are pursuing additional
discovery research to identify new gene combinations for use with our ImmunoPulse® platform.
|
|
|
|
|
|
|
|
|
|
|
|
We
recorded a net loss of $4.6 million and $6.3 million for the three months ended April 30, 2017 and 2016, respectively,
$15.6 million and $20.3 million for the nine months ended April 30, 2017 and 2016, respectively, and $26.9 million and
$21.1 million for the fiscal years ended July 31, 2016 and 2015, respectively. We have generated no revenue since our
inception, and we do not expect to generate revenue from our operations in the near term. As a result, we may be unable
to raise any required capital in a timely manner, on acceptable terms or at all. Due to our historical losses and financial
condition, there is substantial doubt about our ability to continue as a going concern.
We
expect to use our available working capital primarily for the advancement of our existing and planned clinical programs,
including the initiation of PISCES, the continuation of enrollment in our Phase II clinical trial in triple negative breast
cancer, and the conclusion of our Phase II clinical trials in Merkel Cell carcinoma, melanoma, and head and neck squamous
cell carcinoma.
Corporate
Information
We
were incorporated under the laws of the State of Nevada on February 8, 2008 under the name Netventory Solutions Inc. to
pursue the business of inventory management solutions. Effective March 1, 2011, we completed a merger with our subsidiary
for the sole purpose of changing our name to “OncoSec Medical Incorporated”. Our principal executive offices
are located at 5820 Nancy Ridge Drive, San Diego, California 92121. The telephone number at our principal executive office
is (855) 662-6732. Our website address is
www.oncosec.com
. Information contained on our website is not deemed part
of this prospectus supplement.
|
|
|
|
|
|
|
|
Common stock
offered by us
|
|
Shares
of our common stock having an aggregate gross sales price of up to $8,400,000.
|
|
|
|
|
|
|
|
|
|
Common stock to be outstanding
after the offering(1)
|
|
28,536,615
shares, assuming the sale of 7,368,421
shares at a price of $1.14 per share, which was the last reported sales price of our common stock on the NASDAQ
Capital Market on July 24, 2017. The actual number of shares issued in this offering, if any, will vary depending on
a number of factors, including, among others, the prices at which any shares are actually sold in this offering.
|
|
|
|
|
|
|
|
|
|
Manner of offering
|
|
Pursuant
to the terms of the equity distribution agreement, we may offer and sell shares of our common stock through or to Oppenheimer,
acting as our sales agent or principal, over a period of time and from time to time by any method deemed to be an “at
the market offering” as defined in Rule 415 under the Securities Act, including sales made directly on or through the
NASDAQ Capital Market or sales made to or through a market maker other than on an exchange or otherwise. See “Plan of
Distribution” on page S-11.
|
|
|
|
|
|
|
|
|
|
Use of proceeds
|
|
We
expect to use the net proceeds received from this offering, if any, for working capital and general corporate purposes, including
primarily for our PISCES study and for other research and development activities. See “Use of Proceeds” on page
S-7.
|
|
|
|
|
|
|
|
|
|
Risk factors
|
|
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should carefully review and
consider the risks and uncertainties described under “Risk Factors” beginning on page S-4 of this prospectus
supplement, on page 3 of the accompanying base prospectus, in our most recent annual report on Form 10 K and subsequent
quarterly reports on Form 10 Q and our future periodic reports and other filings with the SEC, as well as all other information
incorporated by reference herein and therein.
|
|
|
|
|
|
|
|
|
|
NASDAQ Capital Market symbol
|
|
ONCS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Based
on 21,168,194 shares outstanding as of April 30, 2017 and excludes, as of that date, the following:
|
|
|
|
|
|
|
|
|
|
●
|
3,731,311
shares of common stock issuable upon exercise of outstanding options having a weighted-average exercise price of $1.93 per
share, of which approximately 1,470,074 shares having a weighted-average exercise price of $2.58 per share were exercisable;
|
|
|
|
|
|
|
|
|
|
|
●
|
1,115,000
shares of common stock issuable upon the vesting and settlement of outstanding restricted stock units;
|
|
|
|
|
|
|
|
|
|
|
●
|
423,689
shares of common stock reserved for issuance and available for future grant under our 2011 Stock Incentive Plan (as amended);
|
|
|
|
|
|
|
|
|
|
|
●
|
463,580
shares of common stock reserved for issuance and available for future grant under our Employee Stock Purchase Plan; and
|
|
|
|
|
|
|
|
|
|
|
●
|
9,494,740
shares of common stock issuable upon exercise of outstanding warrants having a weighted-average exercise price of $3.00 per
share.
|
|
|
|
|
|
|
|
Risk
Factors
Investing
in our common stock involves a high degree of risk. Before purchasing our securities, you should carefully read and consider the
following risk factors, as well as all other information contained and incorporated by reference in this prospectus supplement
and the accompanying base prospectus, including our consolidated financial statements and the related notes and our disclosures
under “Risk Factors” in our most recent annual report on Form 10-K and subsequent quarterly reports on Form 10-Q and
our future periodic reports and other filings with the SEC. Each of these risk factors, either alone or taken together, could
adversely affect our business, operating results and financial condition, as well as the value of an investment in our securities.
There may be additional risks that we do not presently know of or that we currently believe are immaterial, which could also impair
our business and financial position. If any of the events described below were to occur, our financial condition, our ability
to access capital resources, our results of operations and/or our future growth prospects could be materially and adversely affected
and the market price of our common stock could decline. As a result, you could lose some or all of any investment you may make
in our securities.
Risks
Related to this Offering
Sales
of our common stock in this offering or otherwise, or the perception that such sales may occur, could depress our stock price.
We
may issue and sell shares of our common stock with an aggregate gross sales price of up to $8,400,000 from time to time in this
offering. The actual number of shares of common stock that may be issued and sold in this offering, as well as the timing of any
such sales, will depend on a number of factors, including, among others, the prices at which any shares are actually sold this
offering (which may be influenced by market conditions, the trading price of our common stock and other factors) and our determinations
as to the appropriate timing, sources and amounts of funding we need. The issuance and sale from time to time of these new shares
of common stock, or the mere fact that we are able to issue and sell these shares in this offering, could cause the market price
of our common stock to decline.
In
addition, the market price of our common stock could decline as a result of sales, or the perceived possibility of sales, by our
existing stockholders. We have completed a number of offerings of our securities in recent years, including our common stock and
warrants to purchase our common stock. Future sales of common stock by our existing stockholders, including those who acquired
our common stock in our prior offerings or through the exercise of outstanding warrants, or the perception that such sales may
occur, could also depress the price of our common stock.
You
may experience dilution.
At
the time of any sale of shares of our common stock in this offering, the sale price per share of our common stock may be higher
than the book value per share of our common stock. In that case, you would experience immediate and substantial dilution with
respect to the net tangible book value of the shares of common stock you purchase in this offering. The actual amount of dilution
will be based on a number of factors, including our use of proceeds from this offering, the number of shares sold in this offering
and the timing of any such sales, and other aspects of our financial condition and operations at the time of any sale, and cannot
be determined at this time. See “Dilution” on page S-6 for more information.
In
addition, we have a significant number of stock options and warrants outstanding. To the extent any of these outstanding stock
options or warrants are exercised, or to the extent we issue additional shares of our common stock or derivative securities in
the future, investors purchasing our common stock in this offering may experience further dilution. Offerings of our securities
have historically provided our primary source of capital to fund our operations, and we expect that we will pursue additional
securities offerings for capital-raising purposes in the future, potentially in the near term. We may choose to conduct additional
securities offerings for a variety of purposes, including acquisitions, collaborations or other strategic transactions or, even
if we believe we have sufficient cash on-hand for our near-term operating plans, for capital-raising purposes, depending on market
conditions, capital requirements or strategic considerations. To the extent we conduct additional offerings of our securities
for capital-raising or other purposes, the issuance of these securities could result in further dilution to investors in this
offering and could result in downward pressure on the market price of our common stock.
We
will have broad discretion over the use of the net proceeds from this offering, if any, and we may not use these proceeds effectively
or in a manner with which you agree.
We
currently anticipate using the net proceeds from this offering, if any, for working capital and general corporate purposes, including
primarily for our PISCES study and for other research and development activities. This represents our best estimate of the manner
in which we will use any net proceeds we receive from this offering based on the status of our business, but we have not reserved
or allocated amounts for specific purposes and we cannot specify with certainty how or when we would use any net proceeds. As
a result, we will have broad discretion in the application of any net proceeds we receive from this offering and we could use
any such proceeds for purposes other than those currently contemplated. You will not have the opportunity, as part of your investment
decision, to assess whether any such proceeds are being used effectively or in a manner with which you agree. The net proceeds,
if any, may be used for corporate purposes that do not increase our operating results or the value of our common stock, on a near-term
or long-term basis. Further, until any net proceeds are used, they may be placed in investments that do not produce income or
that lose value.
The
price and trading volume of our common stock may be highly volatile, and you could lose all or part of your investment.
Our
common stock has experienced, and is likely to continue to experience, significant fluctuations in its stock price and trading
volume. A sustained and active trading market for our common stock may never develop, in which case our stockholders could experience
increased difficulty selling their shares of our common stock. Additionally, the market price for our common stock could continue
to be highly volatile, in which case our stockholders may be unable to sell their shares of our common stock at a premium to their
purchase price or at a price they otherwise deem acceptable.
Volatility
in our stock price or trading volume may be in response to various factors, some of which may be beyond our control. In addition
to the other factors discussed or incorporated by reference herein, factors that may cause fluctuations in our stock price or
trading volume include, among others:
|
|
●
|
adverse
research and development or clinical trial results;
|
|
|
|
|
|
|
●
|
conducting
open-ended clinical trials, which could lead to results (either positive or negative) being available to the public prior
to a formal announcement;
|
|
|
|
|
|
|
●
|
our
liquidity and ability to obtain additional capital, including the market’s reaction to any announced capital-raising
transaction;
|
|
|
|
|
|
|
●
|
any
negative announcement by the FDA or comparable regulatory bodies outside the United States, including that it has denied any
request to approve one or more of our product candidates for commercialization;
|
|
|
|
|
|
|
●
|
market
assessments of any announced strategic transaction, including the likelihood that it would be completed and the timing for
completion;
|
|
|
|
|
|
|
●
|
potential
negative market reaction to the terms or volume of any issuance of shares of our common stock or other securities to new investors,
pursuant to strategic or capital-raising transactions or to employees, directors or other service providers;
|
|
|
|
|
|
|
●
|
sales
of substantial amounts of our common stock, or the perception that substantial amounts of our common stock may be sold, by
stockholders in the public market;
|
|
|
|
|
|
|
●
|
declining
working capital to fund operations, or other signs of financial uncertainty;
|
|
|
|
|
|
|
●
|
significant
advances made by competitors that adversely affect our competitive position;
|
|
|
|
|
|
|
●
|
the
loss of key personnel and the inability to attract and retain additional highly-skilled personnel; and
|
|
|
|
|
|
|
●
|
general
market and economic conditions.
|
Dilution
If
you invest in our common stock, you will experience immediate dilution to the extent of the difference between the price per share
you pay in this offering and the net tangible book value per share of our common stock immediately after this offering. Our net
tangible book value per share is determined by dividing our total tangible assets, less total liabilities, by the number of shares
of our common stock outstanding as of a particular date.
As
of April 30, 2017, our net tangible book value was approximately $16.0 million, or $0.75 per share of our common stock, based
upon 21,168,194 shares of our common stock outstanding as of that date.
After
giving effect to the assumed sale in this offering of $8,400,000 of our common stock, the maximum aggregate gross
sales price of shares of our common stock in this offering, at a price of $1.14 per share, which was the last reported
sales price of our common stock on the NASDAQ Capital Market on July 24, 2017, and after deducting the commissions and
estimated offering expenses payable by us, our as adjusted net tangible book value as of April 30, 2017 would have been
approximately $24.0 million, or $0.84 per share. This represents an immediate increase in our net tangible book
value of $0.09 per share to existing stockholders and immediate dilution in our net tangible book value of $0.30
per share to investors purchasing our common stock in this offering. The following table illustrates this dilution on a per
share basis:
|
Assumed offering price per share of common
stock
|
|
|
|
|
|
$
|
1.14
|
|
|
Net tangible
book value per share of common stock as of April 30, 2017
|
|
$
|
0.75
|
|
|
|
|
|
|
Increase
in net tangible book value per share of common stock attributable to this offering
|
|
$
|
0.09
|
|
|
|
|
|
|
Adjusted net tangible book value per share
of common stock as of April 30, 2017 after this offering
|
|
|
|
|
|
$
|
0.84
|
|
|
Dilution
per share to investors purchasing our common stock in this offering
|
|
|
|
|
|
$
|
0.30
|
|
The
discussion and the table above is based on 21,168,194 shares of our common stock outstanding as of April 30, 2017 and excludes,
as of that date, the following:
|
|
●
|
3,731,311
shares of common stock issuable upon exercise of outstanding options having a weighted average exercise price of $1.93 per
share, of which approximately 1,470,074 shares having a weighted average exercise price of $2.58 per share were exercisable;
|
|
|
|
|
|
|
●
|
1,115,000
shares of common stock issuable upon the vesting and settlement of outstanding restricted stock units;
|
|
|
|
|
|
|
●
|
423,689
shares of common stock reserved for issuance and available for future grant under our 2011 Stock Incentive Plan (as amended);
|
|
|
|
|
|
|
●
|
463,580
shares of common stock reserved for issuance and available for future grant under our Employee Stock Purchase Plan; and
|
|
|
|
|
|
|
●
|
9,494,740
shares of common stock issuable upon exercise of outstanding warrants having a weighted average exercise price of $3.00 per
share.
|
Additionally,
we may choose to conduct additional securities offerings for a variety of purposes, including acquisitions, collaborations or
other strategic transactions or, even if we believe we have sufficient cash on-hand for our near-term operating plans, for capital-raising
purposes, depending on market conditions, capital requirements or strategic considerations. To the extent we conduct additional
offerings of our securities for capital-raising or other purposes, the issuance of these securities could result in further dilution
to investors in this offering. See “Risk Factors—You may experience dilution” on page S-4.
Use
of Proceeds
We
are not required to request any sales under the equity distribution agreement, and Oppenheimer is not required to sell any specific
number or dollar amount of shares under the equity distribution agreement. As a result, the amount of net proceeds we will receive
from this offering, if any, is not determinable at this time.
We
intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including primarily
for our PISCES study and for other research and development activities. This represents our best estimate of the manner in which
we will use any net proceeds we receive from this offering based on the status of our business, but we have not reserved or allocated
amounts for specific purposes and we cannot specify with certainty how or when we would use any net proceeds. Amounts and timing
of actual expenditures will depend on numerous factors, including, among others, our clinical trial programs and other research
and development activities, as well as the amount of cash we use in our operations. We will have broad discretion in the application
of any net proceeds we receive from this offering, and we could use any such proceeds for purposes other than those currently
contemplated.
Until
the funds are used, we intend to invest any net proceeds from this offering in interest-bearing money market or other accounts.
Description
of Capital Stock
General
The
following summary of the material features of our capital stock does not purport to be complete and is subject to, and qualified
in its entirety by, the provisions of our articles of incorporation, as currently in effect, our amended and restated bylaws,
the Nevada Revised Statutes and other applicable law. For information on how to obtain copies of our articles of incorporation
and bylaws, which are exhibits to the registration statement of which this prospectus is a part, see “Where You Can Find
More Information.”
Pursuant
to our articles of incorporation, we are currently authorized to issue 160,000,000 shares of common stock, par value $0.0001 per
share. As of April 30, 2017 there were 21,168,194 shares of our common stock outstanding.
Common
Stock
Voting
Rights
The
outstanding shares of our common stock are fully paid and non-assessable. Holders of our common stock are entitled to one vote,
in person or by proxy, for each share held of record on all matters submitted to a vote of the stockholders. Except as otherwise
provided by applicable law, holders of our common stock are not entitled to cumulative voting of their shares in elections of
directors.
Dividends
Subject
to the provisions of applicable law, including the Nevada Revised Statutes, the holders of shares of our common stock are entitled
to receive, when and as declared by the board of directors, dividends or other distributions (whether payable in cash, property,
or securities of OncoSec) out of the assets of OncoSec legally available for such dividends or other distributions.
Other
Rights
No
stockholder of OncoSec has any preemptive right under our articles of incorporation to subscribe for, purchase, or otherwise acquire
shares of any class or series of capital stock of OncoSec. The shares of our common stock are not subject to redemption by operation
of a sinking fund or otherwise. In the event of any liquidation, dissolution, or winding up of OncoSec, subject to the rights,
if any, of the holders of other classes of our capital stock, the holders of shares of our common stock are entitled to receive
any of our assets available for distribution to our stockholders ratably in proportion to the number of shares held by them.
Our
common stock is listed on the NASDAQ Capital Market under the symbol “ONCS”.
Liability
and Indemnification of Directors and Officers
The
Nevada Revised Statutes provide us with the power to indemnify any of our directors and officers. The director or officer must
have conducted himself/herself in good faith and reasonably believe that his/her conduct was in, or not opposed to, our best interests.
In a criminal action, the director or officer must not have had reasonable cause to believe his/her conduct was unlawful.
Under
applicable sections of the Nevada Revised Statutes, advances for expenses may be made by agreement upon receipt of an undertaking
by or on behalf of the director or officer to repay the expenses if it is determined the officer or director is not entitled to
be indemnified.
Our
bylaws include an indemnification provision under which we must indemnify any of our directors or officers, or any of our former
directors or officers, to the full extent permitted by law. We have also entered into indemnification agreements with each of
our directors and officers under which we must indemnify them to the full extent permitted by law. If Section 2115 of the California
Corporations Code is applicable to us, certain laws of California relating to the indemnification of directors, officer and others
also will govern.
At
present, there is no pending litigation or proceeding involving any of our directors or officers for which indemnification is
sought, nor are we aware of any threatened litigation that is likely to result in claims for indemnification. We also maintain
insurance policies that indemnify our directors and officers against various liabilities, including liabilities arising under
the Securities Act, which may be incurred by any director or officer in his or her capacity as such.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted for our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event a claim for indemnification against such liabilities (other than payment by us for expenses incurred or paid by a
director, officer or controlling person of ours in successful defense of any action, suit, or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction, the question of whether such
indemnification by it is against public policy in the Securities Act and will be governed by the final adjudication of such issue.
Anti-Takeover
Provisions of Nevada State Law
Some
features of the Nevada Revised Statutes, which are further described below, may have the effect of deterring third parties from
making takeover bids for control of us or may be used to hinder or delay a takeover bid. This would decrease the chance that our
stockholders would realize a premium over market price for their shares of common stock as a result of a takeover bid.
Acquisition
of Controlling Interest
The
Nevada Revised Statutes contain provisions governing acquisition of a controlling interest of a Nevada corporation. These provisions
provide generally that any person or entity that acquires a certain percentage of the outstanding voting shares of a Nevada corporation
may be denied voting rights with respect to the acquired shares, unless certain criteria are satisfied. Our Amended and Restated
Bylaws provide that these provisions will not apply to us or to any existing or future stockholder or stockholders.
Combination
with Interested Stockholder
The
Nevada Revised Statutes contain provisions governing the combination of a Nevada corporation that has 200 or more stockholders
of record with an interested stockholder. These provisions may have the effect of delaying or making it more difficult to affect
a change in control of our company.
A
corporation affected by these provisions may not engage in a combination within two years after the interested stockholder acquires
his, her or its shares unless the combination meets all of the requirements of the articles of incorporation of the corporation
and (i) the combination or the transaction by which the person first became an interested stockholder is approved by the board
of directors before the person first became an interested stockholder, or (ii) the combination is approved by the board of directors
and, at or after that time, the combination is approved at an annual or special meeting of the stockholders, and not by written
consent, by the affirmative vote of the holders of stock representing at least 60 percent of the outstanding voting power of the
corporation’s disinterested stockholders. Generally, if approval is not obtained, then after the expiration of the two-year
period, the business combination may be consummated with the approval of the board of directors before the person became an interested
stockholder or a majority of the voting power held by disinterested stockholders, or if the consideration to be received per share
by disinterested stockholders is at least equal to the highest of:
|
|
●
|
the
highest price per share paid by the interested stockholder within the two years immediately preceding the date of the announcement
of the combination or within three years immediately before, or in, the transaction in which he, she or it became an interested
stockholder, whichever is higher;
|
|
|
●
|
the
market value per share on the date of announcement of the combination or the date the person became an interested stockholder,
whichever is higher; or
|
|
|
|
|
|
|
●
|
if
higher for the holders of preferred stock, the highest liquidation value of the preferred stock, if any.
|
Generally,
these provisions define an interested stockholder as a person who is the beneficial owner, directly or indirectly of 10% or more
of the voting power of the outstanding voting shares of a corporation, and define combination to include any merger or consolidation
with an interested stockholder, or any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction
or a series of transactions with an interested stockholder of assets of the corporation having:
|
|
●
|
an
aggregate market value equal to more than 5% of the aggregate market value of the assets of the corporation;
|
|
|
|
|
|
|
●
|
an
aggregate market value equal to more than 5% of the aggregate market value of all outstanding shares of the corporation; or
|
|
|
|
|
|
|
●
|
representing
more than 10% of the earning power or net income of the corporation.
|
Articles
of Incorporation and Bylaws
There
are no provisions in our articles of incorporation or our bylaws that would delay, defer or prevent a change in control of our
company and that would operate only with respect to an extraordinary corporate transaction involving our company or any of our
subsidiaries, such as merger, reorganization, tender offer, sale or transfer of substantially all of its assets, or liquidation.
Transfer
Agent
The
transfer agent for our common stock is Nevada Agency and Transfer Company. The transfer agent’s address is 50 West Liberty
Street, Suite 880, Reno, Nevada 89501.
Plan
of Distribution
We
have entered into an equity distribution agreement (the “Distribution Agreement”), dated as of July 25, 2017,
with Oppenheimer & Co. Inc. (“Oppenheimer”) under which we may, over a period of time and from time to time, offer
and sell shares of our common stock having an aggregate sales price of up to $8,400,000 through Oppenheimer, or to Oppenheimer.
Sales of our common stock through Oppenheimer, if any, will be made by means of ordinary brokers’ transactions on the NASDAQ
Capital Market or otherwise at market prices prevailing at the time of sale or at prices related to such prevailing market prices
or as otherwise agreed upon by us. Oppenheimer has advised us that it will not engage in any transactions that stabilize the price
of our common stock.
Oppenheimer
will use its commercially reasonable efforts to sell the common stock offered hereby, from time to time, based upon instructions
in a placement notice from us (including any price, time or size limits or other parameters or conditions we may impose). Oppenheimer’s
obligations under the Distribution Agreement to sell our common stock are subject to a number of conditions that we must meet.
We or Oppenheimer may suspend the offering of common stock upon proper notice and subject to other conditions.
Oppenheimer
has agreed to provide written confirmation of any sales to us no later than the opening of the trading day on the NASDAQ Capital
Market following the trading day on which shares of common stock were sold under the Distribution Agreement. Each confirmation
will include the number of shares sold on the preceding day, the net proceeds to us and the compensation payable by us to Oppenheimer
in connection with the sales.
We
will pay Oppenheimer commissions for its services in acting as agent in the sale of common stock offered hereby. Under the Distribution
Agreement, Oppenheimer will be entitled to compensation of 2.5% of the gross sales price of all shares sold through it as our
agent. Also, we have agreed to reimburse Oppenheimer its reasonable documented out-of-pocket expenses incurred by it in connection
with the transactions and other matters contemplated under the Distribution Agreement, up to an aggregate of $70,000. Assuming
all of our common stock in the aggregate amount of $8,400,000 is sold in this offering at a price of $1.14 per share, the
last reported sale price of our common stock on the NASDAQ Capital Market on July 24, 2017, we expect our aggregate expenses
in connection with the offering, excluding commissions or discounts to Oppenheimer, to be approximately $200,000.
If
we sell common stock to Oppenheimer, acting as a principal, we will set forth the terms of such transactions in the applicable
placement notice and, to the extent required by applicable law, we will describe these terms in a separate prospectus supplement
or pricing supplement.
Settlement
of sales of common stock will occur on the third trading day following the date on which any sales are made (or such earlier date
as is then specified for regular-way trading), or on some other date that is agreed upon by us and Oppenheimer in connection with
a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds to be received in
any escrow, trust or similar arrangement. Sales of common stock in this offering, if any, as contemplated by this prospectus supplement
and the accompanying base prospectus will be settled through the facilities of The Depository Trust Company or by such other means
as we and Oppenheimer may agree upon.
We
will report at least quarterly the number of shares of common stock sold through or to Oppenheimer under the Distribution Agreement,
the net proceeds to us and the compensation paid by us to Oppenheimer in connection with the sales, if any.
From
time to time, Oppenheimer and its affiliates have provided, and may in the future provide, various investment banking and advisory
services for us for which they may in the future receive customary fees and expenses. Oppenheimer and its affiliates may, from
time to time, engage in other transactions with and perform services for us in the ordinary course of their business. In the course
of their businesses, Oppenheimer and its affiliates may actively trade our securities or loans for their own account or for the
accounts of customers, and, accordingly, Oppenheimer and its affiliates may at any time hold long or short positions in such securities
or loans. Except for services provided in connection with this offering, Oppenheimer has not provided us with any investment banking
or other financial services during the 180-day period preceding the date of this prospectus supplement and we do not expect to
retain Oppenheimer to perform any investment banking or other financial services for at least 90 days after the date of this prospectus
supplement.
In
connection with the sale of our common stock in this offering, Oppenheimer will be deemed to be an “underwriter” within
the meaning of the Securities Act and the compensation paid to Oppenheimer will be deemed to be underwriting commissions or discounts.
We have agreed to provide indemnification and contribution to Oppenheimer against certain civil liabilities, including liabilities
under the Securities Act.
The
offering of common stock pursuant to the Distribution Agreement will terminate upon the earlier of (1) the sale of all the common
stock subject to the Distribution Agreement or (2) termination of the Distribution Agreement. The Distribution Agreement may be
terminated by Oppenheimer or us, each in its sole discretion, at any time by giving notice to the other party.
Legal
Matters
The
validity of the securities offered by this prospectus supplement will be passed upon for us by McDonald Carano LLP, Reno,
Nevada. Certain other legal matters relating to this offering will be passed upon for us by Morrison & Foerster LLP, San Diego,
California. Lowenstein Sandler LLP, New York, New York, is acting as counsel for Oppenheimer in connection with this offering.
Experts
The
financial statements incorporated by reference in this prospectus supplement have been so incorporated by reference in reliance
upon the reports of Mayer Hoffman McCann P.C., independent registered public accounting firm, given on the authority of said firm
as experts in auditing and accounting.
Incorporation
of Certain Information By Reference
The
SEC allows us to “incorporate by reference” the information we file with it. This means that we can disclose important
information to you in this prospectus supplement by referring you to another document. The information incorporated by reference
herein is considered to be a part of this prospectus supplement. We incorporate by reference the documents listed below that we
have previously filed with the SEC (excluding any portions of any document that are not deemed furnished and not filed with the
SEC pursuant to applicable rules and instructions of the SEC):
|
|
●
|
our
Annual Report on Form 10-K for the fiscal year ended July 31, 2016, filed with the SEC on October 13, 2016;
|
|
|
|
|
|
|
●
|
our
Quarterly Reports on Form 10-Q for the quarters ended October 31, 2016, January 31, 2017 and April 30, 2017, filed with the
SEC on December 8, 2016, March 16, 2017, and June 1, 2017, respectively
|
|
|
|
|
|
|
●
|
our
definitive Proxy Statement on Schedule 14A, filed with the SEC on October 27, 2016;
|
|
|
|
|
|
|
●
|
our
Current Reports on Form 8-K, filed with the SEC on September 6, 2016, December 7, 2016, December 16, 2017, and May 11, 2017;
and
|
|
|
|
|
|
|
●
|
the
description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on May 27, 2015, including
any amendments or reports filed for the purpose of updating such description.
|
We
also incorporate by reference into this prospectus supplement additional documents that we may file with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the completion or termination of this offering, but excluding any information
deemed furnished and not filed with the SEC. Any statement contained in a previously filed document is deemed to be modified or
superseded for purposes of this prospectus supplement to the extent that a statement contained in this prospectus supplement or
in a subsequently filed document incorporated by reference herein modifies or supersedes the statement, and any statement contained
in this prospectus supplement is deemed to be modified or superseded for purposes of this prospectus supplement to the extent
that a statement contained in a subsequently filed document incorporated by reference herein modifies or supersedes the statement.
We
will provide without charge to each person, including any beneficial owner, to whom a prospectus supplement is delivered, upon
written or oral request of that person, a copy of any or all of the documents we are incorporating by reference into this prospectus
supplement, other than exhibits to those documents unless such exhibits are specifically incorporated by reference into those
documents. Such written requests should be addressed to:
OncoSec
Medical Incorporated
5820
Nancy Ridge Drive
San
Diego, California 92121
Attention:
Investor Relations
You
may also make such requests by calling us at (858) 662-6732.
Where
You Can Find More Information
We
have filed with the SEC a registration statement under the Securities Act that registers the securities offered hereby. The registration
statement, including the exhibits and schedules attached thereto and the information incorporated by reference therein, contains
additional relevant information about the securities and our company, which we are allowed to omit from this prospectus supplement
pursuant to the rules and regulations of the SEC. In addition, we file annual, quarterly and current reports and proxy statements
and other information with the SEC. You may read and copy any document that we file at the SEC’s Public Reference Room at
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference
Room. Our SEC filings are also available on the SEC’s website at
www.sec.gov
. Copies of certain information filed
by us with the SEC are also available on our website at
www.oncosec.com
. We have not incorporated by reference into this
prospectus supplement the information on our website and it is not a part of this document.
PROSPECTUS
ONCOSEC
MEDICAL INCORPORATED
$100,000,000
Common
Stock
Warrants
Debt
Securities
Rights
Units
$5,471,763
Common
Stock
Warrants
Debt
Securities
By
this prospectus, we may offer, from time to time, up to $100,000,000 of any combination of the securities described in this prospectus.
Additionally, by this prospectus, we may offer, from time to time, up to $5,471,763 of any combination of common stock, debt securities
or warrants to purchase common stock and/or debt securities, which were registered pursuant to our Registration Statement on Form
S-3, File No. 333-187893, initially filed on April 18, 2014 and declared effective on May 12, 2014. All of the securities registered
hereby may be sold separately or as units with other securities.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement, which will describe the method and
the terms of the offering. We will provide you with specific amount, price and terms of the applicable offered securities in one
or more supplements to this prospectus. You should read this prospectus and any supplement carefully before you purchase any of
our securities.
Our
common stock is listed on the NASDAQ Capital Market under the symbol “ONCS.” On August 22 , 2016, the closing
price of our common stock on the NASDAQ Capital Market was $1.83 per share. The aggregate market value of our outstanding
common stock held by non-affiliates, computed by reference to the last sold price of $1.91 per share on the NASDAQ Capital Market
on August 9, 2016, is approximately $34.3 million, based on 18,704,052 shares of common stock outstanding, of which 17,944,664
are held by non-affiliates. We have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3
during the 12 calendar month period that ends on, and includes, the date of this prospectus.
Investing
in our securities involves risk. Please carefully read the information under “Risk Factors” beginning on page 3 for
information you should consider before investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We
may offer the securities in amounts, at prices and on terms determined at the time of offering. We may sell the securities directly
to you, through agents we select, or through underwriters and dealers we select. If we use agents, underwriters or dealers to
sell the securities, we will name them and describe their compensation in a prospectus supplement. In addition, the underwriters
may overallot a portion of the securities. For additional information regarding the methods of sale of our securities, you should
refer to the section entitled “Plan of Distribution” in this prospectus.
This
prospectus is dated August 25, 2016
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this shelf process, we may, from time to time, offer or sell any combination
of the securities described in this prospectus in one or more offerings.
This
prospectus provides you with a general description of the securities offered by us. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may
also add to, update or change information contained in the prospectus and, accordingly, to the extent inconsistent, information
in this prospectus is superseded by the information in the prospectus supplement.
The
prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities
offered; the initial public offering price; the price paid for the securities; net proceeds; and the other specific terms related
to the offering of the securities.
You
should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or
issuer free writing prospectus relating to a particular offering. No person has been authorized to give any information or make
any representations in connection with this offering other than those contained or incorporated by reference in this prospectus,
any accompanying prospectus supplement and any related issuer free writing prospectus in connection with the offering described
herein and therein, and, if given or made, such information or representations must not be relied upon as having been authorized
by us. Neither this prospectus nor any prospectus supplement nor any related issuer free writing prospectus shall constitute an
offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such person
to make such an offering or solicitation. This prospectus does not contain all of the information included in the registration
statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement,
including its exhibits. You should read the entire prospectus and any prospectus supplement and any related issuer free writing
prospectus, as well as the documents incorporated by reference into this prospectus or any prospectus supplement or any related
issuer free writing prospectus, before making an investment decision. Neither the delivery of this prospectus or any prospectus
supplement or any issuer free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information
contained or incorporated by reference herein or in any prospectus supplement or issuer free writing prospectus is correct as
of any date subsequent to the date hereof or of such prospectus supplement or issuer free writing prospectus, as applicable.
PROSPECTUS
SUMMARY
The
following summary highlights information contained in this prospectus or incorporated by reference. While we have included what
we believe to be the most important information about us and this offering, the following summary may not contain all the information
that may be important to you. You should read this entire prospectus carefully, including the risks of investing discussed under
“Risk Factors” beginning on page 3, the information to which we refer you and the information incorporated into this
prospectus by reference, for a complete understanding of our business and this offering. References in this prospectus to “our
company,” “we,” “our,” “us” and “OncoSec” refer to OncoSec Medical Incorporated,
a Nevada corporation.
Company
Overview
As
a biotechnology company, our mission is to focus on the advancement of immune system-stimulating treatments, with a focus on discovering
and developing novel immuno-oncology therapies. Our portfolio includes biologic immunology therapeutic product candidates intended
to treat a wide range of tumor types. Our technology also includes intellectual property relating to our ImmunoPulse™ delivery
technology. ImmunoPulse™ is an electroporation delivery device that we use in combination with our therapeutic product candidates,
including DNA plasmids that encode for immunologically active agents, to deliver the therapeutic directly into the tumor and promote
an inflammatory response against the cancer. This unique therapeutic modality is intended to reverse the immunosuppressive microenvironment
in the tumor and engender a systemic anti-tumor response against untreated tumors in other parts of the body. Our electroporation
devices consist of an electrical pulse generator and disposable applicators, which can be adapted to treat different tumor types.
Corporate
Information
We
were incorporated under the laws of the State of Nevada on February 8, 2008 under the name Netventory Solutions Inc. Initially,
we provided online inventory services to small and medium sized companies. In March 2011, we acquired certain assets related to
the use of drug-medical device combination products for the treatment of various cancers, abandoned our efforts in the online
inventory services industry and began focusing our efforts in the biotechnology industry, and changed our name to OncoSec Medical
Incorporated.
Our
principal executive offices are located at 5820 Nancy Ridge Drive, San Diego, California 92121. The telephone number at our principal
executive office is (855) 662-6732. Our website address is www.oncosec.com. Information contained on our website is not deemed
part of this prospectus.
The
Securities We May Offer
We
may offer up to $100,000,000 of common stock, warrants, debt securities, rights and units in one or more offerings and in any
combination, and we also may offer up to $5,471,763 of common stock, warrants and debt securities in one or more offerings and
in any combination. This prospectus provides you with a general description of the securities we may offer. A prospectus supplement,
which we will provide each time we offer securities, will describe the specific amounts, prices and terms of these securities.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth below
under “Plan of Distribution.” We, as well as any agents acting on our behalf, reserve the sole right to accept and
to reject in whole or in part any proposed purchase of securities. Each prospectus supplement will set forth the names of any
underwriters, dealers, agents or other entities involved in the sale of securities described in that prospectus supplement and
any applicable fee, commission or discount arrangements with them.
Capital
Stock
Our
capital stock consists of our common stock, par value $0.0001 per share. We may offer shares of our common stock, either alone
or underlying other registered securities exercisable for or convertible into our common stock. Holders of our common stock are
entitled to receive dividends declared by our board of directors out of funds legally available for the payment of dividends.
Currently, we do not pay a dividend. Each holder of common stock is entitled to one vote per share. The holders of common stock
have no preemptive rights.
Warrants
We
may offer warrants for the purchase of common stock or debt securities. We may issue warrants independently or together with other
securities.
Debt
Securities
We
may offer secured or unsecured obligations in the form of one or more series of senior or subordinated debt. The senior debt securities
and the subordinated debt securities are together referred to in this prospectus as “debt securities.” The senior
debt securities will have the same rank as all of our other unsubordinated debt. The subordinated debt securities generally will
be entitled to payment only after payment of our senior debt. Senior debt generally includes all debt for money borrowed by us,
except debt that is stated in the instrument governing the terms of that debt to be not senior to, or to have the same rank in
right of payment as, or to be expressly junior to, the subordinated debt securities. We may issue debt securities that are convertible
into shares of our common stock.
The
senior and subordinated debt securities will be issued under separate indentures between us and a trustee. We have summarized
the general features of the debt securities to be governed by the indentures. These indentures have been filed as exhibits to
the registration statement of which this prospectus forms a part. We encourage you to read these indentures. Instructions on how
you can get copies of these documents are provided under the heading “Where You Can Find More Information.”
Rights
We
may issue rights to purchase our common stock, debt securities or other securities, or any combination thereof. These rights may
be issued independently or together with other securities.
Units
We
may issue units composed of any combination of our common stock, warrants and debt securities.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing
in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in
the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the
prospectus supplement or appearing or incorporated by reference in this prospectus. Each of the referenced risks and uncertainties
could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment
in our securities.
FORWARD-LOOKING
STATEMENTS
This
prospectus and the registration statement of which it forms a part, any prospectus supplement, any related issuer free writing
prospectus and the documents incorporated by reference into these documents contain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements deal with our current plans, intentions,
beliefs and expectations and statements of future economic performance. Statements containing terms such as “believe,”
“do not believe,” “plan,” “expect,” “intend,” “estimate,” “anticipate”
and other phrases of similar meaning are forward-looking statements and contain uncertainty. In addition, from time to time, we
or our representatives have made or will make forward-looking statements orally or in writing. Furthermore, such forward-looking
statements may be included in various filings that we make with the SEC, or press releases or oral statements made by or with
the approval of one of our authorized executive officers. These forward-looking statements are subject to certain known and unknown
risks and uncertainties, as well as assumptions that could cause actual results to differ materially from those reflected in or
implied by these forward-looking statements. Factors that might cause actual results to differ include, among others, those set
forth under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results
of Operation” in our most recent Annual Report on Form 10-K, our subsequent Quarterly Reports on Form 10-Q, and in our future
filings made with the SEC. Readers are cautioned not to place undue reliance on any forward-looking statements contained in this
prospectus, any prospectus supplement, any related issuer free writing prospectus or any documents incorporated herein or therein,
which reflect management’s opinions only as of their respective dates. Except as required by law, we undertake no obligation
to revise or publicly release the results of any revisions to any forward-looking statements. You are advised, however, to consult
any additional disclosures we have made or will make in our reports filed with the SEC on Forms 10-K, 10-Q and 8-K. All subsequent
written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their
entirety by the cautionary statements contained in this prospectus, any prospectus supplement, any related issuer free writing
prospectus, or any documents incorporated herein or therein.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our ratio of earnings to fixed charges on a historical basis for each of the periods indicated. You
should read these ratios in connection with our consolidated financial statements, including the notes to those statements, incorporated
by reference in this prospectus.
|
|
|
Fiscal
Year Ended July 31,
|
|
|
Nine
Months Ended April 30,
|
|
|
(In
thousands, except ratios)
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
2014
|
|
|
2015
|
|
|
2016
|
|
|
Ratio of earnings to fixed charges
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Deficiency of earnings to
fixed charges
|
|
|
3,800
|
|
|
|
2,400
|
|
|
|
7,150
|
|
|
|
12,000
|
|
|
|
21,200
|
|
|
|
6,300
|
|
USE
OF PROCEEDS
Unless
otherwise indicated in the prospectus supplement, the net proceeds from the sale of securities offered by this prospectus will
be used for general corporate purposes and working capital requirements, which may include, among other things, the repayment
or repurchase of debt obligations and other capital expenditures. We may also use a portion of the net proceeds for licensing
or acquiring intellectual property or technologies to incorporate into our products and product candidates or our research and
development programs, capital expenditures, to fund possible investments in and acquisitions of complementary businesses or partnerships.
We have not determined the amounts we plan to spend on the areas listed above or the timing of these expenditures, and we have
no current plans with respect to acquisitions as of the date of this prospectus. As a result, unless otherwise indicated in the
prospectus supplement, our management will have broad discretion to allocate the net proceeds of the offerings. Pending their
ultimate use, we intend to invest the net proceeds in a variety of securities, including commercial paper, government and non-government
debt securities and/or money market funds that invest in such securities.
DIVIDEND
POLICY
We
have never paid cash dividends on our common stock. Moreover, we do not anticipate paying periodic cash dividends on our common
stock for the foreseeable future. We intend to use all available cash and liquid assets in the operation and growth of our business.
Any future determination about the payment of dividends will be made at the discretion of our board of directors and will depend
upon our earnings, if any, capital requirements, operating and financial conditions and on such other factors as our board of
directors deems relevant.
DESCRIPTION
OF CAPITAL STOCK
General
The
following summary of the material features of our capital stock does not purport to be complete and is subject to, and qualified
in its entirety by, the provisions of our articles of incorporation, as currently in effect, our amended and restated bylaws,
the Nevada Revised Statutes and other applicable law. For information on how to obtain copies of our articles of incorporation
and bylaws, which are exhibits to the registration statement of which this prospectus is a part, see “Where You Can Find
More Information.”
Pursuant
to our articles of incorporation, we are currently authorized to issue 160,000,000 shares of common stock, par value $0.0001 per
share. As of August 22 , 2016, there were 18,704,052 shares of our common stock outstanding.
Common
Stock
Voting
Rights
The
outstanding shares of our common stock are fully paid and non-assessable. Holders of our common stock are entitled to one vote,
in person or by proxy, for each share held of record on all matters submitted to a vote of the stockholders. Except as otherwise
provided by applicable law, holders of our common stock are not entitled to cumulative voting of their shares in elections of
directors.
Dividends
Subject
to the provisions of applicable law, including the Nevada Revised Statutes, the holders of shares of our common stock are entitled
to receive, when and as declared by the board of directors, dividends or other distributions (whether payable in cash, property,
or securities of OncoSec) out of the assets of OncoSec legally available for such dividends or other distributions.
Other
Rights
No
stockholder of OncoSec has any preemptive right under our articles of incorporation to subscribe for, purchase, or otherwise acquire
shares of any class or series of capital stock of OncoSec. The shares of our common stock are not subject to redemption by operation
of a sinking fund or otherwise. In the event of any liquidation, dissolution, or winding up of OncoSec, subject to the rights,
if any, of the holders of other classes of our capital stock, the holders of shares of our common stock are entitled to receive
any of our assets available for distribution to our stockholders ratably in proportion to the number of shares held by them.
Our
common stock is listed on the NASDAQ Capital Market under the symbol “ONCS”.
Liability
and Indemnification of Directors and Officers
The
Nevada Revised Statutes provide us with the power to indemnify any of our directors and officers. The director or officer must
have conducted himself/herself in good faith and reasonably believe that his/her conduct was in, or not opposed to, our best interests.
In a criminal action, the director or officer must not have had reasonable cause to believe his/her conduct was unlawful.
Under
applicable sections of the Nevada Revised Statutes, advances for expenses may be made by agreement if the director or officer
affirms in writing that he/she believes he/she has met the standards and will personally repay the expenses if it is determined
the officer or director did not meet the standards.
Our
bylaws include an indemnification provision under which we must indemnify any of our directors or officers, or any of our former
directors or officers, to the full extent permitted by law. We have also entered into indemnification agreements with each of
our directors and officers under which we must indemnify them to the full extent permitted by law. If Section 2115 of the California
Corporations Code is applicable to us, certain laws of California relating to the indemnification of directors, officer and others
also will govern.
At
present, there is no pending litigation or proceeding involving any of our directors or officers for which indemnification is
sought, nor are we aware of any threatened litigation that is likely to result in claims for indemnification. We also maintain
insurance policies that indemnify our directors and officers against various liabilities, including liabilities arising under
the Securities Act, which may be incurred by any director or officer in his or her capacity as such.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted for our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event a claim for indemnification against such liabilities (other than payment by us for expenses incurred or paid by a
director, officer or controlling person of ours in successful defense of any action, suit, or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction, the question of whether such
indemnification by it is against public policy in the Securities Act and will be governed by the final adjudication of such issue.
Anti-Takeover
Provisions of Nevada State Law
Some
features of the Nevada Revised Statutes, which are further described below, may have the effect of deterring third parties from
making takeover bids for control of us or may be used to hinder or delay a takeover bid. This would decrease the chance that our
stockholders would realize a premium over market price for their shares of common stock as a result of a takeover bid.
Acquisition
of Controlling Interest
The
Nevada Revised Statutes contain provisions governing acquisition of a controlling interest of a Nevada corporation. These provisions
provide generally that any person or entity that acquires a certain percentage of the outstanding voting shares of a Nevada corporation
may be denied voting rights with respect to the acquired shares, unless certain criteria are satisfied. Our Amended and Restated
Bylaws provide that these provisions will not apply to us or to any existing or future stockholder or stockholders.
Combination
with Interested Stockholder
The
Nevada Revised Statutes contain provisions governing the combination of a Nevada corporation that has 200 or more stockholders
of record with an interested stockholder. These provisions may have the effect of delaying or making it more difficult to affect
a change in control of our company.
A
corporation affected by these provisions may not engage in a combination within three years after the interested stockholder acquires
his, her or its shares unless the combination or purchase is approved by the board of directors before the interested stockholder
acquired such shares. Generally, if approval is not obtained, then after the expiration of the three-year period, the business
combination may be consummated with the approval of the board of directors before the person became an interested stockholder
or a majority of the voting power held by disinterested stockholders, or if the consideration to be received per share by disinterested
stockholders is at least equal to the highest of:
|
|
●
|
the
highest price per share paid by the interested stockholder within the three years immediately preceding the date of the announcement
of the combination or within three years immediately before, or in, the transaction in which he, she or it became an interested
stockholder, whichever is higher;
|
|
|
|
|
|
|
●
|
the
market value per share on the date of announcement of the combination or the date the person became an interested stockholder,
whichever is higher; or
|
|
|
|
|
|
|
●
|
if
higher for the holders of preferred stock, the highest liquidation value of the preferred stock, if any.
|
Generally,
these provisions define an interested stockholder as a person who is the beneficial owner, directly or indirectly of 10% or more
of the voting power of the outstanding voting shares of a corporation, and define combination to include any merger or consolidation
with an interested stockholder, or any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction
or a series of transactions with an interested stockholder of assets of the corporation having:
|
|
●
|
an
aggregate market value equal to 5% or more of the aggregate market value of the assets of the corporation;
|
|
|
|
|
|
|
●
|
an
aggregate market value equal to 5% or more of the aggregate market value of all outstanding shares of the corporation; or
|
|
|
|
|
|
|
●
|
representing
10% or more of the earning power or net income of the corporation.
|
Articles
of Incorporation and Bylaws
There
are no provisions in our articles of incorporation or our bylaws that would delay, defer or prevent a change in control of our
company and that would operate only with respect to an extraordinary corporate transaction involving our company or any of our
subsidiaries, such as merger, reorganization, tender offer, sale or transfer of substantially all of its assets, or liquidation.
Transfer
Agent
The
transfer agent for our common stock is Nevada Agency and Transfer Company. The transfer agent’s address is 50 West Liberty
Street, Suite 880, Reno, Nevada 89501.
DESCRIPTION
OF WARRANTS
General
We
may issue warrants for the purchase of our debt securities or common stock, or any combination thereof. Warrants may be issued
independently or together with any other security offered hereby and may be attached to or separate from any offered securities.
The warrants may be issued under a warrant agreement that we enter into with a warrant agent, all as shall be set forth in a prospectus
supplement relating to the particular series of warrants being offered pursuant to this prospectus and such prospectus supplement.
This summary of certain provisions of the warrants is not complete. For the terms of a particular series of warrants, you should
refer to the prospectus supplement for that series of warrants and the warrant agreement for that particular series.
Debt
Warrants
The
prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the terms of the debt
warrants, including the following:
|
|
●
|
the
title of the debt warrants;
|
|
|
|
|
|
|
●
|
the
offering price for the debt warrants, if any;
|
|
|
|
|
|
|
●
|
the
aggregate number of the debt warrants;
|
|
|
|
|
|
|
●
|
the
designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt warrants;
|
|
|
|
|
|
|
●
|
if
applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately transferable;
|
|
|
|
|
|
|
●
|
the
principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants,
which may be payable in cash, securities or other property;
|
|
|
|
|
|
|
●
|
the
dates on which the right to exercise the debt warrants will commence and expire;
|
|
|
|
|
|
|
●
|
if
applicable, the minimum or maximum amount of the debt warrants that may be exercised at any one time;
|
|
|
|
|
|
|
●
|
whether
the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon exercise of the
debt warrants will be issued in registered or bearer form;
|
|
|
|
|
|
|
●
|
information
with respect to book-entry procedures, if any; the currency or currency units in which the offering price, if any, and the
exercise price are payable;
|
|
|
|
|
|
|
●
|
if
applicable, a discussion of material U.S. federal income tax considerations;
|
|
|
|
|
|
|
●
|
the
antidilution provisions of the debt warrants, if any;
|
|
|
|
|
|
|
●
|
the
redemption or call provisions, if any, applicable to the debt warrants;
|
|
|
|
|
|
|
●
|
any
provisions with respect to the holder’s right to require us to repurchase the warrants upon a change in control or similar
event; and
|
|
|
|
|
|
|
●
|
any
additional terms of the debt warrants, including procedures, and limitations relating to the exchange, exercise and settlement
of the debt warrants.
|
Debt
warrant certificates will be exchangeable for new debt warrant certificates of different denominations. Debt warrants may be exercised
at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise
of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable
upon exercise and will not be entitled to payment of principal or any premium, if any, or interest on the debt securities purchasable
upon exercise.
Equity
Warrants
The
prospectus supplement relating to a particular series of warrants to purchase our common stock will describe the terms of the
warrants, including the following:
|
|
●
|
the
title of the warrants;
|
|
|
|
|
|
|
●
|
the
offering price for the warrants, if any;
|
|
|
|
|
|
|
●
|
the
aggregate number of warrants;
|
|
|
|
|
|
|
●
|
the
designation and terms of the common stock that may be purchased upon exercise of the warrants;
|
|
|
|
|
|
|
●
|
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each security;
|
|
|
|
|
|
|
●
|
if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
|
|
|
|
|
|
|
●
|
the
number of shares of common stock that may be purchased upon exercise of a warrant and the exercise price for the warrants;
|
|
|
|
|
|
|
●
|
the
dates on which the right to exercise the warrants shall commence and expire;
|
|
|
|
|
|
|
●
|
if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
|
|
|
|
|
|
|
●
|
the
currency or currency units in which the offering price, if any, and the exercise price are payable;
|
|
|
|
|
|
|
●
|
if
applicable, a discussion of material U.S. federal income tax considerations;
|
|
|
|
|
|
|
●
|
the
antidilution provisions of the warrants, if any;
|
|
|
|
|
|
|
●
|
the
redemption or call provisions, if any, applicable to the warrants;
|
|
|
|
|
|
|
●
|
any
provisions with respect to the holder’s right to require us to repurchase the warrants upon a change in control or similar
event; and
|
|
|
|
|
|
|
●
|
any
additional terms of the warrants, including procedures, and limitations relating to the exchange, exercise and settlement
of the warrants.
|
Holders
of equity warrants will not be entitled:
|
|
●
|
to
vote, consent or receive dividends;
|
|
|
|
|
|
|
●
|
receive
notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter;
or
|
|
|
|
|
|
|
●
|
exercise
any rights as stockholders of us.
|
DESCRIPTION
OF DEBT SECURITIES
The
debt securities may be either secured or unsecured and will either be our senior debt securities or our subordinated debt securities.
The debt securities will be issued under one or more separate indentures between us and a trustee to be specified in an accompanying
prospectus supplement. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be
issued under a subordinated indenture. Together, the senior indenture and the subordinated indenture are called indentures in
this description. This prospectus, together with the applicable prospectus supplement, will describe the terms of a particular
series of debt securities.
The
following is a summary of selected provisions and definitions of the indentures and debt securities to which any prospectus supplement
may relate. The summary of selected provisions of the indentures and the debt securities appearing below is not complete and is
subject to, and qualified entirely by reference to, all of the provisions of the applicable indenture and certificates evidencing
the applicable debt securities. For additional information, you should look at the applicable indenture and the certificate evidencing
the applicable debt security that is filed as an exhibit to the registration statement that includes the prospectus. In this description
of the debt securities, the words “OncoSec,” “we,” “us,” or “our” refer only to
OncoSec Medical Incorporated and not to any of our subsidiaries, unless we expressly state or the context otherwise requires.
The
following description sets forth selected general terms and provisions of the applicable indenture and debt securities to which
any prospectus supplement may relate. Other specific terms of the applicable indenture and debt securities will be described in
the applicable prospectus supplement. If any particular terms of the indenture or debt securities described in a prospectus supplement
differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus
supplement.
General
Debt
securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate
principal amount for the debt securities of any series.
We
are not limited as to the amount of debt securities we may issue under the indentures. Unless otherwise provided in a prospectus
supplement, a series of debt securities may be reopened to issue additional debt securities of such series.
The
prospectus supplement relating to a particular series of debt securities will set forth:
|
|
●
|
whether
the debt securities are senior or subordinated;
|
|
|
|
|
|
|
●
|
the
offering price;
|
|
|
|
|
|
|
●
|
the
title;
|
|
|
|
|
|
|
●
|
any
limit on the aggregate principal amount;
|
|
|
|
|
|
|
●
|
the
person who shall be entitled to receive interest, if other than the record holder on the record date;
|
|
|
|
|
|
|
●
|
the
date or dates the principal will be payable;
|
|
|
|
|
|
|
●
|
the
interest rate or rates, which may be fixed or variable, if any, the date from which interest will accrue, the interest payment
dates and the regular record dates, or the method for calculating the dates and rates;
|
|
|
|
|
|
|
●
|
the
place where payments may be made;
|
|
|
●
|
any
mandatory or optional redemption provisions or sinking fund provisions and any applicable redemption or purchase prices associated
with these provisions;
|
|
|
|
|
|
|
●
|
if
issued other than in denominations of U.S. $1,000 or any multiple of U.S. $1,000, the denominations in which the debt securities
shall be issuable;
|
|
|
|
|
|
|
●
|
if
applicable, the method for determining how the principal, premium, if any, or interest will be calculated by reference to
an index or formula;
|
|
|
|
|
|
|
●
|
if
other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable
and whether we or a holder may elect payment to be made in a different currency;
|
|
|
|
|
|
|
●
|
the
portion of the principal amount that will be payable upon acceleration of maturity, if other than the entire principal amount;
|
|
|
|
|
|
|
●
|
if
the principal amount payable at stated maturity will not be determinable as of any date prior to stated maturity, the amount
or method for determining the amount which will be deemed to be the principal amount;
|
|
|
|
|
|
|
●
|
if
applicable, whether the debt securities shall be subject to the defeasance provisions described below under “Satisfaction
and discharge; defeasance” or such other defeasance provisions specified in the applicable prospectus supplement for
the debt securities;
|
|
|
|
|
|
|
●
|
any
conversion or exchange provisions;
|
|
|
|
|
|
|
●
|
whether
the debt securities will be issuable in the form of a global security;
|
|
|
|
|
|
|
●
|
any
subordination provisions applicable to the subordinated debt securities if different from those described below under “Subordinated
debt securities;”
|
|
|
|
|
|
|
●
|
any
paying agents, authenticating agents, security registrars or other agents for the debt securities, if other than the trustee;
|
|
|
|
|
|
|
●
|
any
provisions relating to any security provided for the debt securities, including any provisions regarding the circumstances
under which collateral may be released or substituted;
|
|
|
|
|
|
|
●
|
any
deletions of, or changes or additions to, the events of default, acceleration provisions or covenants;
|
|
|
|
|
|
|
●
|
any
provisions relating to guaranties for the securities and any circumstances under which there may be additional obligors;
|
|
|
|
|
|
|
●
|
the
terms, if any, upon which such debt securities are to be issuable upon the exercise of warrants, units or rights; and
|
|
|
|
|
|
|
●
|
any
other specific terms of such debt securities.
|
Unless
otherwise specified in the prospectus supplement, the debt securities will be registered debt securities. Debt securities may
be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at time
of issuance is below market rates. The U.S. federal income tax considerations applicable to debt securities sold at a discount
will be described in the applicable prospectus supplement.
Exchange
and Transfer
Debt
securities may be transferred or exchanged at the office of the security registrar or at the office of any transfer agent designated
by us.
We
will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other governmental
charges associated with any transfer or exchange.
In
the event of any partial redemption of debt securities of any series, we will not be required to:
|
|
●
|
issue,
register the transfer of, or exchange, any debt security of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption and ending at the close of business on the day of the mailing;
or
|
|
|
|
|
|
|
●
|
register
the transfer of or exchange any debt security of that series selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part.
|
We
will appoint the trustee as the initial security registrar. Any transfer agent, in addition to the security registrar initially
designated by us, will be named in the prospectus supplement. We may designate additional transfer agents or change transfer agents
or change the office of the transfer agent. However, we will be required to maintain a transfer agent in each place of payment
for the debt securities of each series.
Global
Securities
The
debt securities of any series may be represented, in whole or in part, by one or more global securities. Each global security
will:
|
|
●
|
be
registered in the name of a depositary, or its nominee, that we will identify in a prospectus supplement;
|
|
|
|
|
|
|
●
|
be
deposited with the depositary or nominee or custodian; and
|
|
|
|
|
|
|
●
|
bear
any required legends.
|
No
global security may be exchanged in whole or in part for debt securities registered in the name of any person other than the depositary
or any nominee unless:
|
|
●
|
the
depositary has notified us that it is unwilling or unable to continue as depositary or has ceased to be qualified to act as
depositary;
|
|
|
|
|
|
|
●
|
an
event of default is continuing with respect to the debt securities of the applicable series; or
|
|
|
|
|
|
|
●
|
any
other circumstance described in a prospectus supplement has occurred permitting or requiring the issuance of any such security.
|
As
long as the depositary, or its nominee, is the registered owner of a global security, the depositary or nominee will be considered
the sole owner and holder of the debt securities represented by the global security for all purposes under the indentures. Except
in the above limited circumstances, owners of beneficial interests in a global security will not be:
|
|
●
|
entitled
to have the debt securities registered in their names;
|
|
|
|
|
|
|
●
|
entitled
to physical delivery of certificated debt securities; or
|
|
|
|
|
|
|
●
|
considered
to be holders of those debt securities under the indenture.
|
Payments
on a global security will be made to the depositary or its nominee as the holder of the global security. Some jurisdictions have
laws that require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws
may impair the ability to transfer beneficial interests in a global security.
Institutions
that have accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests
in a global security will be limited to participants and to persons that may hold beneficial interests through participants. The
depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities
represented by the global security to the accounts of its participants.
Ownership
of beneficial interests in a global security will be shown on and effected through records maintained by the depositary, with
respect to participants’ interests, or any participant, with respect to interests of persons held by participants on their
behalf.
Payments,
transfers and exchanges relating to beneficial interests in a global security will be subject to policies and procedures of the
depositary. The depositary policies and procedures may change from time to time. Neither any trustee nor we will have any responsibility
or liability for the depositary’s or any participant’s records with respect to beneficial interests in a global security.
Payment
and Paying Agents
Unless
otherwise indicated in a prospectus supplement, the provisions described in this paragraph will apply to the debt securities.
Payment of interest on a debt security on any interest payment date will be made to the person in whose name the debt security
is registered at the close of business on the regular record date. Payment on debt securities of a particular series will be payable
at the office of a paying agent or paying agents designated by us. However, at our option, we may pay interest by mailing a check
to the record holder. The trustee will be designated as our initial paying agent.
We
may also name any other paying agents in a prospectus supplement. We may designate additional paying agents, change paying agents
or change the office of any paying agent. However, we will be required to maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
moneys paid by us to a paying agent for payment on any debt security that remain unclaimed for a period ending the earlier of:
|
|
●
|
10
business days prior to the date the money would be turned over to the applicable state; or
|
|
|
|
|
|
|
●
|
at
the end of two years after such payment was due,
|
will
be repaid to us thereafter. The holder may look only to us for such payment.
No
Protection in the Event of a Change of Control
Unless
otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will
not contain any provisions that may afford holders of the debt securities protection in the event we have a change in control
or in the event of a highly leveraged transaction, whether or not such transaction results in a change in control.
Covenants
Unless
otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will
not contain any financial or restrictive covenants.
Consolidation,
Merger and Sale of Assets
Unless
we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, we may not consolidate
with or merge into any other person (other than a subsidiary of us), in a transaction in which we are not the surviving corporation,
or convey, transfer or lease our properties and assets substantially as an entirety to, any person (other than a subsidiary of
us), unless:
|
|
●
|
the
successor entity, if any, is a U.S. corporation, limited liability company, partnership, trust or other business entity;
|
|
|
|
|
|
|
●
|
the
successor entity assumes our obligations on the debt securities and under the indentures;
|
|
|
|
|
|
|
●
|
immediately
after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and
|
|
|
|
|
|
|
●
|
certain
other conditions specified in the indenture are met.
|
Events
of Default
Unless
we indicate otherwise in a prospectus supplement, the following will be events of default for any series of debt securities under
the indentures:
|
|
(i)
|
we
fail to pay principal of or any premium on any debt security of that series when due;
|
|
|
|
|
|
|
(ii)
|
we
fail to pay any interest on any debt security of that series for 60 days after it becomes due;
|
|
|
|
|
|
|
(iii)
|
we
fail to deposit any sinking fund payment when due;
|
|
|
|
|
|
|
(iv)
|
we
fail to perform any other covenant in the indenture and such failure continues for 90 days after we are given the notice required
in the indentures; and
|
|
|
|
|
|
|
(v)
|
certain
events involving our bankruptcy, insolvency or reorganization.
|
Additional
or different events of default applicable to a series of debt securities may be described in a prospectus supplement. An event
of default of one series of debt securities is not necessarily an event of default for any other series of debt securities.
The
trustee may withhold notice to the holders of any default, except defaults in the payment of principal, premium, if any, interest,
any sinking fund installment on, or with respect to any conversion right of, the debt securities of such series. However, the
trustee must consider it to be in the interest of the holders of the debt securities of such series to withhold this notice.
Unless
we indicate otherwise in a prospectus supplement, if an event of default, other than an event of default described in clause (v)
above, shall occur and be continuing with respect to any series of debt securities, either the trustee or the holders of at least
a 25 percent in aggregate principal amount of the outstanding securities of that series may declare the principal amount and premium,
if any, of the debt securities of that series, or if any debt securities of that series are original issue discount securities,
such other amount as may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid interest,
if any, thereon, to be due and payable immediately.
Unless
we indicate otherwise in a prospectus supplement, if an event of default described in clause (v) above shall occur, the principal
amount and premium, if any, of all the debt securities of that series, or if any debt securities of that series are original issue
discount securities, such other amount as may be specified in the applicable prospectus supplement, in each case together with
accrued and unpaid interest, if any, thereon, will automatically become immediately due and payable. Any payment by us on the
subordinated debt securities following any such acceleration will be subject to the subordination provisions described below under
“Subordinated debt securities.”
Notwithstanding
the foregoing, each indenture will provide that we may, at our option, elect that the sole remedy for an event of default relating
to our failure to comply with our obligations described under the section entitled “Reports” below or our failure
to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act will for the first 180 days after the occurrence
of such an event of default consist exclusively of the right to receive additional interest on the relevant series of debt securities
at an annual rate equal to (i) 0.25% of the principal amount of such series of debt securities for the first 90 days after the
occurrence of such event of default and (ii) 0.50% of the principal amount of such series of debt securities from the 91st day
to, and including, the 180th day after the occurrence of such event of default, which we call “additional interest.”
If we so elect, the additional interest will accrue on all outstanding debt securities from and including the date on which such
event of default first occurs until such violation is cured or waived and shall be payable on each relevant interest payment date
to holders of record on the regular record date immediately preceding the interest payment date. On the 181st day after such event
of default (if such violation is not cured or waived prior to such 181st day), the debt securities will be subject to acceleration
as provided above. In the event we do not elect to pay additional interest upon any such event of default in accordance with this
paragraph, the debt securities will be subject to acceleration as provided above.
In
order to elect to pay the additional interest as the sole remedy during the first 180 days after the occurrence of any event of
default relating to the failure to comply with the reporting obligations in accordance with the preceding paragraph, we must notify
all holders of debt securities and the trustee and paying agent of such election prior to the close of business on the first business
day following the date on which such event of default occurs. Upon our failure to timely give such notice or pay the additional
interest, the debt securities will be immediately subject to acceleration as provided above.
After
acceleration, the holders of a majority in aggregate principal amount of the outstanding securities of that series may, under
certain circumstances, rescind and annul such acceleration if all events of default, other than the non-payment of accelerated
principal, or other specified amounts or interest, have been cured or waived.
Other
than the duty to act with the required care during an event of default, the trustee will not be obligated to exercise any of its
rights or powers at the request of the holders unless the holders shall have offered to the trustee reasonable indemnity. Generally,
the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust
or power conferred on the trustee.
A
holder of debt securities of any series will not have any right to institute any proceeding under the indentures, or for the appointment
of a receiver or a trustee, or for any other remedy under the indentures, unless:
|
|
(i)
|
the
holder has previously given to the trustee written notice of a continuing event of default with respect to the debt securities
of that series;
|
|
|
|
|
|
|
(ii)
|
the
holders of at least 25 percent in aggregate principal amount of the outstanding debt securities of that series have made a
written request and have offered reasonable indemnity to the trustee to institute the proceeding; and
|
|
|
|
|
|
|
(iii)
|
the
trustee has failed to institute the proceeding and has not received direction inconsistent with the original request from
the holders of a majority in aggregate principal amount of the outstanding debt securities of that series within 60 days after
the original request.
|
Holders
may, however, sue to enforce the payment of principal, premium or interest on any debt security on or after the due date or to
enforce the right, if any, to convert any debt security (if the debt security is convertible) without following the procedures
listed in (i) through (iii) above.
We
will furnish the trustee an annual statement from our officers as to whether or not we are in default in the performance of the
conditions and covenants under the indenture and, if so, specifying all known defaults.
Modification
and Waiver
Unless
we indicate otherwise in a prospectus supplement, the applicable trustee and we may make modifications and amendments to an indenture
with the consent of the holders of a majority in aggregate principal amount of the outstanding securities of each series affected
by the modification or amendment.
We
may also make modifications and amendments to the indentures for the benefit of holders without their consent, for certain purposes
including, but not limited to:
|
|
●
|
providing
for our successor to assume the covenants under the indenture;
|
|
|
|
|
|
|
●
|
adding
covenants or events of default;
|
|
|
|
|
|
|
●
|
making
certain changes to facilitate the issuance of the securities;
|
|
|
|
|
|
|
●
|
securing
the securities;
|
|
|
|
|
|
|
●
|
providing
for a successor trustee or additional trustees;
|
|
|
|
|
|
|
●
|
curing
any ambiguities or inconsistencies;
|
|
|
|
|
|
|
●
|
providing
for guaranties of, or additional obligors on, the securities;
|
|
|
|
|
|
|
●
|
permitting
or facilitating the defeasance and discharge of the securities; and
|
|
|
|
|
|
|
●
|
other
changes specified in the indenture.
|
However,
neither the trustee nor we may make any modification or amendment without the consent of the holder of each outstanding security
of that series affected by the modification or amendment if such modification or amendment would:
|
|
●
|
change
the stated maturity of any debt security;
|
|
|
|
|
|
|
●
|
reduce
the principal, premium, if any, or interest on any debt security or any amount payable upon redemption or repurchase, whether
at our option or the option of any holder, or reduce the amount of any sinking fund payments;
|
|
|
|
|
|
|
●
|
reduce
the principal of an original issue discount security or any other debt security payable on acceleration of maturity;
|
|
|
|
|
|
|
●
|
change
the place of payment or the currency in which any debt security is payable;
|
|
|
|
|
|
|
●
|
impair
the right to enforce any payment after the stated maturity or redemption date;
|
|
|
|
|
|
|
●
|
if
subordinated debt securities, modify the subordination provisions in a materially adverse manner to the holders;
|
|
|
|
|
|
|
●
|
adversely
affect the right to convert any debt security if the debt security is a convertible debt security; or
|
|
|
|
|
|
|
●
|
change
the provisions in the indenture that relate to modifying or amending the indenture.
|
Satisfaction
and Discharge; Defeasance
We
may be discharged from our obligations on the debt securities, subject to limited exceptions, of any series that have matured
or will mature or be redeemed within one year if we deposit enough money with the trustee to pay all the principal, interest and
any premium due to the stated maturity date or redemption date of the debt securities.
Each
indenture contains a provision that permits us to elect either or both of the following:
|
|
●
|
we
may elect to be discharged from all of our obligations, subject to limited exceptions, with respect to any series of debt
securities then outstanding. If we make this election, the holders of the debt securities of the series will not be entitled
to the benefits of the indenture, except for the rights of holders to receive payments on debt securities or the registration
of transfer and exchange of debt securities and replacement of lost, stolen or mutilated debt securities.
|
|
|
|
|
|
|
●
|
we
may elect to be released from our obligations under some or all of any financial or restrictive covenants applicable to the
series of debt securities to which the election relates and from the consequences of an event of default resulting from a
breach of those covenants.
|
To
make either of the above elections, we must irrevocably deposit in trust with the trustee enough money to pay in full the principal,
interest and premium on the debt securities. This amount may be made in cash and/or U.S. government obligations or, in the case
of debt securities denominated in a currency other than U.S. dollars, cash in the currency in which such series of securities
is denominated and/or foreign government obligations. As a condition to either of the above elections, for debt securities denominated
in U.S. dollars we must deliver to the trustee an opinion of counsel that the holders of the debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the action.
With
respect to debt securities of any series that are denominated in a currency other than United States dollars, “foreign government
obligations” means:
|
|
●
|
direct
obligations of the government that issued or caused to be issued the currency in which such securities are denominated and
for the payment of which obligations its full faith and credit is pledged, or, with respect to debt securities of any series
which are denominated in Euros, direct obligations of certain members of the European Union for the payment of which obligations
the full faith and credit of such members is pledged, which in each case are not callable or redeemable at the option of the
issuer thereof; or
|
|
|
|
|
|
|
●
|
obligations
of a person controlled or supervised by or acting as an agency or instrumentality of a government described in the bullet
above the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government,
which are not callable or redeemable at the option of the issuer thereof.
|
Reports
The
indentures provide that any reports or documents that we file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act
will be filed with the trustee within 15 days after the same is filed with the SEC. Documents filed by us with the SEC via the
EDGAR system will be deemed filed with the trustee as of the time such documents are filed with the SEC.
Notices
Notices
to holders will be given by mail to the addresses of the holders in the security register.
Governing
Law
The
indentures and the debt securities will be governed by, and construed under, the laws of the State of New York.
No
Personal Liability of Directors, Officers, Employees and Stockholders
No
incorporator, stockholder, employee, agent, officer, director or subsidiary of ours will have any liability for any obligations
of ours, or because of the creation of any indebtedness under the debt securities, the indentures or supplemental indentures.
The indentures provide that all such liability is expressly waived and released as a condition of, and as a consideration for,
the execution of such indentures and the issuance of the debt securities.
Regarding
the Trustee
The
indentures limit the right of the trustee, should it become our creditor, to obtain payment of claims or secure its claims.
The
trustee will be permitted to engage in certain other transactions with us. However, if the trustee acquires any conflicting interest,
and there is a default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict
or resign.
Subordinated
Debt Securities
The
following provisions will be applicable with respect to each series of subordinated debt securities, unless otherwise stated in
the prospectus supplement relating to that series of subordinated debt securities.
The
indebtedness evidenced by the subordinated debt securities of any series is subordinated, to the extent provided in the subordinated
indenture and the applicable prospectus supplement, to the prior payment in full, in cash or other payment satisfactory to the
holders of senior debt, of all senior debt, including any senior debt securities.
Upon
any distribution of our assets upon any dissolution, winding up, liquidation or reorganization, whether voluntary or involuntary,
marshalling of assets, assignment for the benefit of creditors, or in bankruptcy, insolvency, receivership or other similar proceedings,
payments on the subordinated debt securities will be subordinated in right of payment to the prior payment in full in cash or
other payment satisfactory to holders of senior debt of all senior debt.
In
the event of any acceleration of the subordinated debt securities of any series because of an event of default with respect to
the subordinated debt securities of that series, holders of any senior debt would be entitled to payment in full in cash or other
payment satisfactory to holders of senior debt of all senior debt before the holders of subordinated debt securities are entitled
to receive any payment or distribution.
In
addition, the subordinated debt securities will be structurally subordinated to all indebtedness and other liabilities of our
subsidiaries, including trade payables and lease obligations. This occurs because our right to receive any assets of our subsidiaries
upon their liquidation or reorganization, and your right to participate in those assets, will be effectively subordinated to the
claims of that subsidiary’s creditors, including trade creditors, except to the extent that we are recognized as a creditor
of such subsidiary. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security
interest in the assets of the subsidiary and any indebtedness of the subsidiary senior to us.
We
are required to promptly notify holders of senior debt or their representatives under the subordinated indenture if payment of
the subordinated debt securities is accelerated because of an event of default.
Under
the subordinated indenture, we may also not make payment on the subordinated debt securities if:
|
|
●
|
a
default in our obligations to pay principal, premium, if any, interest or other amounts on our senior debt occurs and the
default continues beyond any applicable grace period, which we refer to as a payment default; or
|
|
|
|
|
|
|
●
|
any
other default occurs and is continuing with respect to designated senior debt that permits holders of designated senior debt
to accelerate its maturity, which we refer to as a non-payment default, and the trustee receives a payment blockage notice
from us or some other person permitted to give the notice under the subordinated indenture.
|
We
will resume payments on the subordinated debt securities:
|
|
●
|
in
case of a payment default, when the default is cured or waived or ceases to exist, and
|
|
|
|
|
|
|
●
|
in
case of a nonpayment default, the earlier of when the default is cured or waived or ceases to exist or 179 days after the
receipt of the payment blockage notice.
|
No
new payment blockage period may commence on the basis of a nonpayment default unless 365 days have elapsed from the effectiveness
of the immediately prior payment blockage notice. No nonpayment default that existed or was continuing on the date of delivery
of any payment blockage notice to the trustee shall be the basis for a subsequent payment blockage notice.
As
a result of these subordination provisions, in the event of our bankruptcy, dissolution or reorganization, holders of senior debt
may receive more, ratably, and holders of the subordinated debt securities may receive less, ratably, than our other creditors.
The subordination provisions will not prevent the occurrence of any event of default under the subordinated indenture.
The
subordination provisions will not apply to payments from money or government obligations held in trust by the trustee for the
payment of principal, interest and premium, if any, on subordinated debt securities pursuant to the provisions described under
the section entitled “Satisfaction and discharge; defeasance,” if the subordination provisions were not violated at
the time the money or government obligations were deposited into trust.
If
the trustee or any holder receives any payment that should not have been made to them in contravention of subordination provisions
before all senior debt is paid in full in cash or other payment satisfactory to holders of senior debt, then such payment will
be held in trust for the holders of senior debt.
Senior
debt securities will constitute senior debt under the subordinated indenture.
Additional
or different subordination provisions may be described in a prospectus supplement relating to a particular series of debt securities.
Definitions
For
purposes of this description of debt securities, the following definitions shall apply:
“Designated
senior debt” means our obligations under any particular senior debt in which the instrument creating or evidencing the same
or the assumption or guarantee thereof, or related agreements or documents to which we are a party, expressly provides that such
indebtedness shall be designated senior debt for purposes of the subordinated indenture. The instrument, agreement or other document
evidencing any designated senior debt may place limitations and conditions on the right of such senior debt to exercise the rights
of designated senior debt.
“Indebtedness”
means the following, whether absolute or contingent, secured or unsecured, due or to become due, outstanding on the date of the
indenture for such series of securities or thereafter created, incurred or assumed:
|
|
●
|
our
indebtedness evidenced by a credit or loan agreement, note, bond, debenture or other written obligation;
|
|
|
|
|
|
|
●
|
all
of our obligations for money borrowed;
|
|
|
|
|
|
|
●
|
all
of our obligations evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties
or assets of any kind;
|
|
|
●
|
our
obligations:
|
|
|
|
|
|
|
●
|
as
lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles,
or
|
|
|
|
|
|
|
●
|
as
lessee under leases for facilities, capital equipment or related assets, whether or not capitalized, entered into or leased
for financing purposes;
|
|
|
|
|
|
|
●
|
all
of our obligations under interest rate and currency swaps, caps, floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements;
|
|
|
|
|
|
|
●
|
all
of our obligations with respect to letters of credit, bankers’ acceptances and similar facilities, including reimbursement
obligations with respect to the foregoing;
|
|
|
|
|
|
|
●
|
all
of our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business;
|
|
|
|
|
|
|
●
|
all
obligations of the type referred to in the above clauses of another person, the payment of which, in either case, we have
assumed or guaranteed, for which we are responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor
or otherwise, or which are secured by a lien on our property; and
|
|
|
|
|
|
|
●
|
renewals,
extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation issued in exchange
for, any such indebtedness or obligation described in the above clauses of this definition.
|
“Senior
debt” means the principal of, premium, if any, and interest, including all interest accruing subsequent to the commencement
of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such
proceeding, and rent payable on or in connection with, and all fees and other amounts payable in connection with, our indebtedness.
However, senior debt shall not include:
|
|
●
|
any
debt or obligation if its terms or the terms of the instrument under which or pursuant to which it is issued expressly provide
that it shall not be senior in right of payment to the subordinated debt securities or expressly provide that such indebtedness
is on the same basis or “junior” to the subordinated debt securities; or
|
|
|
|
|
|
|
●
|
debt
to any of our subsidiaries, a majority of the voting stock of which is owned, directly or indirectly, by us.
|
“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by us or by one or
more or our other subsidiaries or by a combination of us and our other subsidiaries. For purposes of this definition, “voting
stock” means stock or other similar interests which ordinarily has or have voting power for the election of directors, or
persons performing similar functions, whether at all times or only so long as no senior class of stock or other interests has
or have such voting power by reason of any contingency.
DESCRIPTION
OF RIGHTS
We
may issue rights to purchase our common stock, debt securities or other securities, or any combination thereof. These rights may
be issued independently or together with any other security offered hereby and may or may not be transferable by the stockholder
receiving the rights. In connection with any offering of rights, we may enter into a standby arrangement with one or more underwriters
or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement, which we will enter into with a bank or trust company, as rights
agent, all of which will be set forth in the relevant offering material. The rights agent will act solely as our agent in connection
with the certificates relating to the rights and will not assume any obligation or relationship of agency or trust with any holders
of rights certificates or beneficial owners of rights.
The
following description is a summary of selected provisions relating to rights to which any prospectus supplement may relate, all
as shall be set forth in a prospectus supplement relating to the particular rights being offered pursuant to this prospectus and
such prospectus supplement. This summary of certain provisions of the rights is not complete. For the terms of the particular
rights being offered, you should refer to the prospectus supplement and the rights certificate and agreement for those rights.
General
The
prospectus supplement relating to rights being offered will describe the terms of the rights, including the following:
|
|
●
|
in
the case of a distribution of rights to our stockholders, the date of determining the stockholders entitled to the rights
distribution;
|
|
|
|
|
|
|
●
|
in
the case of a distribution of rights to our stockholders, the number of rights issued or to be issued to each stockholder;
|
|
|
|
|
|
|
●
|
the
exercise price payable for each share of debt securities, common stock or other securities upon the exercise of the rights;
|
|
|
|
|
|
|
●
|
the
number and terms of the shares of debt securities, common stock or other securities which may be purchased pursuant to each
right;
|
|
|
|
|
|
|
●
|
the
extent to which the rights are transferable;
|
|
|
|
|
|
|
●
|
the
date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire;
|
|
|
|
|
|
|
●
|
the
extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities;
|
|
|
|
|
|
|
●
|
if
applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the
offering of such rights; and
|
|
|
|
|
|
|
●
|
any
other terms of the rights, including, among other things, the terms, procedures, conditions and limitations relating to the
exchange and exercise of the rights.
|
The
provisions described in this section, as well as those described under “Description of Capital Stock” and “Description
of Debt Securities,” will apply, as applicable, to any rights we may offer.
DESCRIPTION
OF UNITS
We
may issue units composed of any combination of our common stock, warrants and debt securities. We will issue each unit so that
the holder of the unit is also the holder of each security included in the unit. As a result, the holder of a unit will have the
rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The
following description is a summary of selected provisions relating to units to which any prospectus supplement may relate, all
as shall be set forth in a prospectus supplement relating to the particular units being offered pursuant to this prospectus and
such prospectus supplement. This summary of certain provisions of the units is not complete. For the terms of the particular units
being offered, you should refer to the prospectus supplement and the units certificate and agreement for those units.
General
The
prospectus supplement relating to units being offered will describe the terms of the rights, including the following:
|
|
●
|
the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
|
|
|
|
|
|
|
●
|
any
provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing the units;
|
|
|
|
|
|
|
●
|
whether
the units will be issued in fully registered or global form; and
|
|
|
|
|
|
|
●
|
any
other terms of the units.
|
The
applicable provisions described in this section, as well as those described under “Description of Capital Stock,”
“Description of Warrants” and “Description of Debt Securities,” will apply to each unit and to each security
included in each unit, respectively.
PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers,
including our affiliates, (iii) through agents, (iv) through a rights offering, or (v) through a combination of any these methods.
The distribution of securities may be effected, from time to time, in one or more transactions, including:
|
|
●
|
block
transactions (which may involve crosses) and transactions on the NASDAQ Capital Market or any other organized market where
the securities may be traded;
|
|
|
|
|
|
|
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement;
|
|
|
|
|
|
|
●
|
ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers;
|
|
|
|
|
|
|
●
|
sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise;
and
|
|
|
|
|
|
|
●
|
sales
in other ways not involving market makers or established trading markets, including direct sales to purchasers.
|
The
securities may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale,
prices related to the prevailing market prices, or negotiated prices. The consideration may be cash or another form negotiated
by the parties. Non-cash consideration may consist of services or products, whether tangible or intangible, and including services
or products we may use in our business; outstanding debt or equity securities of our company or one or more of its subsidiaries;
debt or equity securities or assets of other companies, including in connection with investments, joint ventures or other strategic
transactions, or acquisitions; release of claims or settlement of disputes; and satisfaction of obligations, including obligations
to make payment of interest on outstanding obligations. We may sell the securities as part of a transaction in which outstanding
debt or equity securities of our company are surrendered, converted, exercised, canceled or transferred.
We
will describe the terms of any offering of the securities registered hereunder in a prospectus supplement, information incorporated
by reference or free writing prospectus, which will include the following information:
|
|
●
|
the
terms of the offering;
|
|
|
|
|
|
|
●
|
the
names of any underwriters or agents;
|
|
|
|
|
|
|
●
|
the
name or names of any managing underwriter or underwriters;
|
|
|
|
|
|
|
●
|
the
purchase price of the securities;
|
|
|
|
|
|
|
●
|
the
net proceeds from the sale of the securities;
|
|
|
|
|
|
|
●
|
any
delayed delivery arrangements;
|
|
|
|
|
|
|
●
|
any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
|
|
|
|
|
|
|
●
|
any
initial public offering price;
|
|
|
|
|
|
|
●
|
any
discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
|
|
|
|
●
|
any
commissions paid to agents.
|
Sale
through Underwriters or Dealers
Only
underwriters we name in a prospectus supplement, information incorporated by reference or free writing prospectus are underwriters
of the securities offered thereby. If underwriters are used in the sale, the underwriters will acquire the securities for their
own account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters may
resell the securities from time to time in one or more transactions, including negotiated transactions. Underwriters may sell
the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise),
including other public or private transactions and short sales. Underwriters may offer securities to the public either through
underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters.
Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be
subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase
any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals.
They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of the transaction.
Direct
Sales and Sales through Agents
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved
in the offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its
appointment.
We
may also make direct sales through subscription rights distributed to our existing stockholders on a pro rata basis, which may
or may not be transferable. In any distribution of subscription rights to our stockholders, if all of the underlying securities
are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one
or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus
supplement.
Underwriter,
Dealer or Agent Discounts and Commissions
Underwriters,
dealers or agents may receive compensation in the form of discounts, concessions or commissions from us or our purchasers as their
agents in connection with the sale of securities. These underwriters, dealers or agents may be considered to be underwriters under
the Securities Act. As a result, discounts, commissions, or profits on resale received by the underwriters, dealers or agents
may be treated as underwriting discounts and commissions. Each prospectus supplement will identify any such underwriter, dealer
or agent, and describe any compensation received by them from us. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time. The maximum commission or discount to be received by
any underwriter, dealer or agent will not be greater than eight percent (8%) of the maximum gross proceeds of the securities that
may be sold under this prospectus and any applicable prospectus supplement, as the case may be.
Delayed
Delivery Contracts
If
the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide
for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described
in the prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those
contracts.
Market-Making,
Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, each series of offered securities will be a new issue and will have no
established trading market. We may elect to list any series of offered securities on an exchange. Any underwriters that we use
in the sale of offered securities may make a market in such securities, but may discontinue such market making at any time without
notice. Therefore, the securities may not have a liquid trading market.
Any
person participating in a distribution of our securities will be subject to applicable provisions of the Exchange Act, and the
applicable SEC rules and regulations thereunder, including, among others, Regulation M, which may limit the timing of purchases
and sales of our securities by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in a
distribution of our securities to engage in market-making activities with respect to our securities. These restrictions may affect
the marketability of our securities and the ability of any person or entity to engage in market-making activities with respect
to our securities.
Certain
persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty
bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered
securities. If any such activities will occur, they will be described in the applicable prospectus supplement.
Derivative
Transactions and Hedging
We,
the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist
of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the
securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments
with returns linked to or related to changes in the price of the securities. In order to facilitate these derivative transactions,
we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect
the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities
in order to facilitate short sale transactions by others. The underwriters or agents may also use the securities purchased or
borrowed from us or others (or, in the case of derivatives, securities received from us in settlement of those derivatives) to
directly or indirectly settle sales of the securities or close out any related open borrowings of the securities.
Electronic
Auctions
We
may also make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms
of electronic bidding or ordering systems for the pricing and allocation of such securities, you should pay particular attention
to the description of that system we will provide in a prospectus supplement.
Such
electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional
offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which
such securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time”
basis, relevant information to assist in making a bid, such as the clearing spread at which the offering would be sold, based
on the bids submitted, and whether a bidder’s individual bids would be accepted, prorated or rejected. For example, in the
case of a debt security, the clearing spread could be indicated as a number of “basis points” above an index treasury
note. Of course, many pricing methods can and may also be used.
Upon
completion of such an electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors.
The final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole
or in part on the results of the Internet or other electronic bidding process or auction.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act.
Under
the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered
or licensed brokers or dealers.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities being offered pursuant to this prospectus
has been passed upon by McDonald Carano LLP, Reno, Nevada, and Morrison & Foerster LLP, San Diego, California.
Any underwriters will be advised about legal matters relating to any offering by their own legal counsel.
EXPERTS
The
consolidated financial statements of OncoSec Medical Incorporated appearing in its Annual Report on Form 10-K for the fiscal year
ended July 31, 2015, filed with the SEC on October 14, 2015, have been audited by Mayer Hoffman McCann P.C., an independent registered
public accounting firm, as stated in its report therein, and are incorporated by reference. Such audited consolidated financial
statements are incorporated hereby by reference in reliance upon such report of such firm given upon its authority as experts
in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we file with it. This means that we can disclose important
information to you in this prospectus by referring you to another document. The information incorporated by reference is considered
to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede information
contained in this prospectus and any accompanying prospectus supplement. We incorporate by reference the documents listed below
that we have previously filed with the SEC (excluding any portions of any Current Report on Form 8-K that are not deemed “filed”
pursuant to the General Instructions of Form 8-K):
|
|
●
|
our
Annual Report on Form 10-K for the fiscal year ended July 31, 2015 filed with the SEC on October 14, 2015;
|
|
|
|
|
|
|
●
|
our
Quarterly Reports on Form 10-Q for the quarters ended October 31, 2015, January 31, 2016 and April 30, 2016 and filed with
the SEC on December 8, 2015, March 8, 2016 and June 9, 2016, respectively;
|
|
|
|
|
|
|
●
|
our
Current Reports on Form 8-K filed with the SEC on August 5, 2015, October 5, 2015, October 30, 2015, October 30, 2015, November
5, 2015, December 7, 2015, December 29, 2015, January 26, 2016, April 15, 2016, May 24, 2016 and July 1, 2016; and
|
|
|
|
|
|
|
●
|
the
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on May 27, 2015, including
any amendments or reports filed for the purpose of updating such description.
|
We
also incorporate by reference into this prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act prior to the completion or termination of the offering, including all such documents we may file
with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement,
but excluding any information deemed furnished and not filed with the SEC. Any statements contained in a previously filed document
incorporated by reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent
that a statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies
or supersedes that statement.
We
will provide without charge to each person, including any beneficial owner, to whom a prospectus is delivered, on written or oral
request of that person, a copy of any or all of the documents we are incorporating by reference into this prospectus, other than
exhibits to those documents unless such exhibits are specifically incorporated by reference into those documents. Such written
requests should be addressed to:
OncoSec
Medical Incorporated
5820
Nancy Ridge Drive
San
Diego, California 92121
Attention:
Investor Relations
You
may also make such requests by contacting us at (855) 662-6732.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports and proxy statements and other information with the SEC. You may read and copy any
document that we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our SEC filings are also available on the SEC’s
web site at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our web site at http://www.oncosec.com.
We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be
a part of this document.
$8,400,000
Common
Stock
PROSPECTUS
SUPPLEMENT
July
25, 2017
Oppenheimer
& Co.
OncoSec Medical (NASDAQ:ONCS)
Historical Stock Chart
From Mar 2024 to Apr 2024
OncoSec Medical (NASDAQ:ONCS)
Historical Stock Chart
From Apr 2023 to Apr 2024
