As filed with the Securities and Exchange Commission on December 28, 2017
Registration No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Iovance
Biotherapeutics, Inc.
(Exact name of registrant
as specified in its charter)
Delaware
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75-3254381
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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999 Skyway Road,
Suite 150
San Carlos, California
94070
(Address of registrant’s
principal executive offices, including zip code)
Maria Fardis,
Ph.D., M.B.A.
President and
Chief Executive Officer
Iovance Biotherapeutics,
Inc.
999 Skyway Road,
Suite 150
San Carlos, California
94070
(650) 260-7120
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
With copies to:
Istvan Benko
Tony Shin
TroyGould PC
1801 Century Park East,
16th Floor
Los Angeles, California
90067
(310) 553-4441
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, check the following box.
¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company, ” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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o
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Accelerated filer
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þ
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Non-accelerated filer
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o
(Do not check if a smaller reporting company)
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Smaller reporting company
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o
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Emerging growth company
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o
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If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION
FEE
Title of each class of
securities to be registered
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Amount
to be
registered (1)(2)
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Proposed
maximum
offering price
per unit (1)(2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee
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Common Stock, $0.000041666 par value (3)
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—
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Preferred Stock, $0.001 par value (3)
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—
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Debt Securities (3)
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—
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Warrants (3)
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—
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Units
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—
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Total
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$
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250,000,000
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$
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31,125
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(2)(4)
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(1) Such indeterminate number of each identified
class of securities as may from time to time be determined by the registrant and issued at prices determined by the registrant,
with an aggregate offering price not to exceed $250,000,000. Securities registered hereunder may be sold separately, together
with other securities registered hereunder or as units with other securities registered hereunder.
(2) Estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).
Pursuant to Rule 457(o) and General Instruction II.D of Form S-3, which permits the registration fee to be calculated on the basis
of the maximum offering price of all the securities listed for the primary offering, the table does not specify by each class
of security information as to the amount to be registered or proposed maximum offering price per security.
(3) Subject
to footnote (1), pursuant to Rule 416 under the Securities Act there are also being registered hereunder an indeterminate number
of shares of common stock and preferred stock and indeterminate principal amount of debt securities that may be issued upon conversion
of, or in exchange for, securities registered hereunder or upon exercise of warrants registered hereunder or as a result of stock
splits, stock dividends or similar transactions, as the case may be.
(4) Pursuant to Rule 415(a)(6) under the Securities
Act, $42,499,991 of the securities registered hereunder consists of unsold securities previously registered under the registration
statement on Form S-3 (Reg. No. 333-215320) declared effective on January 11, 2017, and the registration fee of $4,925.75 paid
with respect to such unsold securities in connection with such previous registration statement is offset against the filing fee
due hereunder.
The registrant hereby amends
this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The registrant previously
filed with the Securities and Exchange Commission a registration statement on Form S-3 (Reg. No. 333-215320) declared effective
on January 11, 2017, utilizing the “shelf” registration process under Rule 415 of the Securities Act, which we refer
to as the Earlier Registration Statement. This registration statement includes $42,499,991 of securities that remain unsold under
the Earlier Registration Statement. Pursuant to Rule 415(a)(6) of the Securities Act, the offering of the unsold securities under
the Earlier Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer
to buy these securities, in any state where the offer or sale is not permitted.
Subject to
Completion, Dated December 28, 2017
PROSPECTUS
$250,000,000
IOVANCE
BioTHERAPEUTICS, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
_________________
We may offer and sell from time to time, in
one or more offerings and on terms that we will determine at the time of each offering, shares of common stock, shares of preferred
stock, debt securities and/or warrants, either separately, together with other securities covered by this prospectus or as units
consisting of two or more of the securities covered by this prospectus. The debt securities, preferred stock and warrants may be
convertible into or exercisable or exchangeable for common stock, preferred stock or debt securities. The aggregate offering price
of all securities sold under this prospectus will not exceed $250,000,000.
We will provide the specific terms of each offering
of securities, including the price and the type and amount of securities to be offered and sold, in a supplement to this prospectus.
You should read this prospectus and the prospectus supplement carefully before you invest.
We may offer and sell these securities directly
to purchasers or to or through one or more underwriters, dealers and agents, and on a continuous or delayed basis. If we sell securities
to or through underwriters, dealers or agents, we will include their names and the fees, commissions and discounts that they will
receive, as well as the net proceeds to us, in the prospectus supplement. This prospectus may not be used to sell our securities
unless it is accompanied by the prospectus supplement. The delivery of this prospectus together with a prospectus supplement relating
to the offered securities shall not constitute an offer of any other securities covered by this prospectus.
Investing in our securities involves a
high degree of risk. See “Risk Factors” on page 4 of this prospectus and in the applicable prospectus supplement for
a discussion of risks that you should consider before you invest in our securities.
Our common stock is traded on The NASDAQ Global
Market under the symbol “IOVA.” On December 28, 2017, the last reported sale price of our common stock on The NASDAQ
Global Market was $8.30 per share.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus
is .
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf”
registration process. Under the shelf registration process, we may sell any combination of the securities described in this prospectus
in one or more transactions up to a total dollar amount of $250,000,000.
The rules and regulations of the SEC allow us
to omit from this prospectus certain information that is included in the registration statement. For further information about
us and our securities, you should review the registration statement and the exhibits filed with the registration statement. In
addition, the SEC allows us to incorporate by reference into this prospectus information in the reports and other documents that
we file with the SEC, which means that we can disclose important information to you by referring you to those reports and other
documents. The information incorporated by reference is considered to be part of this prospectus, and information that we later
file with the SEC will automatically update and, where applicable, modify or supersede that information. You may read the registration
statement (including its exhibits) and the reports and other documents that we file with the SEC at the SEC’s website,
www.sec.gov
,
or at the SEC’s Public Reference Room described below under the heading “Where You Can Find More Information.”
This prospectus provides you with a general
description of the securities we may offer. Each time we offer securities under this shelf registration, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together
with the additional information described under the heading “Incorporation of Certain Information by Reference.” To
the extent that any information in the prospectus supplement is inconsistent with the information in this prospectus, the information
in the prospectus supplement will modify or supersede this prospectus.
This prospectus and the applicable prospectus
supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities
to which they relate, nor do this prospectus and the applicable prospectus supplement constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction.
You should not assume that the information contained
in this prospectus and the applicable prospectus supplement is accurate as of any date subsequent to the date set forth on the
front of the document or that any information we have incorporated by reference is correct as of any date subsequent to the date
of the document incorporated by reference, even though this prospectus and any applicable prospectus supplement is delivered or
securities are sold on a later date. Our business, financial condition, results of operations and prospects may have changed since
those dates.
You should rely only on the information contained
in this prospectus, in the applicable prospectus supplement and in any documents incorporated by reference into this prospectus
and the applicable prospectus supplement. We have not authorized any salesperson, dealer or other person to provide you with information
different from that contained in this prospectus, in the applicable prospectus supplement or in any documents incorporated by reference
into this prospectus or the applicable prospectus supplement, and you are not entitled to rely upon any such different information.
Throughout this prospectus, the terms “Iovance,”
“we,” “us,” “our,” and “our company” refer to Iovance Biotherapeutics, Inc., a
Delaware corporation.
IOVANCE BIOTHERAPEUTICS,
INC.
Overview
We are a clinical-stage biopharmaceutical company
focused on the development and commercialization of novel cancer immunotherapy products designed to harness the power of a patient’s
own immune system to eradicate cancer cells. Our lead program is an adoptive cell therapy utilizing tumor-infiltrating lymphocytes
(TIL), which are T cells derived from patients’ tumors. This is a platform technology that has already been applied to the
treatment of metastatic melanoma and metastatic cervical cancer by the National Cancer Institute (NCI). We are investigating effectiveness
of TIL therapy for the treatment of metastatic melanoma, squamous cell carcinoma of the head and neck, cervical carcinoma, and
metastatic non-small cell lung cancer, as well as other oncology indications.
A patient’s immune system, particularly
their TIL, plays an important role in identifying and killing cancer cells. TIL product consist of a polyclonal population of
T cells that can recognize a wide variety of cancer-specific mutations. TIL regimen targets a tumor through the polyclonal nature
of the TIL product, and is able to overcome the hostile tumor microenvironment because of the non-myeloablative chemotherapy that
is a component of TIL therapy and the nature of the TIL cells themselves. TIL therapy involves growing a patient’s TIL outside
the patient’s body, or ex vivo, administering non-myeloablative chemotherapy, infusing the T cells back into the patient,
followed up with an infusion of up to six doses of interleukin-2 (IL-2). By expanding a patient’s TIL ex vivo away from
the immunosuppressive tumor microenvironment, the T cells can rapidly proliferate. As a result, billions of TIL cells, when infused
back into the patient, are better able to potentially eradicate tumors.
Manufacturing of TIL has typically taken
5-6 weeks and has yielded a non-cryopreserved TIL product. We have developed a new manufacturing method that reduces the duration
of manufacture of the TIL product to 22 days, and allows for production of a cryopreserved TIL product. We refer to our new manufacturing
method as Generation 2 (Gen 2) manufacturing. We own the intellectual property associated with Gen 2 manufacturing. In 2017, we
selected Gen 2 as the manufacturing method for TIL product to be used in all of our ongoing and upcoming trials. The cryopreserved
TIL product offers greater flexibility in scheduling the dosing of patients, reduces the period for patients to wait until they
receive their TIL product infusion, and reduces the cost of manufacture.
We are pursuing metastatic melanoma as our first
target indication because of the promising initial results in this indication generated by Dr. Steven Rosenberg, M.D., Ph.D., Chief
of the Surgery Branch of the NCI, and the commercial opportunity inherent in the significant unmet need of this patient population.
Melanoma is a common type of skin cancer, accounting for 87,110 patients diagnosed and 9,730 deaths in 2017 in the United States
according to the American Cancer Society’s Cancer Estimates for 2017. According to the NCI’s Surveillance, Epidemiology
and End Results (SEER) program, about 2-5% of patients with melanoma have metastatic disease. Patients with metastatic melanoma
following treatment under the current standards of care have a particularly dire prognosis with very few curative treatment options.
We have an on-going Phase 2 clinical trial,
C-144-01, of our lead product candidate, LN-144, TIL for the treatment of metastatic melanoma. This multicenter study is enrolling
patients with melanoma whose disease has progressed following treatment with at least one systemic therapy, including anti-PD-1
and if BRAF mutated, a BRAF inhibitor. The trial is currently active at eleven U.S. sites. We anticipate initiating patient dosing
in Europe during the first half of 2018. The purpose of the study is to evaluate the efficacy and safety of our autologous TIL
product (LN-144). The trial’s primary objective is to characterize the efficacy of LN-144. Secondary outcome measures for
safety and efficacy of LN-144 include objective response and complete response rates. Additional secondary or exploratory endpoints
may be evaluated as well. On December 13, 2017, we reported updated results from cohort 2 of the C-144-01 study. The data reported
showed clinically-meaningful outcomes with a 40% Objective Response Rate (per RECIST v1.1), which included four partial responses
observed in ten efficacy evaluable patients. The efficacy evaluable patients had a high tumor burden despite a median of 3.6 prior
therapies including both anti-CTLA and PD-1 prior treatments. The most common side effects of any grade were pyrexia, anemia and
decreased neutrophil count. Since we
have decided to use our Gen 2 manufacturing process
for all ongoing Phase 2 trials and in all future TIL clinical development in trials sponsored by us, Cohort 1 of the C-144-01 melanoma
study will be closed to enrollment, and new patients will be enrolled in cohort 2.
We received orphan drug designation for LN-144
in the United States to treat malignant melanoma stages IIB-IV. This designation provides seven years of market exclusivity in
the United States, subject to certain limited exceptions. However, the orphan drug designation does not convey any advantage in
or shorten the duration of the regulatory review or approval process. On August 31, 2017, we were granted Fast Track designation
by the U.S. Food and Drug Administration (FDA) for LN-144, TIL in advanced melanoma.
In addition to our ongoing trial in metastatic
melanoma, we have initiated clinical trials of TIL therapy in cervical, and head and neck cancers. C-145-03 is a Phase 2, multicenter
study that will enroll up to 47 patients and will assess the safety and efficacy of LN-145 for the treatment of patients with
recurrent and/or metastatic squamous cell carcinoma of the head and neck. The trial has met the efficacy threshold for the first
stage of the Simon’s two-stage design and will therefore continue to enroll patients to the full sample size of 47 per protocol.
We anticipate reporting early data from this study in 2018. C-145-04 is a Phase 2, multicenter study, designed as a Simon’s
two-stage design to enroll up to 47 patients and will assess the safety and efficacy of LN-145 for the treatment of patients with
recurrent, metastatic, or persistent cervical carcinoma. The study is open for enrollment of patients in the Unites States and
we anticipate the start of enrollment of patients in Europe in the first half of 2018. We have amended the protocol so that newly
enrolled patients in both of these trials can be treated using TIL produced from our Gen 2 manufacturing process.
We are
initiating our clinical development around non-small cell lung cancer (NSCLC) with two studies. One of the studies is an investigator
sponsored study to be conducted at H. Lee Moffitt Cancer Center and Research Institute (Moffitt), and one will be sponsored by
Iovance. We recently announced that patient enrollment has begun in the study in collaboration with researchers at Moffitt, Stand
Up To Cancer, and other collaborators. Patients who are treatment naïve to prior anti-PD-1/ PD-L1 with stage IV or recurrent
NSCLC will be enrolled in a study combining TIL and
nivolumab.
The Iovance sponsored
Phase 2 study in NSCLC who are PD-1 and PD-L1 naïve, in collaboration with MedImmune, the global biologics research and development
arm of AstraZeneca, will initiate
in the first half of 2018. The study with MedImmune will allow for enrollment with LN-145
alone or in combination with durvalumab. In the future, we plan to initiate additional indications alone or through collaborations.
We are also initiating clinical trials as part
of our strategic alliance with The University of Texas M.D. Anderson Cancer Center in multiple solid tumor cancers using two different
TIL manufacturing processes, including our Gen 2 manufacturing process. These multi-arm clinical trials will evaluate the safety
and efficacy of TIL therapy in ovarian cancer, various sarcomas, and pancreatic cancer, and are expected to begin enrollment in
2018.
In June 2017 we reincorporated from Nevada to
Delaware, and changed our name from “Lion Biotechnologies, Inc.” to “Iovance Biotherapeutics, Inc.”
Our current product candidate pipeline is summarized
in the graphic below:
Our current collaboration pipeline is summarized
in the graphic below:
Corporate Information
Information concerning our company is contained
in the documents that we file with the SEC as a reporting company under the Securities Exchange Act of 1934, as amended, which
are accessible at
www.sec.gov
, and on our website at www.iovance.com. The public can also obtain copies of these filings
by visiting the SEC’s Public Reference Room at 100 F Street NE, Washington D.C. 20549, or by calling the SEC at 1-800-SEC-0330.
The information contained on, or that can be accessed through, our website is not a part of this prospectus. Investors should not
rely on any such information in deciding whether to purchase our common stock. We have included our website address in this prospectus
solely as an inactive textual reference. Information on our website is not, and should not be considered, part of this prospectus.
Our principal executive offices are located
at 999 Skyway Road, Suite 150, San Carlos, California 94070, and our telephone number is (650) 260-7120.
RISK FACTORS
Investment
in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves a high degree of risk.
Prior to making a decision about investing in our securities, you should carefully consider the risk factors described in our most
recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q and in any subsequent Quarterly Reports on Form 10-Q or
Current Reports on Form 8-K that we file with the SEC after the date of this prospectus, all of which are incorporated by reference
into this prospectus. You should also carefully review all other information contained in or incorporated by reference into this
prospectus and the applicable prospectus supplement, including the information contained below under the heading “Cautionary
Note Regarding Forward-Looking Statements,” as updated by our subsequent filings under the Securities Exchange Act of 1934,
as amended. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
herein by reference contain forward-looking statements, and we anticipate that the applicable prospectus supplement will contain
forward-looking statements. These statements relate to future events or to our future financial performance and involve known and
unknown risks, uncertainties and other factors that may cause our actual results to be materially different from any future results
expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by the use of
words such as “believe,” “anticipate,” “intend,” “plan,” “estimate,”
“may,” “could,” “anticipate,” “predict,” or “expect” and similar expressions.
You should not place undue reliance on forward-looking statements since they involve known and unknown risks, uncertainties and
other factors that are, in many cases, beyond our control. Forward-looking statements are not guarantees of future performance.
Actual events or results may differ materially from those discussed in the forward-looking statements as a result of various factors.
Except as required by applicable law, we do not undertake any obligation to publicly update any forward-looking statements, whether
as a result of new information, future developments or otherwise.
Important factors that could cause actual results
to differ materially from those reflected in our forward-looking statements include, among others:
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our inability to obtain regulatory approval for, or successfully commercialize, our leading product candidate, LN-144, or our
other product candidates;
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difficultly in enrolling patients in our clinical trials and uncertainty of clinical trial results;
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our inability to control the timing and some of the research and development activities of our third-party research institution
collaborators relating to our product candidates;
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our history of operating losses and inability to become profitable;
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uncertainty and volatility in the price of our common stock;
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the costs and effects of existing and potential governmental investigations and litigation;
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our inability to meet the continued listing requirements of The NASDAQ Global Market;
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our inability to implement and maintain appropriate internal controls;
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uncertainty as to our employees’ and independent contractors' compliance with regulatory standards and requirements and
securities insider trading rules;
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dependence on the efforts of third parties to conduct and oversee our clinical trials for our product candidates, to manufacture
clinical supplies of our product candidates and to commercialize our product candidates;
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the effect of government regulations on our business;
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a loss of any of our key management personnel;
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our inability to secure and maintain relationships with collaborators and contract manufacturers;
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our inability to develop or commercialize our product candidates due to intellectual property rights held by third parties;
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our inability to protect the confidentiality, privacy, or security of our data or our trade secrets; and
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our potential inability to access capital required to fund
proposed operations.
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All written and verbal forward-looking statements
attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained
or referred to in this section. We caution investors not to rely too heavily on the forward-looking statements we make or that
are made on our behalf.
In addition, you should refer to the documents
we have incorporated by reference for a discussion of other important factors that may cause our actual results to differ materially
from those expressed or implied by our forward-looking statements. As a result of these factors, we cannot assure you that the
forward-looking statements will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the
inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard
these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any
specified time frame, or at all.
We may discuss certain of these risks and uncertainties
in greater detail in any prospectus supplement under the heading “Risk Factors.” Additional cautionary statements or
discussions of risks and uncertainties that could affect our results or the achievement of the expectations described in forward-looking
statements may also be contained in the documents we incorporate by reference into this prospectus, including our most recent Annual
Report on Form 10-K and our Quarterly Report on Form 10-Q filed with the SEC.
RATIO OF EARNINGS TO
FIXED CHARGES AND PREFERENCE DIVIDENDS
The following table sets forth our ratio of
earnings, if any, to fixed charges for each of the periods presented:
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Year Ended December 31,
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Nine Months
Ended
September 30,
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2016
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2015
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2014
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2013
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2012
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2017
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Ratio of earnings to fixed charges(1)
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N/A
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N/A
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N/A
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N/A
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N/A
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N/A
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(1) For
each of these periods, earnings were insufficient to cover fixed charges and combined fixed charges and preferred stock dividends.
The amounts of the insufficiencies were $52,894,000, $27,660,000, $12,035,000, $25,382,000 and $3,308,000 for the years ended December
31, 2016, 2015, 2014, 2013 and 2012, respectively, and $66,210,000 for the nine months ended September 30, 2017. We did not pay
or accrue any preference dividends for any of the periods presented above.
USE OF PROCEEDS
Unless
we state otherwise in the applicable prospectus supplement, we intend to use the net proceeds from the sale of securities described
in this prospectus for the further development of our product candidates and for general corporate purposes, which may include,
among other things, reducing indebtedness, acquiring other companies (although we currently have no agreement to acquire any other
company), purchasing other assets or lines of business, repurchasing our common stock and making capital expenditures, as well
as for working capital. Until we use the net proceeds for these purposes, we intend to invest the net proceeds in investment-grade,
interest-bearing securities. We have not determined the amounts we plan to spend on any of these areas or the timing of these expenditures.
As a result, our management will have broad discretion regarding the application of the net proceeds from the sale of securities
described in this prospectus.
THE SECURITIES THAT WE
MAY OFFER
We, directly or through underwriters, dealers
or agents designated by us from time to time, may offer, issue and sell, together or separately, up to $250,000,000 in the aggregate
of:
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shares of our common stock, par value $0.000041666 per share;
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shares of our preferred stock, par value $0.001 per share;
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warrants to purchase shares of our common stock, shares of our preferred stock and/or our debt securities; and
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units consisting of two or more of the securities described above.
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The common stock, the preferred stock, the debt
securities, the warrants and the units collectively are referred to in this prospectus as the “securities.”
We have summarized below the material terms
of the various types of securities that we may offer. We will describe in the applicable prospectus supplement the detailed terms
of the securities offered by that supplement. If indicated in the prospectus supplement, the terms of the offered securities may
differ from the terms summarized below.
This prospectus may not be used to sell
our securities unless it is accompanied by the applicable prospectus supplement.
DESCRIPTION OF SECURITIES
The following is a summary of all material
characteristics of our capital stock as set forth in our certificate of incorporation and bylaws, as amended. Copies of these documents
are filed or incorporated by reference as exhibits to the registration statement, of which this prospectus forms a part.
DESCRIPTION OF COMMON
STOCK
We are presently authorized to issue 150,000,000
shares of $0.000041666 par value common stock. As of September 30, 2017, we had issued and outstanding 71,954,843 shares of common
stock.
We have one class of common stock. Holders of
our common stock are entitled to one vote per share on all matters to be voted upon by stockholders and do not have cumulative
voting rights in the election of directors. Holders of shares of common stock are entitled to receive on a pro rata basis such
dividends, if any, as may be declared from time to time by our board of directors in its discretion from funds legally available
for that use, subject to any preferential dividend rights of outstanding preferred stock. They are also entitled to share on a
pro rata basis in any distribution to our common stockholders upon our liquidation, dissolution or winding up, subject to the prior
rights of any outstanding preferred stock. Common stockholders do not have preemptive rights to subscribe to any additional stock
issuances by us, and they do not have the right to require the redemption of their shares or the conversion of their shares into
any other class of our stock. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of any series of preferred stock that we may designate and issue in the future.
The following provisions of our certificate
of incorporation and bylaws could have the effect of delaying or discouraging another party from acquiring control of us and could
encourage persons seeking to acquire control of us to first negotiate with our board of directors:
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our certificate of incorporation and bylaws prohibit our stockholders from f
illing
board vacancies,
calling special stockholder meetings or taking action by written consent;
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our certificate of incorporation and bylaws require advance written notice of stockholder proposals and director nominations;
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our certificate of incorporation requires any action instituted against our officers or directors in connection with their
service to us to be brought in the state of Delaware.
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our bylaws provide that our board of directors will establish the authorized number of directors from time to time;
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our bylaws provide for the removal of a director only with cause and by the affirmative vote of the holders of at least two-thirds
of the shares then entitled to vote at an election of our directors;
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our certificate of incorporation does not permit cumulative voting in the election of directors; and
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our certificate of incorporation permits our board of directors to determine the rights, privileges and preferences of any
new series of preferred stock, some of which could impede the ability of a person to acquire control of our company.
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The transfer agent and registrar of our common
stock is Continental Stock Transfer and Trust Company. The address of our transfer agent and registrar is 7 Battery Place, 8th
Floor New York, New York 10004, and its telephone number is (212) 509-4000.
Our common stock is traded on The NASDAQ Global
Market under the symbol “IOVA.”
DESCRIPTION OF PREFERRED
STOCK
We have authority to issue 50,000,000 shares
of preferred stock, par value $0.001 per share. As of September 30, 2017, we had issued and outstanding 1,694 shares of Series
A Convertible Preferred Stock (the “Series A Preferred”) that are convertible into 847,000 shares of common stock,
and
7,946,673
shares of Series B Preferred (the “Series B Preferred”)
that are convertible into 7,946,673 shares of common stock. There are no other series of shares of our preferred stock currently
issued or outstanding. The rights and restrictions granted or imposed on the shares of the Series A Preferred and Series B Preferred
are described below.
Under our certificate of incorporation, our
board of directors has the authority, without further action by stockholders, to designate one or more series of preferred stock
and to fix the voting powers, designations, preferences, limitations, restrictions and relative rights granted to or imposed upon
the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preference
and sinking fund terms, any or all of which may be preferential to or greater than the rights of the common stock.
Our board of directors may authorize the issuance
of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders
of the common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and
other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control
and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock.
We will describe in a prospectus supplement
relating to any series of preferred stock being offered the following terms:
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the distinguishing designation of the series of preferred stock;
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the number of shares of the series of preferred stock offered, the liquidation preference per share and the offering price
of the series;
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the dividend rate(s), period(s) or payment date(s) or method(s) of calculation applicable to the series of preferred stock;
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whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the series of preferred
stock will accumulate;
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the procedures for any auction and remarketing, if any, for the series of preferred stock;
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the provisions for a sinking fund, if any, for the series of preferred stock;
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the provision for redemption, if applicable, of the series of preferred stock;
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any listing of the series of preferred stock on any securities exchange;
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the terms and conditions, if applicable, upon which the series of preferred stock will be convertible into common stock, including
the conversion price or manner of calculation and conversion period;
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voting rights, if any, of the series of preferred stock;
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a discussion of any material or special U.S. federal income tax considerations applicable to the series of preferred stock;
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the relative ranking and preferences of the series of preferred stock as to dividend rights and rights upon the liquidation,
dissolution or winding up of our affairs;
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any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the series of preferred
stock being offered as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and
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any other specific terms, preferences, rights, limitations
or restrictions of the series of preferred stock.
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Unless we specify otherwise in the
applicable prospectus supplement, the preferred stock will rank, relating to dividends and upon our liquidation, dissolution or
winding up:
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senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock;
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on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a
parity with the preferred stock; and
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junior to all of our equity securities the terms of which
specifically provide that the equity securities rank senior to the preferred stock.
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Series A Preferred
In October 2013, we created a new class of preferred
stock designated as “Series A Convertible Preferred Stock.” The shares of Series A Preferred have a stated value of
$1,000 per share and are initially convertible into shares of common stock at a price of $2.00 per share (subject to adjustment
as described below). The rights of the Series A Preferred are set forth in the Certificate of Designation Of Preferences And Rights
Of Series A Convertible Preferred Stock (the “Series A Certificate of Designation”), which gives the holders of the
Series A Preferred the following rights, preferences and privileges:
The Series A Preferred may, at the option of
the holder, be converted at any time or from time to time into fully paid and non-assessable shares of common stock at the conversion
price in effect at the time of conversion; provided, that a holder of Series A Preferred may at any given time convert only up
to that number of shares of Series A Preferred so that, upon conversion, the aggregate beneficial ownership of the common stock
(calculated pursuant to Rule 13d-3 of the Exchange Act) of such holder and all persons affiliated with such holder, is not more
than 4.99% of the common stock then outstanding (subject to adjustment up to 9.99% solely at the holder’s discretion upon
60 days’ prior notice). The number of shares into which one share of Series A Preferred shall be convertible is determined
by dividing the stated value of $1,000 per share by the initial Conversion Price. The "Conversion Price" per share for
the Series A Preferred is initially equal to $2.00 (subject to appropriate adjustment for certain events, including stock splits,
stock dividends, combinations, recapitalizations or other recapitalizations affecting the Series A Preferred).
The Series A Preferred will automatically be
converted into common stock at the then-applicable Conversion Price (1) upon the written consent of the holders holding at least
a majority of the outstanding shares of Series A Preferred or (2) if required by us to be able to list our common stock on a national
securities exchange; provided, any such conversions will continue to be limited by, and subject to the beneficial ownership conversion
limitations set forth above.
Except as otherwise required by law, the holders
of shares of Series A Preferred do not have the right to vote on matters that come before the stockholders; provided, that we may
not, without the prior written consent of a majority of the outstanding Series A Preferred: (1) amend, alter, or repeal any provision
of our certificate of incorporation (including the Series A Certificate of Designation) or Bylaws in a manner adverse to the Series
A Preferred; (2) create or authorize the creation of or issue any other security convertible into or exercisable for any equity
security, having rights, preferences or privileges senior to or on parity with the Series A Preferred, or increase the authorized
number of shares of Series A Preferred; or (3) enter into any agreement with respect to any of the foregoing.
In the event of any dissolution or winding up
of our company, whether voluntary or involuntary, the proceeds would be paid
pari passu
among the holders of shares of our
common stock, Series A Preferred and Series B Preferred, pro rata based on the number of shares held by each such holder,
treating for this purpose all such securities as if they had been converted to common stock.
We may not declare, pay or set aside any dividends
on shares of any class or series of our capital stock (other than dividends on shares of common stock payable in shares of common
stock) unless the holders of the Series A Preferred shall first receive, or simultaneously receive, an equal dividend on each outstanding
share of Series A Preferred.
Series B Preferred
In June 2016, we created a new class of Preferred
Stock designated as “Series B Preferred Stock.” The rights of the Series B Preferred are set forth in the Certificate
of Designation of Preferences and Rights of Series B Preferred Stock (the “Series B Certificate of Designation”).
A total of 11,500,000 shares of Series B Preferred are authorized for issuance under Series B Certificate of Designation.
The shares of Series B Preferred have a stated value of $4.75 per share and are convertible into shares of our common stock at
a conversion price of $4.75 per share, subject to certain adjustments.
Holders of Series B Preferred are entitled to
dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of our Series A Preferred or other
securities. So long as any Series B Preferred remains outstanding, we may not redeem, purchase or otherwise acquire any material
amount of our Series A Preferred or other securities.
The shares of Series B Preferred are convertible,
at the option of each holder, at any time or from time to time into shares of our common stock at the conversion price in effect
at the time of conversion, except that, subject to certain limited exceptions, no holder of Series B Preferred may convert the
Series B Preferred if, after giving effect to the conversion, the holder and all affiliated persons would own beneficially more
than 4.99% of our common stock (subject to adjustment to up to 9.99% solely at the holder’s discretion upon 61 days’
prior notice to us). The conversion price of $4.75 is subject to appropriate adjustment in the event of a stock split, stock dividend,
combination or other recapitalization affecting our common stock.
Holders of a majority of the outstanding shares
of Series B Preferred are entitled to elect to convert all of the outstanding shares of the Series B Preferred into shares of common
stock, subject to the beneficial ownership limitations of each holder set forth above.
Except as otherwise required by law, the holders
of Series B Preferred have no right to vote on matters submitted to a vote of our stockholders. Without the prior written consent
of a majority of the outstanding shares of Series B Preferred, however, we may not: (i) amend our certificate of incorporation
(including the Series B Certificate of Designation) in a manner adverse to the Series B Preferred; (ii) create or authorize the
creation of any other security convertible into or exercisable for any equity security ranking as to dividends, redemption or distribution
of assets upon a liquidation senior to, the Series B Preferred, or increase the authorized number of shares of Series B Preferred;
or (iii) enter into any agreement with respect to any of the foregoing.
In the event of the dissolution and winding
up of our company, the proceeds available for distribution to our stockholders would be paid
pari passu
among the holders
of shares of our common stock, Series A Preferred and Series B Preferred, pro rata based upon the number of shares held by each
such holder, treating for this purpose all such securities as if they had been converted into our common stock.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the
terms of debt securities we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular
terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities.
As required by Federal law for all bonds and
notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture,”
the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. We have summarized
the general features of the debt securities to be governed by the indenture. The summary is not complete. An indenture is a contract
between us and a financial institution acting as trustee on behalf of the holders of the debt securities, and is subject to and
governed by the Trust Indenture Act of 1939, as amended. The trustee has two main roles. First, the trustee can enforce holders’
rights against us if we default. There are some limitations on the extent to which the trustee acts on holders’ behalf, described
in the second paragraph under “Description of Debt Securities—Events of Default.” Second, the trustee performs
certain administrative duties, such as sending interest and principal payments to holders.
Because this section is a summary, it does not
describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular terms
of any debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you
to read the applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because
it, and not this description, will define the rights of holders of such debt securities.
A prospectus supplement will describe the particular
terms of any series of debt securities we may issue, including some or all of the following:
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the designation or title of the series of debt securities;
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the total principal amount of the series of debt securities, the denominations in which the offered debt securities will be
issued and whether the offering may be reopened for additional securities of that series and on what terms;
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the percentage of the principal amount at which the series of debt securities will be offered;
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the date or dates on which principal will be payable;
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest,
if any;
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates
on which any interest will be payable;
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the terms for redemption, extension or early repayment, if any;
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the currencies in which the series of debt securities are issued and payable;
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whether the amount of payments of principal, interest or premium, if any, on a series of debt securities will be determined
with reference to an index, formula or other method and how these amounts will be determined;
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the place or places of payment, transfer, conversion and/or exchange of the debt securities;
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the provision for any sinking fund;
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any restrictive covenants;
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whether the series of debt securities are issuable in certificated form;
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any provisions for legal defeasance or covenant defeasance;
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge
and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms
of this option);
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities;
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whether the debt securities are subject to subordination and the terms of such subordination;
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any listing of the debt securities on any securities exchange;
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if applicable, a discussion of certain U.S. Federal income tax considerations, including those related to original issue discount,
if applicable; and
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any other material terms.
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The debt securities may be secured or unsecured
obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be paid by us in
immediately available funds.
General
The indenture may provide that any debt securities
proposed to be sold under this prospectus and the applicable prospectus supplement relating to such debt securities (“offered
debt securities”) and any debt securities issuable upon conversion or exchange of other offered securities (“underlying
debt securities”) may be issued under the indenture in one or more series.
For purposes of this prospectus, any reference
to the payment of principal of, or interest or premium, if any, on, debt securities will include additional amounts if required
by the terms of the debt securities.
Debt securities issued under an indenture, when
a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.”
The indenture may also provide that there may be more than one trustee thereunder, each with respect to one or more different series
of securities issued thereunder. See “Description of Debt Securities—Resignation of Trustee” below. At a time
when two or more trustees are acting under an indenture, each with respect to only certain series, the term “indenture securities”
means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there
is more than one trustee under an indenture, the powers and trust obligations of each trustee described in this prospectus will
extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under
an indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
We refer you to the applicable prospectus supplement
relating to any debt securities we may issue from time to time for information with respect to any deletions from, modifications
of or additions to the Events of Default or covenants that are described below, including any addition of a covenant or other provision
providing event risk or similar protection, that will be applicable with respect to such debt securities.
We have the ability to issue indenture securities
with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen
a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening
was restricted when that series was created.
Conversion and Exchange
If any debt securities are convertible into or
exchangeable for other securities, the related prospectus supplement will explain the terms and conditions of the conversion or
exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how
the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for
adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption
of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities
to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price
of the other securities as of a time stated in the prospectus supplement.
Payment and Paying Agents
We will pay interest to the person listed in the
applicable trustee’s records as the owner of the debt security at the close of business on a particular day in advance of
each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, often approximately
two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest for
an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves
the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest
fairly between buyer and seller based on their respective ownership periods within the particular interest period. This prorated
interest amount is called “accrued interest.”
Events of Default
Holders of debt securities of any series will
have rights if an Event of Default occurs in respect of the debt securities of such series and is not cured, as described later
in this subsection. The term “Event of Default” in respect of the debt securities of any series means any of the following:
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we do not pay the principal of, or any premium on, a debt security of the series on its due date;
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we do not pay interest on a debt security of the series within 30 days of its due date;
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we do not deposit any sinking fund payment in respect of debt securities of the series on its due date and we do not cure this
default within five days;
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we remain in breach of a covenant in respect of debt securities of the series for 90 days after we receive a written notice
of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the principal
amount of debt securities of the series;
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we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; and
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any other Event of Default occurs in respect of debt securities
of the series described in the prospectus supplement.
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An Event of Default for a particular series
of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the
same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment
of principal, premium or interest, if it considers the withholding of notice to be in the best interests of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has occurred and has
not been cured or waived, the trustee or the holders of not less than 25% in principal amount of the debt securities of the affected
series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This
is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of
a majority in principal amount of the debt securities of the affected series if the default is cured or waived and certain other
conditions are satisfied.
Except in cases of default, where the trustee
has some special duties, the trustee typically is not required to take any action under an indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”). If
reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant
series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available
to the trustee. The trustee may refuse to follow those directions in certain circumstances.
Before a holder is allowed to bypass the trustee
and bring its own lawsuit or other formal legal action or take other steps to enforce its rights or protect its interests relating
to any debt securities, the following must occur:
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the holder must give the trustee written notice that an Event of Default has occurred and remains uncured;
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the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written
request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost
and other liabilities of taking that action;
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the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and
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the holders of a majority in principal amount of the debt
securities must not have given the trustee a direction inconsistent with the above notice during that 60-day period.
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However, a holder is entitled at any time to
bring a lawsuit for the payment of money due on its debt securities on or after the due date. Each year, we will furnish to each
trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture
and the debt securities, or else specifying any default.
Waiver of Default
The holders of a majority in principal amount
of the relevant series of debt securities may waive a default for all such series of debt securities. If this happens, the default
will be treated as if it had not occurred. No one can waive a payment default on a holder’s debt security, however, without
the holder’s approval.
Merger or Consolidation
Under the terms of an indenture, we may be permitted
to consolidate or merge with another entity. We may also be permitted to sell all or substantially all of our assets to another
entity. However, typically we may not take any of these actions unless all the following conditions are met:
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if we do not survive such transaction or we convey, transfer or lease our properties and assets substantially as an entirety,
the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized
under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible
for our debt securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia,
the new company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for
service of process;
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alternatively, we must be the surviving company;
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immediately after the transaction no Event of Default will exist;
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we must deliver certain certificates and documents to the trustee; and
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we must satisfy any other requirements specified in the
prospectus supplement relating to a particular series of debt securities.
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Modification or Waiver
There are three types of changes we may make
to an indenture and the debt securities issued thereunder.
Changes Requiring Approval
First, there are changes that we cannot make
to debt securities without specific approval of all of the holders. The following is a list of the types of changes that may require
specific approval:
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change the stated maturity of the principal of or rate of interest on a debt security;
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reduce any amounts due on a debt security;
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reduce the amount of principal payable upon acceleration of the maturity of a security following a default;
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at any time after a change of control has occurred, reduce any premium payable upon a change of control;
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change the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement);
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impair the right of holders to sue for payment;
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adversely affect any right to convert or exchange a debt security in accordance with its terms;
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture;
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults;
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modify any other aspect of the provisions of the indenture dealing with supplemental indentures, modification and waiver of
past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and
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change any obligation we have to pay additional amounts.
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Changes Not Requiring Approval
The second type of change does not require any
vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that would not adversely
affect holders of the outstanding debt securities in any material respect, including the addition of covenants and guarantees.
We also do not need any approval to make any change that affects only debt securities to be issued under the indenture after the
change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture and the debt
securities may require the following approval:
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if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount
of that series; and
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if the change affects more than one series of debt securities
issued under the same indenture, it must be approved by the holders of a majority in principal amount of all of the series affected
by the change, with all affected series voting together as one class for this purpose.
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The holders of a majority in principal amount
of all of the series of debt securities issued under an indenture, voting together as one class for this purpose, may waive our
compliance obligations with respect to some of our covenants in that indenture. However, we cannot obtain a waiver of a payment
default or of any of the matters covered by the bullet points included above under “Description of Debt Securities—Modification
or Waiver—Changes Requiring Approval.”
Further Details Concerning Voting
When taking a vote on proposed changes to the
indenture and the debt securities, we expect to use the following rules to decide how much principal to attribute to a debt security:
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for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if
the maturity of these debt securities were accelerated to that date because of a default;
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for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special
rule for that debt security described in the related prospectus supplement; and
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for debt securities denominated in one or more foreign
currencies, we will use the U.S. dollar equivalent.
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Debt securities will not be considered outstanding,
and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities
will also not be eligible to vote if they have been fully defeased as described later under “Description of Debt Securities—Defeasance—Legal
Defeasance.”
We generally will be entitled to set any day
as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote or take
other action under the indenture. If we set a record date for a vote or other action to be taken by holders of one or more series,
that vote or action may be taken only by persons who are holders of outstanding indenture securities of those series on the record
date and must be taken within 11 months following the record date.
Book-entry and other indirect holders will need
to consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or
the debt securities or request a waiver.
Defeasance
The following provisions will be applicable
to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance
and legal defeasance will not be applicable to that series.
Covenant Defeasance
We can make the deposit described below and
be released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called
“covenant defeasance.” In that event, the holders would lose the protection of those restrictive covenants but would
gain the protection of having money and government securities set aside in trust to repay holders’ debt securities. If applicable,
a holder also would be released from the subordination provisions described under “Description of Debt Securities—Indenture
Provisions—Subordination” below. In order to achieve covenant defeasance, we must do the following:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of
all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
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We may be required to deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. Federal income
tax law, we may make the above deposit without causing the holders to be taxed on the debt securities any differently than if we
did not make the deposit and just repaid the debt securities ourselves at maturity; and
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We must deliver to the trustee certain documentation stating
that all conditions precedent to covenant defeasance have been complied with.
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If we accomplish covenant defeasance, holders
can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented
from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities
became immediately due and payable, there might be a shortfall. Depending on the event causing the default, holders may not be
able to obtain payment of the shortfall.
Legal Defeasance
As described below, we can legally release ourselves
from all payment and other obligations on the debt securities of a particular series (called “legal defeasance”), (1)
if there is a change in U.S. Federal tax law that allows us to effect the release without causing the holders to be taxed any differently
than if the release had not occurred, and (2) if we put in place the following other arrangements for holders to be repaid:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of
all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
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We may be required to deliver to the trustee a legal opinion confirming that there has been a change in current U.S. Federal
tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing the holders to be taxed
on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity.
Under current U.S. Federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid
each holder its share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange
for its debt securities and holders would recognize gain or loss on the debt securities at the time of the deposit; and
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We must deliver to the trustee a legal opinion and officers’
certificate stating that all conditions precedent to legal defeasance have been complied with.
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If we ever did accomplish legal defeasance, as
described above, holders would have to rely solely on the trust deposit for repayment of the debt securities. Holders could not
look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from
claims of our lenders and other creditors if we ever became bankrupt or insolvent. If applicable, holders would also be released
from the subordination provisions described later under “Description of Debt Securities—Indenture Provisions—Subordination.”
Resignation of Trustee
Each trustee may resign or be removed with respect
to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to such series.
In the event that two or more persons are acting as trustee with respect to different series of indenture securities under the
indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions—Subordination
Upon any distribution of our assets upon our
dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any
indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture
in right of payment to the prior payment in full of all Senior Indebtedness (defined below), but our obligation to holders to make
payment of the principal of (and premium, if any) and interest on such subordinated debt securities will not otherwise be affected.
In addition, no payment on account of principal (or premium, if any), interest or sinking fund, if any, may be made on such subordinated
debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), interest
and sinking fund, if any, on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing,
any payment from us is received by the trustee in respect of subordinated debt securities or by the holders of any of such subordinated
debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the holders of
the Senior Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until
all the Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution to the holders
of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the holders of such subordinated debt securities
will be subrogated to the rights of the holders of the Senior Indebtedness to the extent of payments made to the holders of the
Senior Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination, in the event
of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders of
any subordinated debt securities. The related indenture will provide that these subordination provisions will not apply to money
and securities held in trust under the defeasance provisions of the indenture.
“Senior Indebtedness” will be defined
in an applicable indenture as the principal of (and premium, if any) and unpaid interest on:
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our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for
money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities), unless
in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness
is not senior or prior in right of payment to the subordinated debt securities; and
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renewals, extensions, modifications and refinancings of
any of such indebtedness.
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The prospectus supplement accompanying any series
of indenture securities denominated as subordinated debt securities will set forth the approximate amount of our Senior Indebtedness
outstanding as of a recent date.
Trustee
We intend to name the indenture trustee for each
series of indenture securities in the related prospectus supplement.
Certain Considerations Relating to Foreign
Currencies
Debt securities denominated
or payable in foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations
in the foreign currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary
market. These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable
prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares
of our common stock, preferred stock or debt securities. We may issue warrants independently or together with other securities,
and the warrants may be attached to or separate from any offered securities. If a series of warrants will be issued under a separate
warrant agreement to be entered into between us and the investors or a warrant agent, we will so specify in the applicable prospectus
supplement. The following summary of the material provisions of the warrants and warrant agreements is subject to, and qualified
in its entirety by reference to, all the provisions of the warrants and any warrant agreement applicable to a particular series
of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. We urge
you to read the applicable prospectus supplement, as well as the complete warrants and warrant agreements that contain the terms
of the warrants.
The material terms of any issue of
warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and
the price at which such number of shares may be purchased upon such exercise;
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a summary of the designation and terms (including, without limitation, liquidation, dividend, conversion and voting rights)
of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock as set forth in the certificate
of designation for such series of preferred stock;
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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;
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the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be
separately transferable;
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the terms of any rights to redeem or call the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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U.S. federal income tax consequences applicable to the warrants; and
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any additional terms of the warrants, including terms,
procedures, and limitations relating to the exchange, exercise and settlement of the warrants.
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Each warrant will entitle its holder to purchase
the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth
in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants
will become void.
A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration
of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable
prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any
rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal,
premium or interest on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to
purchase common stock or preferred stock are exercised, the holders of the warrants will not have any rights of holders of the
underlying common stock or preferred stock, including any rights to receive dividends or payments upon any liquidation, dissolution
or winding up on the common stock or preferred stock, if any.
DESCRIPTION OF UNITS
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may elect to evidence each series of units
by unit certificates that we will issue under a separate unit agreement. We may enter into unit agreements with a unit agent. Each
unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable
prospectus supplement relating to a particular series of units.
The following description, together with the
additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may
offer under this prospectus. You should read any prospectus supplement related to the series of units being offered, as well as
the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms,
and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms
of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following,
as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the units; and
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any other material terms of the units and their constituent
securities.
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PLAN OF DISTRIBUTION
We may sell the securities covered
by this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination
of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may
be distributed from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each time that we sell securities covered
by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set
forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds
to us, if applicable.
Offers to purchase the securities being
offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the
securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell
the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale
of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time
of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the
underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated
in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal,
and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers
or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters
to participating dealers, will be described in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended
(the “Securities Act”), and any discounts and commissions received by them and any profit realized by them on resale
of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they
may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common stock issued by us will be traded
on The NASDAQ Global Market unless we specify otherwise in the prospectus supplement, but any other securities may or may not be
publicly traded or listed on a national securities exchange. To facilitate the offering of securities, certain persons participating
in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities
than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the
price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
If indicated in the applicable prospectus
supplement, underwriters or other persons acting as agents may be authorized to solicit offers by institutions or other suitable
purchasers to purchase the securities at the public offering price set forth in the prospectus supplement, pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These purchasers
may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational
and charitable institutions. Delayed delivery contracts will be subject to the condition that the purchase of the securities covered
by the delayed delivery contracts will not at the time of delivery be prohibited under the laws of any jurisdiction in the United
States to which the purchaser is subject. The underwriters and agents will not have any responsibility with respect to the validity
or performance of these contracts.
We may engage in at-the-market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named
in the applicable prospectus supplement. In addition, we may otherwise loan or pledge securities to a financial institution or
other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such
financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The specific terms of any lock-up provisions
in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may
engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
The validity of the securities offered by
this prospectus has been passed upon for us by TroyGould PC, Los Angeles, California, and Morgan, Lewis & Bockius LLP, New
York, New York. Some of the attorneys at TroyGould PC own shares of our common stock constituting in the aggregate less than 1%
of our outstanding shares of common stock. Additional legal matters may be passed upon for us or any underwriters, dealers or agents
by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Our financial statements as of December
31, 2016 and for the year then ended, and management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2016 incorporated by reference into this prospectus have been so incorporated in reliance on the reports
of Marcum LLP, independent registered public accounting firm, upon the authority of said firm as experts in auditing and accounting.
Our financial statements as of December
31, 2015 and 2014 and for the years then ended, incorporated by reference into this prospectus have been so incorporated in reliance
on the reports of Weinberg & Company, P.A., independent registered public accounting firm, upon the authority of said firm
as experts in auditing and accounting.
WHERE YOU CAN FIND
MORE INFORMATION
We are subject to the information and periodic
reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in accordance with
that act, file periodic reports and other information with the SEC. The periodic reports and other information filed by us are
available for inspection and copying at prescribed rates 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 about the operation of the SEC’s Public Reference
Room. The SEC also maintains an Internet site that contains all reports and other information that we file electronically with
the SEC. The address of that website is www.sec.gov.
This prospectus is part of a registration
statement on Form S-3 that we have filed with the SEC under the Securities Act for the securities offered under this prospectus
(the "Form S-3 Registration Statement"). The Form S-3 Registration Statement, including the exhibits to the Form S-3
Registration Statement, contains additional information about us and the securities offered by this prospectus. The rules and regulations
of the SEC allow us to omit from this prospectus certain information that is included in the Form S-3 Registration Statement. For
further information about us and our securities, you should review the Form S-3 Registration Statement and the exhibits filed with
the Form S-3 Registration Statement.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate into this
prospectus by reference the information we file with it, which means that we can disclose important information to you by referring
you to the documents containing that information. The information incorporated by reference is considered to be part of this prospectus,
and information that we later file with the SEC will automatically update and, where applicable, modify or supersede that information.
We incorporate by reference the following
documents previously filed with the SEC:
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our Annual Report on Form 10-K for the year ended December 31, 2016 filed with the SEC on March 9, 2017;
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the information included in our definitive proxy statement on Schedule 14A for our 2017 Annual Meeting of Stockholders,
filed with the SEC on April 20, 2017, to the extent incorporated by reference in Part III of the Annual Report on Form 10-K
for the year ended December 31, 2016;
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our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 filed with the SEC on May 3, 2017;
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our Quarterly Report on Form 10-Q for the quarter ended June 30, 2017 filed with the SEC on August 3, 2017;
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our Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 filed with the SEC on November 2, 2017;
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our Current Reports on Form 8-K filed with the SEC on March 2, 2017, March 31, 2017, April 11, 2017, April 19, 2017, May 1,
2017, May 25, 2017, June 2, 2017, June 27, 2017, July 27, 2017, August 8, 2017, September 6, 2017, September 15, 2017, September
21, 2017, September 26, 2017, November 13, 2017, and December 13, 2017, respectively; and
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the description of our common stock contained in our registration statement on Form 8-A filed on February 25, 2015 pursuant
to Section 12 of the Exchange Act, as amended by a Form 8-A/A filed on July 27, 2017 and including any amendment or report filed
for the purpose of updating such description.
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All documents filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of the Form S-3 Registration Statement, including all
such documents we may file with the SEC after the date of the Form S-3 Registration Statement and prior to the effectiveness of
the registration statement, and prior to the filing of a post-effective amendment to the Form S-3 Registration Statement
which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any
subsequently filed document that is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Notwithstanding the foregoing, no portion
of any document that is “furnished” but not “filed” in accordance with SEC rules under Exchange Act shall
be deemed to be incorporated by reference into this prospectus. Any statement contained in this prospectus or in a document incorporated
by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that
a statement contained in this prospectus or in any other subsequently filed document that is incorporated by reference herein modifies
or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
You may request a copy of any of these filings
from us at no cost by writing or calling our Chief Financial Officer at the following address or telephone number: Iovance Biotherapeutics,
Inc., 999 Skyway Road, Suite 150, San Carlos, California 94070; Telephone: (650) 260-7120.
PROSPECTUS
$250,000,000
IOVANCE BIOTHERAPEUTICS,
INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
______________
The date of this prospectus
is .
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the expenses
to be paid by us, other than underwriting discounts and commissions, in connection with the offering of the securities described
in this registration statement.
Securities and Exchange Commission registration fee
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$
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31,125
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FINRA filing fee
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*
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Printing and engraving expenses
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*
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The NASDAQ Global Market listing fees
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Transfer agent and registrar fees
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*
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Miscellaneous expenses
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*
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Total
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$
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*
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*
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These fees and expenses will be based upon the number of
securities offerings and the amount of securities offered and accordingly cannot be estimated at this time.
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Item 15.
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Indemnification of Directors and Officers.
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Our certificate of incorporation provides
that, to the maximum extent permitted under applicable law, none of our directors will have any personal liability to us or our
stockholders for damages for breach of fiduciary duty as a director.
Section 102(b)(7) of the Delaware General
Corporation Law allows a corporation to provide in its certificate of incorporation that a director of the corporation will not
be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except
where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated
a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an
improper personal benefit. Our certificate of incorporation provides for this limitation of liability.
Section 145 of the Delaware General Corporation
Law provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made,
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests,
provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is
adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees)
which such officer or director has actually and reasonably incurred.
Our certificate of incorporation and bylaws
provide for indemnification of our officers and directors to the fullest extent permitted by the Delaware General Corporation Law.
We also have entered into indemnification
agreements with our directors and certain of our officers in which we agree, among other things, to indemnify them against certain
liabilities that may arise by reason of their status or service as officers or directors.
We maintain a general liability insurance
policy that covers certain liabilities of our officers and directors arising out of claims based on acts or omissions in their
capacities as such.
The exhibits listed on the Exhibit Index
immediately following the signature page hereto are filed herewith or incorporated by reference herein, and such exhibit list is
incorporated in this Item 16 by reference.
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(a)
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The undersigned registrant hereby undertakes:
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(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
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(ii) To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however
, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(4)
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That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the
date the filed prospectus was deemed part of and included in this registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of this registration statement
relating to the securities in this registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof;
provided, however
, that no statement made in
a registration statement or prospectus that is part of this registration statement or made in a document incorporated or deemed
incorporated by reference into this registration statement or prospectus that is a part of this registration statement will, as
to a purchaser with a time of contract sale prior to such effective date, supersede or modify any statement that was made in this
registration statement or prospectus that was a part of this registration statement or made in any such document immediately prior
to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations
prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of San Carlos, State of California, on December 28, 2017.
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IOVANCE BIOTHERAPEUTICS, INC.
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By:
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/s/ MARIA FARDIS
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Maria Fardis, Ph.D., M.B.A.
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President and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that
each individual whose signature appears below constitutes and appoints Maria Fardis, Ph.D., M.B.A. and Timothy E. Morris, and each
of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for the same offering covered by this registration statement that
is to be effective on filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and all post-effective amendments
thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them,
or his or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on December 28, 2017.
Signature
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Title
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/s/ MARIA FARDIS
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President and Chief Executive Officer and Director
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Maria Fardis, Ph.D., M.B.A.
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(Principal Executive Officer)
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/s/ TIMOTHY E. MORRIS
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Chief Financial Officer
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Timothy E. Morris
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(Principal Financial and
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Accounting Officer)
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/s/ MERRILL A. MCPEAK
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Director
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Merrill A. McPeak
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/s/ JAY VENKATESAN
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Director
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Jay Venkatesan
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/s/ SANFORD J. HILLSBERG
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Director
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Sanford J. Hillsberg
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/s/ WAYNE ROTHBAUM
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Director
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Wayne
Rothbaum
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/s/ RYAN MAYNARD
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Director
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Ryan Maynard
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/s/ IAIN DUKES
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Director
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Iain Dukes
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EXHIBIT INDEX
* If applicable, to be filed subsequent
to the effectiveness of this registration statement (1) by an amendment to this registration statement or (2) as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference.
** If
applicable, to be filed subsequent to the effectiveness of this registration statement under the electronic form type 305B2 pursuant
to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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