Filed
Pursuant to Rule 424(b)(5)
Registration
Statement No. 333-224728
Prospectus Supplement
(To Prospectus dated
May 15, 2018)
Up to $50,000,000 of Shares
Common Stock
We
have entered into an Amended and Restated At Market Issuance Sales Agreement, dated February 9, 2021, or the sales agreement,
with B. Riley Securities, Inc., or B. Riley, and A.G.P./Alliance Global Partners, or AGP and together with B. Riley, the sales
agents, relating to the sale of shares of our common stock offered by this prospectus supplement and the accompanying base prospectus.
In accordance with the terms of the sales agreement, under this prospectus supplement and accompanying base prospectus we may offer
and sell shares of our common stock, having an aggregate offering price of up to $50,000,000 from time to time through or directly
to the sales agents, with each acting as sales agent or principal. The sales agreement amended and restated the original
sales agreement, dated August 5, 2016, as amended by amendment no. 1 thereto, dated May 7, 2018, by and between us and B. Riley,
or the original sales agreement, to include AGP as an additional sales agent. As of the date
of this prospectus supplement, we have sold an aggregate of 65,685,544 shares of our common stock (on a post 2018 split basis)
having an aggregate offering price of $63,601,894 under the sales agreement and the original sales agreement with B. Riley and/or
AGP as sales agent.
On
February 18, 2021, the last reported sale price of our common stock on the NYSE American LLC was $0.882 per share.
Sales of our common stock, if any, under
this prospectus supplement will be made by any method permitted that is deemed an “at the market offering” as defined
in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). The sales agents are not required
to sell any specific amount but will act as our sales agents using commercially reasonable efforts consistent with their respective
normal trading and sales practices. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The sales agents will be entitled to compensation
at a commission rate equal to up to 3.0% of the gross sales price per share sold. In connection with the sale of the common stock
on our behalf, each sales agent will be deemed to be an “underwriter” within the meaning of the Securities Act and
the compensation of the sales agents will be deemed to be underwriting commissions or discounts. We have also agreed to provide
indemnification and contribution to the sales agents with respect to certain liabilities, including liabilities under the Securities
Act.
Investing in our common stock involves
a high degree of risk. Before making an investment decision, please read the information under the heading “Risk Factors”
beginning on page S-3 of this prospectus supplement and in the documents incorporated by reference into this prospectus supplement,
and the accompanying base prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy
of this prospectus supplement or the accompanying base prospectus. Any representation to the contrary is a criminal offense.
B. RILEY SECURITIES
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A.G.P.
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The date of this prospectus supplement is
February 19, 2021.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus supplement and the accompanying
base prospectus are part of a “shelf” registration statement on Form S-3 (File No. 333-224728) that we filed with the
U.S. Securities and Exchange Commission, or the “SEC,” on May 7, 2018, and was declared effective on May 15, 2018.
This prospectus supplement describes the
specific terms of this offering and also adds to and updates information contained in the accompanying base prospectus and the
documents incorporated by reference into this prospectus supplement and the accompanying base prospectus. The accompanying base
prospectus, including the documents incorporated by reference, provides more general information. To the extent there is a conflict
between the information contained in this prospectus supplement, on the one hand, and the information contained in the accompanying
base prospectus or in any document incorporated by reference that was filed with the SEC before the date of this prospectus supplement,
on the other hand, you should rely on the information in this prospectus supplement. If any statement in one of these documents
is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference
in the accompanying base prospectus — the statement in the document having the later date modifies or supersedes the earlier
statement. You should read this prospectus supplement and the accompanying base prospectus, including the information incorporated
by reference and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety
before making an investment decision.
You should rely only on the information
contained or incorporated by reference in this prospectus supplement and the accompanying base prospectus, along with the information
contained in any free writing prospectus that we have authorized for use in connection with this offering. We have not authorized
anyone to provide you with different or additional information. You should assume that the information appearing in this prospectus
supplement, the accompanying base prospectus, the documents incorporated by reference in this prospectus supplement and the accompanying
base prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering is accurate
only as of the respective dates of those documents. Our business, financial condition, results of operations and prospects may
have changed since those dates.
We further note that the representations,
warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference
in this prospectus supplement or the accompanying base prospectus were made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to
be a representation, warranty or covenant to you. Moreover, such representations, warranties and covenants were accurate only as
of the date when made; therefore, such representations, warranties and covenants should not be relied on as accurate representations
of the current state of our affairs.
Unless we have indicated otherwise, or
the context otherwise requires, references in this prospectus supplement and the accompanying base prospectus to “Synthetic,”
the “Company,” “we,” “us” and “our” refer to Synthetic Biologics, Inc. and its
subsidiaries.
This prospectus supplement, the accompanying
base prospectus and the information incorporated by reference includes trademarks, service marks and trade names owned by us or
other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus supplement
or the accompanying base prospectus are the property of their respective owners.
We
are offering to sell, and are seeking offers to buy, the common stock only in jurisdictions where such offers and sales are permitted.
No action has been or will be taken in any jurisdiction by us or the sales agents that would permit a public offering of the common
stock or the possession or distribution of this prospectus supplement and the accompanying base prospectus in any jurisdiction,
other than in the United States. Persons outside the United States who come into possession of this prospectus supplement and the
accompanying base prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common
stock and the distribution of this prospectus supplement and the accompanying base prospectus outside the United States. This prospectus
supplement and the accompanying base prospectus do not constitute, and may not be used in connection with, an offer to sell, or
a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying base prospectus by
any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This prospectus supplement and the accompanying
prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”)
utilizing a “shelf” registration process. Under the shelf registration process, we may offer shares of our common stock
having an aggregate offering price of up to $200,000,000 under the accompanying base prospectus. Under this prospectus supplement
and the accompanying base prospectus, we may offer shares of our common stock having an aggregate offering price of up to $50,000,000
from time to time at prices and on terms to be determined by market conditions at the time of offering.
We provide information to you about this
offering of shares of our common stock in two separate documents that are bound together: (1) this prospectus supplement, which
describes the specific details regarding this offering; and (2) the accompanying base prospectus, which provides general information,
some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both
documents combined. If information in this prospectus supplement is inconsistent with the accompanying base prospectus, you should
rely on this prospectus supplement. However, if any statement in one of these documents is inconsistent with a statement in another
document having a later date—for example, a document incorporated by reference in this prospectus supplement—the statement
in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results
of operations and prospects may have changed since the earlier dates. This prospectus supplement, the accompanying base prospectus
and the documents incorporated into each by reference include important information about us, the securities being offered and
other information you should know before investing in our securities. You should also read and consider information in the documents
we have referred you to in the section of this prospectus supplement and the accompanying base prospectus entitled “Where
You Can Find More Information.”
You should rely only on this prospectus,
the accompanying base prospectus and the information incorporated or deemed to be incorporated by reference therein. We have not
and the sales agents have not authorized anyone to provide you with information that is in addition to or different from that contained
or incorporated by reference in this prospectus supplement and the accompanying base prospectus. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not offering to sell these securities in any jurisdiction where
the offer or sale is not permitted. You should not assume that the information contained or incorporated by reference in this prospectus
supplement or the accompanying base prospectus is accurate as of any date other than as of the date of this prospectus supplement
or the accompanying base prospectus, as the case may be, or in the case of the documents incorporated by reference, the date of
such documents regardless of the time of delivery of this prospectus supplement and the accompanying base prospectus or any sale
of our securities. Our business, financial condition, liquidity, results of operations and prospects may have changed since those
dates.
We further note that the representations,
warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference
in the accompanying base prospectus were made solely for the benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty
or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
No action has been or will be taken in
any jurisdiction by us or the sales agents that would permit a public offering of the common stock or the possession or distribution
of this prospectus supplement and the accompanying base prospectus in any jurisdiction, other than in the United States. Persons
outside the United States who come into possession of this prospectus supplement and the accompanying base prospectus must inform
themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus
supplement and the accompanying base prospectus outside the United States. This prospectus supplement and the accompanying base
prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any
securities offered by this prospectus supplement and the accompanying base prospectus by any person in any jurisdiction in which
it is unlawful for such person to make such an offer or solicitation.
INDUSTRY AND MARKET
DATA
We obtained the industry and market data
in this prospectus supplement from our own research as well as from industry and general publications, surveys and studies conducted
by third parties. These data involve a number of assumptions and limitations, and you are cautioned not to give undue weight to
such estimates. In addition, projections, assumptions and estimates of our future performance and the future performance of the
industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including
those described in “Risk Factors” and elsewhere in this prospectus supplement and in the documents incorporated by
reference in this prospectus supplement. These and other factors could cause results to differ materially from those expressed
in the estimates made by the independent parties and by us.
PROSPECTUS SUPPLEMENT
SUMMARY
We are a diversified clinical-stage company
developing therapeutics designed to treat gastrointestinal (GI) diseases in areas of high unmet need. Our lead clinical development
candidates are: (1) SYN-004 (ribaxamase) which is designed to degrade certain commonly used intravenous (IV) beta-lactam antibiotics
within the GI tract to prevent microbiome damage, Clostridioides difficile infection (CDI), overgrowth of pathogenic
organisms, the emergence of antimicrobial resistance (AMR), and acute graft-versus-host-disease (aGVHD) in allogeneic hematopoietic
cell transplant (HCT) recipients, and (2) SYN-020, a recombinant oral formulation of the enzyme intestinal alkaline phosphatase
(IAP) produced under cGMP conditions and intended to treat both local GI and systemic diseases.
We were also developing SYN-010 to reduce
the impact of methane-producing organisms in the gut microbiome to treat an underlying cause of irritable bowel syndrome with constipation
(IBS-C). On September 30, 2020, Cedars Sinai Medical Center’s (CSMC) (the Company’s SYN-010 clinical development partner)
informed the Company that it agreed to discontinue the ongoing Phase 2b investigator-sponsored clinical study of SYN-010 in IBS-C
patients. Based on the results of a planned interim futility analysis, it was concluded that although SYN-010 was well tolerated,
it was unlikely to meet its primary endpoint by the time enrollment is completed. On November 9, 2020, we and CSMC mutually agreed
to terminate the exclusive license agreement (the “Exclusive License Agreement”) that we and our subsidiary, Synthetic
Biomics, Inc. entered into with CSMC date December 5, 2013 and all amendments thereto and the clinical trial agreement relating
to SYN-010.
As a result of the decision to discontinue
the ongoing Phase 2b investigator-sponsored clinical study of SYN-010, we plan to explore and evaluate a range of strategic options,
which may include: in-licensing opportunities; evaluation of potential acquisitions; or other potential strategic transactions.
In the meantime, we remain focused on working with our clinical development partners to advance the planned Phase 1b/2a clinical
trial of SYN-004 (ribaxamase) in allogeneic hematopoietic cell transplant (HCT) patients, and advancing the clinical development
program for SYN-020 intestinal alkaline phosphatase (IAP) in multiple potential indications. Both of these programs are unrelated
to SYN-010, and therefore, we remain encouraged by the outlook and potential for these programs in addressing large, underserved
markets.
We are in close contact with our clinical
sites and are assessing the impact of COVID-19 on our studies and current timelines and costs. To maximize patient
participation and safeguard the trials integrity and patient safety, initiation of the Company’s Phase 1b/2a clinical
study of SYN-004 to be conducted by Washington University in Allogeneic HCT Recipients is deferred until Q1 2021, pandemic conditions
permitting. If the COVID-19 pandemic continues and persists for an extended period of time, we could experience significant disruptions
to our clinical development timeline, which would adversely affect our business, financial condition, results of operations and
growth prospects.
In response to the spread of COVID-19 as
well as public health directives and orders, we have implemented a number of measures designed to ensure employee safety and business
continuity. We have limited access to our offices and are allowing our administrative employees to continue their work outside
of our offices in order to support the community efforts to reduce the transmission of COVID-19 and protect employees, complying
with guidance from federal, state and local government and health authorities. The effects of the governmental orders and our work-from-home
policies may negatively impact productivity, disrupt our business and delay our clinical programs and timelines, the magnitude
of which will depend, in part, on the length and severity of the restrictions and other limitations on our ability to conduct our
business in the ordinary course.
Company History
Our predecessor, Sheffield Pharmaceuticals,
Inc., was incorporated in 1986, and in 2006 engaged in a reverse merger with Pipex Therapeutics, Inc., a Delaware corporation formed
in 2001. After the merger, we changed our name to Pipex Pharmaceuticals, Inc., and in October 2008 we changed our name to Adeona
Pharmaceuticals, Inc. On October 15, 2009, we engaged in a merger with a wholly owned subsidiary for the purpose of reincorporating
in the State of Nevada. After reprioritizing our focus on the emerging area of synthetic biologics and entering into our first
collaboration with Intrexon, we amended our Articles of Incorporation to change our name to Synthetic Biologics, Inc. on February
15, 2012.
Corporate Information
Our executive offices are located at 9605
Medical Center Drive, Suite 270, Rockville, Maryland 20850. Our telephone number is (301) 417-4364, and our website address is www.syntheticbiologics.com.
The information contained on our website is not part of, and should not be construed as being incorporated by reference into this
prospectus supplement.
For further information regarding us and
our financial information, you should refer to our recent filings with the SEC. See “Where You Can Find More Information.”
THE OFFERING
Common stock offered by us pursuant to this prospectus supplement
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Shares of our common stock having an aggregate offering price of up to $50,000,000.
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Common stock to be outstanding after this offering (1)
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Up to 161,912,427 shares, assuming sales of 56,689,342 shares of our common stock in this offering at an offering price of $0.882 per share, which was the last reported sale price of our common stock on the NYSE American on February 18, 2021. The actual number of shares issued will vary depending on the sales price under this offering.
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Manner of offering
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“At the market offering” that may be made from time to time on the NYSE American or other market for our common stock in the United States through the sales agents. See the section entitled “Plan of Distribution” on page S-9 of this prospectus supplement.
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Use of proceeds
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We intend to use the net proceeds, if any,
from this offering for general corporate purposes, which may include, among other things, for clinical trials for our product candidates,
paying general and administrative expenses and accounts payable, increasing our working capital, funding research and development
and funding capital expenditures.
We may also use a portion of the net proceeds
for licensing or acquiring intellectual property to incorporate into our products and product candidates or our research and development
programs and to in-license, acquire or invest in complementary businesses or products, although we have no commitments or agreements
with respect to any such licenses, acquisitions or investments as of the date of this prospectus supplement. See “Use of
Proceeds” on page S-6.
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Risk factors
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You should read the “Risk Factors” section of this prospectus supplement and in the documents incorporated by reference into this prospectus supplement for a discussion of factors to consider before deciding to purchase shares of our common stock.
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NYSE American symbol
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SYN
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(1)
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Based on 105,223,086 shares of our common outstanding as of February 18, 2021 and includes (i)
an additional 62,139,713 shares of our common stock issued in “at the market” offerings pursuant to the amended
and restated and original sales agreement through B. Riley and/or AGP as sales
agent subsequent to September 30, 2020; (ii) the issuance 8,988,149 shares of our common stock subsequent to September 30,
2020 upon the conversions of shares of our Series A Preferred Stock, (iii) the issuance 3,605,217 shares of our common stock
subsequent to September 30, 2020 upon the conversions of our Series B Preferred Stock and (iv) the issuance of 10,647,051
shares of our common stock subsequent to September 30, 2020 upon the exercise of previously issued warrants and excludes
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3,997,418 shares issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $2.35 per share;
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2,460,000 shares of common stock which were reserved for future equity awards that may be granted in the future under our equity incentive plans;
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7,352,948 shares of our common stock reserved for issuance upon the exercise of outstanding warrants, each with a weighted-average exercise price of $0.69 per share
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RISK FACTORS
Investing in our common stock involves
a high degree of risk. This prospectus supplement does not describe all of those risks. You should consider the risk factors described
in this prospectus supplement under the caption “Risks Related to This Offering and Our Securities” below, as well
as the those described under the caption “Risk Factors” in the documents incorporated by reference herein, including
our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on February 20,2020 any
subsequent Quarterly Reports on Form 10-Q/10-Q/A or Current Reports on Form 8-K/8-K/A, and all other information contained or incorporated
by reference into this prospectus supplement and the accompanying base prospectus before deciding whether to purchase any of the
common stock being offered under this prospectus supplement. Each of the risks described below could adversely affect our business,
operating results and financial condition, as well as adversely affect the value of an investment in our common stock, and the
occurrence of any of these risks might cause you to lose all or part of your investment. Moreover, the risks described below are
not the only ones that we face. Additional risks not presently known to us or that we currently believe are immaterial may also
significantly impair our business operations. Please also read carefully the section below titled “Special Note Regarding
Forward-Looking Statements.”
Risks Relating to the Offering
Our management team may invest or
spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield a significant return.
Our management will have broad discretion
over the use of proceeds from this offering. The net proceeds from this offering will be used primarily for general corporate purposes,
which may include, among other things, for clinical trials for our product candidates, paying general and administrative expenses
and accounts payable, increasing our working capital, funding research and development and funding capital expenditures. We may
also use a portion of the net proceeds for licensing or acquiring intellectual property to incorporate into our products and product
candidates or our research and development programs and to in-license, acquire or invest in other businesses or products,
although we have no commitments or agreements with respect to any such licenses, acquisitions or investments as of the date of
this prospectus supplement. Our management will have considerable discretion in the application of the net proceeds, and you will
not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. The
net proceeds may be used for corporate purposes that do not increase our operating results or enhance the value of our common stock.
The failure of our management to use these funds effectively could have a material adverse effect on our business, cause the market
price of our common stock to decline and impair the commercialization of our products and/or delay the development of our product
candidates. Pending their use, we may invest the net proceeds from this offering in short-term, investment-grade, interest-bearing
instruments and U.S. government securities. These investments may not yield a favorable return to our stockholders.
If you purchase shares of our common
stock sold in this offering, you will experience immediate and substantial dilution in the net tangible book value of your shares.
In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution
to investors.
The price per share of our common stock
being offered may be higher than the net tangible book value per share of our outstanding common stock prior to this offering.
Assuming that an aggregate of 56,689,342 shares of our common stock are sold at a price of $0.882 per share, the last reported
sale price of our common stock on the NYSE American on February 18, 2021, new investors in this offering will incur immediate dilution
of $0.202 per share. For a more detailed discussion of the foregoing, see the section entitled “Dilution” below. To
the extent outstanding stock options or warrants are exercised, there will be further dilution to new investors.
You may experience future dilution
as a result of future equity offerings.
In order to raise additional capital, we
may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common
stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any
other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing
shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell
additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may
be higher or lower than the price per share paid by investors in this offering.
Because we do not intend to declare
cash dividends on our shares of common stock in the foreseeable future, stockholders must rely on appreciation of the value of
our common stock for any return on their investment.
We have never declared or paid cash dividends
on our common stock. We currently anticipate that we will retain future earnings for the development, operation and expansion of
our business and do not anticipate declaring or paying any cash dividends on our common stock in the foreseeable future. In addition,
the terms of any existing or future preferred stock or debt agreements may preclude us from paying dividends. As a result, we expect
that only appreciation of the price of our common stock, if any, will provide a return to investors in this offering for the foreseeable
future.
Resales of our common stock in the
public market during this offering by our stockholders may cause the market price of our common stock to fall.
We may issue common stock from time to
time in connection with this offering. This issuance from time to time of these new shares of our common stock, or our ability
to issue these shares of common stock in this offering, could result in resales of our common stock by our current stockholders
concerned about the potential dilution of their holdings. In turn, these resales could have the effect of depressing the market
price for our common stock.
The shares of common stock offered
under this prospectus supplement and the accompanying base prospectus may be sold in “at the market” offerings, and
investors who buy shares at different times will likely pay different prices.
Investors who purchase shares under this
prospectus supplement and the accompanying base prospectus at different times will likely pay different prices, and so may experience
different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices,
and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience declines in the value of their
shares as a result of share sales made at prices lower than the prices they paid.
The actual number of shares we will
issue under the sales agreement at any one time or in total, is uncertain.
Subject to certain limitations in the sales
agreement and compliance with applicable law, we have the discretion to deliver placement notices to the sales agents at any time
throughout the term of the sales agreement. The number of shares that are sold by the sales agents as our sales agents after we
deliver a placement notice will fluctuate based on the market price of the common stock and the trading volume of our common stock
during the sales period and limits we set with each sales agent.
Our stock price has fluctuated in the past, has recently
been volatile and may be volatile in the future, and as a result, investors in our common stock could incur substantial losses.
Our stock price has fluctuated in the past,
has recently been volatile and may be volatile in the future. By way of example, on October 2, 2020, the price of our common stock
closed at $0.32 per share while on February 18, 2021, our stock price closed at $0.882 per share with no discernable announcements
or developments by the company or third parties. On January 5, 2021, the intra-day sales price of our common stock fluctuated between
a reported low sale price of $0.93 and a reported high sales price of $1.70. We may incur rapid and substantial decreases in our
stock price in the foreseeable future that are unrelated to our operating performance or prospects. In addition, the recent outbreak
of the novel strain of coronavirus (COVID-19) has caused broad stock market and industry fluctuations. The stock market in general
and the market for biotechnology and pharmaceutical companies in particular have experienced extreme volatility that has often
been unrelated to the operating performance of particular companies. As a result of this volatility, investors may experience losses
on their investment in our common stock. The market price for our common stock may be influenced by many factors, including the
following:
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investor reaction to our business strategy;
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the success of competitive products or technologies;
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our continued compliance with the listing standards of the NYSE American;
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regulatory or legal developments in the United States and other countries, especially changes in laws or regulations applicable
to our products;
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results of our clinical trials;
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actions taken by regulatory agencies with respect to our products, clinical studies, manufacturing process or sales and marketing
terms;
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variations in our financial results or those of companies that are perceived to be similar to us;
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the success of our efforts to acquire or in-license additional products or product candidates;
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developments concerning our collaborations or partners;
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developments or disputes concerning patents or other proprietary rights, including patents, litigation matters and our ability
to obtain patent protection for our products;
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our ability or inability to raise additional capital and the terms on which we raise it;
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declines in the market prices of stocks generally;
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trading volume of our common stock;
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sales of our common stock by us or our stockholders;
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general economic, industry and market conditions; and
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other events or factors, including those resulting from such events,
or the prospect of such events, including war, terrorism and other international conflicts, public health issues including health
epidemics or pandemics, such as the recent outbreak of the novel coronavirus (COVID-19), and natural disasters such as fire, hurricanes,
earthquakes, tornados or other adverse weather and climate conditions, whether occurring in the United States or elsewhere, could
disrupt our operations, disrupt the operations of our suppliers or result in political or economic instability.
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These broad market and industry factors
may seriously harm the market price of our common stock, regardless of our operating performance. Further, recent increases are
significantly inconsistent with any improvements in actual or expected operating performance, financial condition or other indicators
of value, including our loss per share of $0.98 and $0.52 for the year ended December 31, 2019 and the nine months ended September
30, 2020. Since the stock price of our common stock has fluctuated in the past, has been recently volatile and may be volatile
in the future, investors in our common stock could incur substantial losses. In the past, following periods of volatility in the
market, securities class-action litigation has often been instituted against companies. Such litigation, if instituted against
us, could result in substantial costs and diversion of management’s attention and resources, which could materially and adversely
affect our business, financial condition, results of operations and growth prospects. There can be no guarantee that our stock
price will remain at current prices or that future sales of our common stock will not be at prices lower than those sold to investors.
Additionally, recently, securities of certain
companies have experienced significant and extreme volatility in stock price due short sellers of shares of common stock,
known as a “short squeeze.” These short squeezes have caused extreme volatility in those companies and in the
market and have led to the price per share of those companies to trade at a significantly inflated rate that is disconnected from
the underlying value of the company. Many investors who have purchased shares in those companies at an inflated rate face the risk
of losing a significant portion of their original investment as the price per share has declined steadily as interest in those
stocks have abated. While we have no reason to believe our shares would be the target of a short squeeze, there can be no assurance
that we won’t be in the future, and you may lose a significant portion or all of your investment if you purchase our shares
at a rate that is significantly disconnected from our underlying value.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying
base prospectus and the documents we file with the SEC that are incorporated by reference herein and therein contain “forward-looking
statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), these statements reflect our current views with respect to our ongoing and planned
clinical trials, business strategy, business plan, financial performance and other future events. These statements include forward-looking
statements both with respect to us, specifically, and the biotechnology sector, in general. We make these statements pursuant to
the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Statements that include the words “expect,”
“intend,” “plan,” “believe,” “project,” “estimate,” “may,”
“should,” “anticipate,” “will” and similar statements of a future or forward-looking nature
identify forward-looking statements for purposes of the federal securities laws or otherwise.
All forward-looking statements involve
inherent risks and uncertainties, and there are or will be important factors that could cause actual results to differ materially
from those indicated in these statements. We believe that these factors include, but are not limited to, those factors set forth
under the caption “Risk Factors” in this prospectus supplement and in the accompanying base prospectus and under the
captions “Risk Factors,” “Business,” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” in our most recent Annual Report on Form 10-K and our subsequent Quarterly Reports
on Form 10-Q/10-Q/A, all of which you should review carefully. Please consider our forward-looking statements in light of those
risks as you read this prospectus supplement and the accompanying base prospectus. It is not possible for our management to predict
all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any forward-looking statements we may make. Given these uncertainties,
you should not place undue reliance on these forward-looking statements.
You should not assume that the information
contained in this prospectus supplement is accurate as of any date other than the date on the front of this prospectus supplement,
or that any information incorporated by reference into this prospectus supplement is accurate as of any date other than the date
of the document so incorporated by reference. Except as required by law, we assume no obligation to update these forward-looking
statements publicly, or to update the reasons actual results could differ materially from those anticipated in these forward-looking
statements, even if new information becomes available in the future. Thus, you should not assume that our silence over time means
that actual events are bearing out as expressed or implied in such forward-looking statements.
If one or more of these or other risks
or uncertainties materializes, or if our underlying assumptions prove to be incorrect, actual results may vary materially from
what we anticipate. All subsequent written and oral forward-looking statements attributable to us or individuals acting on our
behalf are expressly qualified in their entirety by this Note. Before purchasing any shares of common stock, you should consider
carefully all of the factors set forth or referred to in this prospectus supplement and in the accompanying base prospectus that
could cause actual results to differ.
USE OF PROCEEDS
We may issue and sell shares of our common
stock having aggregate gross proceeds of up to $50,000,000 from time to time under the sales agreement. Because there is no minimum
offering amount required as a condition to close this offering, the actual total offering amount, commissions and proceeds to us,
if any, are not determinable at this time. The amount of proceeds from this offering will depend upon the number of shares of our
common stock sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares
under or fully utilize the sales agreement with the sales agents as a source of financing. We intend to use the net proceeds, if
any, from this offering for general corporate purposes, which may include, among other things, for clinical trials for our product
candidates, paying general and administrative expenses and accounts payable, increasing our working capital, funding research and
development and funding capital expenditures. We may also use a portion of the net proceeds for licensing or acquiring intellectual
property to incorporate into our products and product candidates or our research and development programs and to in-license, acquire
or invest in other businesses or products, although we have no commitments or agreements with respect to any such licenses,
acquisitions or investments as of the date of this prospectus supplement.
DIVIDEND POLICY
We have never paid cash dividends on
our common stock. Moreover, we do not anticipate paying periodic cash dividends on our common stock for the foreseeable
future. We intend to use all available cash and liquid assets in the operation and growth of our business, subject to terms
of any preferred stock or debt securities. Any future determination about the payment of dividends will be made at the
discretion of our board of directors and will be subject to the rights of any outstanding preferred stock and will depend
upon our earnings, if any, capital requirements, operating and financial conditions and on such other factors as our board of
directors deems relevant. The Series A Preferred Stock ranked senior to the shares of our common stock with respect to
dividend rights and holders of Series A Preferred Stock and was entitled to a cumulative dividend at the rate of 2.0% per
annum, payable quarterly in arrears, as set forth in the Certificate of Designation of Series A Convertible Preferred
Stock.
DILUTION
If you invest in our common stock, your
interest will be diluted immediately to the extent of the difference between the offering price and the adjusted net tangible book
value per share of our common stock after this offering.
Our net tangible book value on September
30, 2020 was approximately $3,932,000, or $0.20 per share. “Net tangible book value” is total assets minus the sum
of liabilities and intangible assets. “Net tangible book value per share” is net tangible book value divided by the
total number of shares outstanding.
Pro
forma net tangible book value per share represents the amount of our total tangible assets as adjusted to take into account: (i)
net cash proceeds of approximately $49,823,981 from the issuance of an additional 62,139,713 shares of our common stock in “at
the market” offerings pursuant to the amended and restated and original sales agreement through B. Riley and/or AGP as sales
agent; (ii) the issuance 8,988,149 shares of our common stock upon the conversions of shares of our Series A Preferred Stock, (iii)
the issuance 3,605,217 shares of our common stock upon the conversions of our Series B Preferred Stock and (iv) the net cash proceeds
of $7,346,465 from the issuance of 10,647,051 shares of our common stock upon the exercise of previously issued warrants, all subsequent
to September 30, 2020. After giving effect to these transactions, our pro forma net tangible book value per share as of September
30, 2020 would have been approximately $0.58 per share.
After giving effect to the foregoing transactions
and the sale of shares of common stock in this offering in the aggregate amount of $50,000,000 at an assumed approximate offering
price of $0.882 per share, which is the last reported sale price of our common stock on the NYSE American on February 18, 2021
and after deducting estimated offering commissions and estimated aggregate offering expenses payable by us, our pro forma as adjusted
net tangible book value as of September 30, 2020 would have been approximately $109,602,446 or $0.68 per share of common stock.
This represents an immediate increase in pro forma net tangible book value of $0.10 per
share to our existing stockholders and an immediate dilution in net tangible book value of $0.202 per share to investors participating
in this offering. The following table illustrates this dilution per share to investors participating in this offering:
Assumed public offering price per share
|
|
|
|
|
|
$
|
0.882
|
|
Pro forma net tangible book value per share as of September 30, 2020
|
|
$
|
0.58
|
|
|
|
|
|
Increase in pro forma net tangible book value per share attributable to new investors purchasing our common stock in this offering
|
|
$
|
0.10
|
|
|
|
|
|
Pro forma as adjusted net tangible book value per share after giving effect to this offering
|
|
|
|
|
|
$
|
0.68
|
|
Dilution per share to investors purchasing our common stock in this offering
|
|
|
|
|
|
$
|
0.202
|
|
The
above discussion and table is based on 19,842,955 shares of our common stock outstanding as of September 30, 2020 as adjusted for
the adjustments set forth above and excludes as of February 18, 2021:
|
·
|
3,997,418 shares issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $2.35 per share;
|
|
·
|
2,460,000 shares of common stock which were reserved for future equity awards that may be granted in the future under our equity incentive plans;
|
|
·
|
7,352,948 shares of our common stock reserved for issuance upon the exercise of outstanding warrants, each with a weighted-average exercise price of $0.69 per share
|
The above illustration of dilution per
share to investors participating in this offering assumes no exercise of outstanding options to purchase our common stock or outstanding
warrants to purchase shares of our common stock. To the extent that any of these outstanding options or warrants are exercised
or we issue additional shares under our equity incentive plans, there will be further dilution to new investors. In addition, we
may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
PLAN OF DISTRIBUTION
On February 9, 2021, we entered into the
sales agreement with B. Riley and AGP, which sales agreement replaced the original sales agreement between us and B. Riley. As
of the date of this prospectus supplement, we have sold an aggregate of 65,685,544 shares
of our common stock (on a post 2018 split basis) having an aggregate offering price of $63,601,894 under the sales agreement and
the original sales agreement pursuant to our effective shelf registration statement on Form S-3 (File No. 333-224728) and prior
prospectus supplements. In accordance with the terms of the sales agreement, under this prospectus supplement and accompanying
base prospectus we may offer and sell shares of our common stock, having an aggregate offering price of up to $50,000,000 from
time to time through or directly to B. Riley or AGP, with each acting as sales agent or principal.
The sales, if any, of shares made under
the sales agreement will be made by any method that is deemed an “at the market offering” as defined in Rule 415 promulgated
under the Securities Act, as amended. We may instruct the sales agents not to sell common stock if the sales cannot be effected
at or above the price designated by us from time to time. We or the sales agents may suspend the offering of common stock upon
notice and subject to other conditions.
The sales agents will offer our common
stock subject to the terms and conditions of the sales agreement as agreed upon by us and the sales agents. Each time we wish to
issue and sell common stock under the sales agreement, we will notify the sales agents of the number of shares to be issued, the
time period during which such sales are requested to be made, any limitation on the number of shares that may be sold in one day,
any minimum price below which sales may not be made and other sales parameters as we deem appropriate. Once we have so instructed
the sales agents, unless either the sales agent declines to accept the terms of the notice, the sales agents has agreed to use
their respective commercially reasonable efforts consistent with their respective normal trading and sales practices to sell such
shares up to the amount specified on such terms. The obligations of the sales agents under the sales agreement to sell our common
stock are subject to a number of conditions that we must meet.
We will pay the sales agents’ commissions
for their respective services in acting as agent in the sale of common stock. The sales agents will be paid a commission in an
amount equal to up to 3.0% of the gross sales price per share sold. Because there is no minimum offering amount required as a condition
to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at
this time. We have also agreed to reimburse the sales agents for certain specified expenses, including the fees and disbursements
of its legal counsel in an amount not to exceed $30,000. We estimate that the total expenses for the offering, excluding commissions
and reimbursements payable to the sales agents under the terms of the sales agreement, will be approximately $150,000.
Settlement for sales of common stock will
generally occur on the second business day following the date on which any sales are made, or on some other date that is agreed
upon by us and the sales agents in connection with a particular transaction, in return for payment of the net proceeds to us. There
is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In connection with the sale of the common
stock on our behalf, the sales agents will with respect to sales effected in an “at the market offering,” be deemed
to be an “underwriter” within the meaning of the Securities Act and the compensation of the sales agents will be deemed
to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to the sales agents against
certain civil liabilities, including liabilities under the Securities Act.
The offering of our common stock pursuant
to the sales agreement will terminate upon the earlier of (i) the sale of all of our common stock subject to the sales agreement,
or (ii) termination of the sales agreement as provided therein. We may terminate the sales agreement at any time upon five days’
prior notice to the sales agents and the sales agents may terminate the sales agreement at any time upon ten days’ prior
notice to us.
B. Riley and AGP and their respective affiliates
may in the future provide various investment banking and other financial services for us and our affiliates, for which services
they may in the future receive customary fees. To the extent required by Regulation M, B. Riley and AGP will not engage in any
market making activities involving our common stock while the offering is ongoing under this prospectus supplement.
This summary of the material provisions
of the sales agreement does not purport to be a complete statement of its terms and conditions. A copy of the sales agreement was
filed on February 10, 2021 with the SEC as Exhibit 1.1 to a Current Report on Form 8-K.
This prospectus supplement in electronic
format may be made available on websites maintained by the sales agents and the sales agents may distribute this prospectus supplement
electronically.
LEGAL MATTERS
Gracin & Marlow, LLP, New York, New
York is representing us in connection with the offering. The validity of the securities offered hereby will be passed upon for
us by Parsons Behle & Latimer, Reno, Nevada. Duane Morris LLP, New York, New York is acting as counsel for the sales agents
in connection with this offering.
As of the date of this prospectus supplement, an attorney of
Gracin & Marlow, LLP beneficially owns securities exercisable to purchase shares of our common stock that represent less
than 1% of our outstanding shares of common stock.
EXPERTS
The consolidated financial statements of
Synthetic Biologics, Inc. as of December 31, 2019 and 2018, and for the years then ended, incorporated by reference in this prospectus
supplement have been so incorporated in reliance on the report of BDO USA, LLP, an independent registered public accounting firm,
incorporated herein by reference, given on authority of said firm as experts in auditing and accounting. The report on the consolidated
financial statements contains an explanatory paragraph regarding our ability to continue as a going concern.
WHERE YOU CAN FIND
MORE INFORMATION
This prospectus supplement is part of a
registration statement on Form S-3 that we have filed with the SEC under the Securities Act. The rules and regulations of the SEC
allow us to omit from this prospectus supplement certain information included in the registration statement. For further information
about us and the securities we are offering under this prospectus supplement, you should refer to the registration statement and
the exhibits and schedules filed with the registration statement. With respect to the statements contained in this prospectus supplement
and the accompanying base prospectus regarding the contents of any agreement or any other document, in each instance, the statement
is qualified in all respects by the complete text of the agreement or document, a copy of which has been filed as an exhibit to
the registration statement.
We file reports, proxy statements and other
information with the SEC under the Exchange Act. The SEC maintains an Internet website that contains reports, proxy statements
and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
In addition, all of the documents incorporated by reference into this prospectus supplement may be accessed via the Internet at
our website: www.syntheticbiologics.com. We have not incorporated by reference into this prospectus supplement the
information on our website, and you should not consider it to be a part of this prospectus supplement.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate
by reference” the information we file with it which means that we can disclose important information to you by referring
you to those documents instead of having to repeat the information in this prospectus supplement. The information incorporated
by reference is considered to be part of this prospectus supplement, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents listed below and any future filings made with
the SEC (other than any portions of any such documents that are not deemed “filed” under the Exchange Act in accordance
with the Exchange Act and applicable SEC rules) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after (i) the date
of the initial registration statement and prior to the effectiveness of the registration statement, and (ii) the date of this prospectus
supplement and before the completion of the offerings of the shares of our common stock included in this prospectus supplement.
|
·
|
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on February 20, 2020 (File No. 001-12584);
|
|
·
|
Our current reports on Form 8-K and
Form 8-K/A (File No. 001-12584) filed with the SEC on January
7, 2020, February
7, 2020, August
5, 2020, September
18, 2020, October
2, 2020, November
12, 2020, November
17, 2020, November
18, 2020, November
24, 2020, December
22, 2020, December
31, 2020,
January 6, 2021, January
19, 2021, January
27, 2021, January
29, 2021, February
1, 2021, February
4, 2021, February
8, 2021, February 10,
2021, and February
12, 2021;
|
|
·
|
Our definitive proxy statement on Schedule 14A filed with the SEC on August 4, 2020 (File No. 001-12584); and
|
|
·
|
The description of our common stock set forth in our registration statement on Form 8-A12B, filed with the SEC on June 20, 2007 (File No. 000-12584), as updated by the description of our common stock filed as Exhibit 4.16 to our Annual Report on Form 10-K for the year ended December 31, 2019, including any amendments or reports filed for the purpose of updating such description.
|
Any statement contained in this prospectus
supplement or in a document incorporated or deemed to be incorporated by reference into this prospectus supplement will be deemed
to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained in this prospectus
supplement or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus supplement
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 supplement.
We will furnish without charge to you,
on written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus supplement
and the accompanying base prospectus but not delivered with the prospectus supplement, including exhibits which are specifically
incorporated by reference into such documents. You should direct any requests for documents to Synthetic Biologics, Inc., Attn:
Steven A. Shallcross, Chief Executive Officer and Chief Financial Officer, 9605 Medical Center Drive, Suite 270, Rockville, Maryland
20850, or telephoning us at (301) 417-4364.
You should rely only on information contained
in, or incorporated by reference into, this prospectus supplement and the accompanying base prospectus. We have not authorized
anyone to provide you with information different from that contained in this prospectus supplement or incorporated by reference
in this prospectus supplement or the accompanying base prospectus. We are not making offers to sell the securities in any jurisdiction
in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified
to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PROSPECTUS
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell up to $200,000,000
in the aggregate of the securities identified above from time to time in one or more offerings. This prospectus provides you with
a general description of the securities.
Each time we offer and sell securities,
we will provide a supplement to this prospectus that contains specific information about the offering and the amounts, prices
and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect
to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any
of our securities.
We may offer and sell the securities described
in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers,
or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities,
their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth,
or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus
entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be
sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering
of such securities.
This prospectus may not be used to
sell securities unless it is accompanied by a prospectus supplement.
INVESTING IN OUR SECURITIES INVOLVES
RISKS. SEE THE “RISK FACTORS” ON PAGE 8 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS
SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our common stock is listed on the NYSE
American LLC under the symbol “SYN.” The last reported sale price of our common stock on the NYSE American LLC on
May 3, 2018 was $0.23 per share. We urge prospective purchasers of our common stock to obtain current information about the market
prices of our common stock.
On February 22, 2018, the date we filed
our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, we became subject to the offering limits in General
Instruction I.B.6 of Form S-3. As of the date of this prospectus, the aggregate market value of our common stock held by non-affiliates
pursuant to General Instruction I.B.6 of Form S-3 is $44,622,699, which is calculated based on 114,799,845 shares of our common
stock outstanding held by non-affiliates and a price of $0.3887 per share, the closing price of our common stock on March 16,
2018, which is the highest closing sale price of our common stock on the NYSE American LLC within the prior 60 days of this prospectus.
During the prior 12 calendar month period that ends on and includes the date hereof, we have not offered or sold any shares of
our common stock pursuant to General Instruction I.B.6 to Form S-3.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or
adequacy of the prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 15,
2018
TABLE OF CONTENTS
You should rely only on the information
we have provided or incorporated by reference in this prospectus or in any prospectus supplement. We have not authorized anyone
to provide you with information different from that contained or incorporated by reference in this prospectus or in any prospectus
supplement. This prospectus and any prospectus supplement is an offer to sell only the securities offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. You should assume that the information contained in this prospectus
and in any prospectus supplement is accurate only as of their respective dates and that any information we have incorporated by
reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this
prospectus or any prospective supplement or any sale of securities. The registration statement containing this prospectus, including
the exhibits to the registration statement, provides additional information about us and the common stock offered under this prospectus.
The registration statement, including the exhibits and the documents incorporated herein by reference, can be read on the Securities
and Exchange Commission website or at the Securities and Exchange Commission offices mentioned under the heading “Where
You Can Find More Information.”
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the U.S. Securities and Exchange Commission, (the “SEC”), using a “shelf”
registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings
up to a total dollar amount of $200,000,000 of securities as described in this prospectus. We have provided to you in this prospectus
a general description of the securities we may offer. Each time that we offer and sell securities under this shelf registration
statement, we will, to the extent required by law, provide a prospectus supplement to this prospectus that will contain specific
information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or
more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any free writing prospectus that we may authorize to be provided to you may also add, update or change information
contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus
and the applicable prospectus supplement or any free writing prospectus, you should rely on the prospectus supplement or free
writing prospectus; provided that if any statement in one of these documents is inconsistent with a statement in another document
having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement
or any related free writing prospectus — the statement in the document having the later date modifies or supersedes the
earlier statement. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus
supplement, together with the additional information described under the heading “Where You Can Find More Information”
and “Incorporation of Certain Documents by Reference.”
Unless otherwise stated or the context
otherwise requires, references in this prospectus to “Synthetic” the “Company,” “we,” “our”
and “us” refer to Synthetic Biologics, Inc., a Nevada corporation, and its consolidated subsidiaries, unless otherwise
specified. When we refer to “you,” we mean the holders of the applicable series of securities.
INDUSTRY AND MARKET
DATA
We obtained the industry and market data
in this prospectus from our own research as well as from industry and general publications, surveys and studies conducted by third
parties. These data involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates.
In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which
we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described
in “Risk Factors” and elsewhere in this prospectus and in the documents incorporated by reference in this prospectus.
These and other factors could cause results to differ materially from those expressed in the estimates made by the independent
parties and by us.
PROSPECTUS SUMMARY
The
items in the following summary are described in more detail elsewhere in this prospectus and in the documents incorporated by
reference herein. This summary provides an overview of selected information and does not contain all the information you should
consider before investing in our common stock. Therefore, you should carefully read the entire prospectus, any prospectus supplement
and any free writing prospectus that we have authorized for use in connection with this offering, including the “Risk Factors”
section and other documents or information included or incorporated by reference in this prospectus and any prospectus supplement
before making any investment decision.
Our Business
We are a late-stage clinical company focused
on developing therapeutics designed to preserve the microbiome to protect and restore the health of patients. Our lead candidates
poised for Phase 3 development are: (1) SYN-004 (ribaxamase) which is designed to protect the gut microbiome from the effects
of certain commonly used intravenous (IV) beta-lactam antibiotics for the prevention of C. difficile infection (CDI), overgrowth
of pathogenic organisms and the emergence of antimicrobial resistance (AMR), and (2) SYN-010 which is intended to reduce the impact
of methane-producing organisms in the gut microbiome to treat an underlying cause of irritable bowel syndrome with constipation
(IBS-C). Our preclinical pursuits include an oral formulation of the enzyme intestinal alkaline phosphatase (IAP) to treat both
local GI disorders and systemic diseases as well as monoclonal antibody therapies for the prevention and treatment of pertussis,
and novel discovery stage biotherapeutics for the treatment of phenylketonuria (PKU).
Our Product Pipeline
C- Cedars-Sinai Medical Center Collaboration
I- Intrexon Collaboration
T- The University of Texas at Austin Collaboration
M – Scientific Collaboration with Massachusetts General
Hospital
Summary of Clinical and Preclinical
Programs
Therapeutic
Area
|
|
Product
Candidate
|
|
Status
|
|
|
|
|
|
Prevention of CDI, overgrowth
of pathogenic organisms and AMR (Degrade IV beta-lactam antibiotics)
|
|
SYN-004 (ribaxamase)
(oral enzyme)
|
|
·
Reported supportive Phase 1a/1b data (1Q 2015)
·
Reported supportive topline data from two Phase 2a clinical trials (4Q 2015 & 2Q 2016)
·
Initiated Phase 2b proof-of-concept clinical trial (3Q 2015)
·
Received USAN approval of the generic name “ribaxamase” for SYN-004 (July 2016)
·
Completed Enrollment of Phase 2b proof-of-concept clinical trial (3Q 2016)
·
Awarded contract by the CDC (4Q 2016)
·
Announced positive topline data from Phase 2b proof-of-concept clinical trial, including achievement of primary
endpoint of significantly reducing CDI (1Q 2017)
·
Announced additional results from Phase 2b proof-of-concept clinical trial demonstrating SYN-004 (ribaxamase) protected
and maintained the naturally occurring composition of gut microbes from antibiotic-mediated dysbiosis in treated patients
(2Q 2017)
·
Announced additional results from Phase 2b proof-of-concept clinical trial funded by a contract awarded by the
CDC, demonstrating that SYN-004 (ribaxamase) prevented significant change to the presence of certain AMR genes in the
gut resistome of patients receiving SYN-004 compared to placebo (3Q 2017)
·
Presented additional supportive results regarding several exploratory endpoints from Phase 2b proof-of-concept
clinical trial designed to evaluate SYN-004’s (ribaxamase) ability to protect the gut microbiome from opportunistic
bacterial infections and prevent the emergence of antimicrobial resistance (AMR) in the gut microbiome (4Q 2017)
·
Reached preliminary agreement with the FDA on a proposed Phase 3 clinical trial synopsis, including de-coupled
co-primary endpoints designed to evaluate efficacy separate from safety in a patient population being treated with a representative
selection of IV-beta-lactam antibiotics (1H 2018)
·
Anticipated End of Phase 2 meeting with FDA to solidify remaining elements of planned Phase 3 clinical trial (2H
2018)
·
Plan to initiate Phase 3 clinical trial(s) (2H 2019)
|
Treatment of IBS-C
|
|
SYN-010
(oral modified-release
lovastatin lactone)
|
|
·
Collaboration with Cedars-Sinai Medical Center
·
Reported supportive topline data from two Phase 2 clinical trials (4Q 2015 & 1Q 2016)
·
Received Type C meeting responses from FDA regarding late-stage aspects of clinical pathway (2Q 2016)
·
Presented detailed data supporting previously reported positive topline data from two Phase 2 clinical trials at
DDW (May 2016)
·
Held End of Phase 2 meeting with FDA (July 2016)
·
Confirmed key elements of Pivotal Phase 2b/3 clinical trial design pursuant to consultations with FDA (1Q 2017)
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Announced issuance of key U.S. composition of matter patent providing important intellectual
property protection in the U.S until at least 2035 (Q2 2018)
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Prevention of CDI, overgrowth
of pathogenic organisms and AMR (Degrade IV carbapenem antibiotics)
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SYN-006
(oral enzyme)
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Identified P2A as a potent carbapenemase that is stable in the GI tract
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Manufactured and formulated research lot for oral delivery (2017)
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Demonstrated microbiome protection in a pig model if ertapenem administration (Q1 2018)
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Prevention of CDI, overgrowth
of pathogenic organisms and AMR (Degrade oral beta-lactam antibiotics)
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SYN-007
(oral enzyme)
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Preclinical work ongoing to expand the utility of SYN-004 (ribaxamase) for use with oral
beta-lactam antibiotics
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Preserve gut barrier,
treat local GI inflammation, restore gut microbiome
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SYN-020
(oral IAP enzyme)
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Generated high expressing manufacturing cell lines for intestinal alkaline phosphatase (IAP) (1H 2017)
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Identified downstream process and potential tablet formulations (2H 2017)
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Ongoing preclinical efficacy studies
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Prevention and treatment
of pertussis
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SYN-005
(monoclonal antibody
therapies)
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Reported supportive preclinical research findings (2014)
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The University of Texas at Austin (“UT Austin”) received a grant from the Bill and Melinda Gates Foundation
to support a preclinical study to evaluate the prophylactic capability of SYN-005 (4Q 2015)
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Reported supportive preclinical data demonstrating hu1B7, a component of SYN-005, provided protection from pertussis
for five weeks in neonatal non-human primate study (Q2 2017)
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Reported supportive preclinical data demonstrating that an extended half-life version of hu1B7, a component of
SYN-005, provided protection from pertussis for five weeks in a non-human neonatal primate study (Q4 2017)
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Collaborations with Intrexon and UT Austin
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Our Microbiome-Focused Pipeline
Our CDI and IBS-C programs are focused
on protecting the healthy function of the gut microbiome, or gut flora, which is home to billions of microbial species and composed
of a natural balance of both “good” beneficial species and potentially “bad” pathogenic species. When
the natural balance or normal function of these microbial species is disrupted, a person’s health can be compromised. All
of our programs are supported by our growing intellectual property portfolio. We are maintaining and building our patent portfolio
through: filing new patent applications; prosecuting existing applications; and licensing and acquiring new patents and patent
applications. Our plan remains focused on the advancement of our two late-stage clinical programs. We continue to actively manage
resources in preparation for the late-stage clinical advancement of our two lead microbiome-focused clinical programs, including
our pursuit of successful and viable opportunities that will allow us to establish the clinical infrastructure and financial resources
necessary to successfully initiate and complete this plan.
Company History
Our predecessor, Sheffield Pharmaceuticals,
Inc., was incorporated in 1986, and in 2006 engaged in a reverse merger with Pipex Therapeutics, Inc., a Delaware corporation
formed in 2001. After the merger, we changed our name to Pipex Pharmaceuticals, Inc., and in October 2008 we changed our name
to Adeona Pharmaceuticals, Inc. On October 15, 2009, we engaged in a merger with a wholly owned subsidiary for the purpose of
reincorporating in the State of Nevada. After reprioritizing our focus on the emerging area of synthetic biologics and entering
into our first collaboration with Intrexon, we amended our Articles of Incorporation to change our name to Synthetic Biologics,
Inc. on February 15, 2012.
Corporate Information
Our executive offices are located at 9605
Medical Center Drive, Suite 270, Rockville, Maryland 20850. Our telephone number is (732) 332-7800, and our website address is
www.syntheticbiologics.com. The information contained on our website is not part of, and should not be construed as being
incorporated by reference into this prospectus supplement.
The Securities That May Be Offered
We may offer shares of our common stock
and preferred stock, various series of debt securities and /or warrants to purchase any of such securities, either individually
or in combination with other securities or as units, with a total value of up to $200,000,000 from time to time under this prospectus,
together with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined
by market conditions at the time of any offering. This prospectus provides you with a general description of the securities we
may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that
will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity
date, if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exercise, exchange or sinking fund terms, if any;
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restrictive
covenants, if any;
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voting
or other rights, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to
or adjustments in the conversion or exchange prices or rates and in the securities or
other property receivable upon conversion or exchange; and
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material
or special U.S. federal income tax considerations, if any.
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The applicable prospectus supplement and
any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information
contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement or free
writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness
of the registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO
CONSUMMATE A SALE OF SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may offer and sell these securities
directly to investors or to or through one or more agents, underwriters, dealers or other third parties. We or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents
or underwriters, we will include in the applicable prospectus supplement:
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the
names of those agents or underwriters;
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applicable
fees, discounts and commissions to be paid to them;
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details
regarding over-allotment options, if any; and
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the
net proceeds to us.
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Common Stock
We may issue shares of our common stock
from time to time. We currently have authorized 350,000,000 shares of common stock, par value $.001 per share. We may offer shares
of common stock alone or underlying the registered securities convertible into or exercisable for our common stock. Each holder
of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the
election of directors. Under our Articles of Incorporation as amended and amended and restated bylaws our stockholders do not
have cumulative voting rights. Because of this, the holders of a majority of the shares of common stock entitled to vote in any
election of directors can elect all of the directors standing for election, if they should so choose. Subject to preferences that
may be applicable to any then-outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends,
if any, as may be declared from time to time by the board of directors out of legally available funds. In the event of our liquidation,
dissolution or winding up, holders of common stock are entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference
granted to the holders of any then-outstanding shares of preferred stock. Holders of common stock have no preemptive, conversion
or subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences
and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares
of any series of preferred stock.
Preferred Stock
We may issue shares of our preferred stock
from time to time, in one or more series. Under our Articles of Incorporation, as amended, our board of directors has the authority,
without further action by the stockholders (unless such stockholder action is required by applicable law or the rules of any stock
exchange or market on which our securities are then traded), to designate and issue up to 10,000,000 shares of preferred stock
in one or more series (of which 120,000 shares have been designated Series A Preferred Stock and are outstanding), to establish
from time to time the number of shares to be included in each such series, to fix the rights, preferences and privileges of the
shares of each wholly unissued series and any qualifications, limitations or restrictions thereon and to increase or decrease
the number of shares of any such series, but not below the number of shares of such series then outstanding. Any authorized and
undesignated shares of preferred stock may be issued from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by our Board of Directors (authority to do so being hereby expressly vested in the Board
of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or
resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of
any wholly unissued series of preferred stock, including without limitation authority to fix by resolution or resolutions the
dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions),
redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series
and the designation thereof, or any of the foregoing.
The rights, preferences, privileges and
restrictions granted to or imposed upon any series of preferred stock that we offer and sell under this prospectus and applicable
prospectus supplements will be set forth in a certificate of designation relating to the series. We will incorporate by reference
into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of shares of that series of preferred stock. You should
read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series
of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred 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 that may otherwise benefit holders of our common stock and may adversely affect the market price of the common stock and
the voting and other rights of the holders of common stock. It is not possible to state the actual effect of the issuance of any
shares of preferred stock on the rights of holders of common stock until the board of directors determines the specific rights
attached to that preferred stock. We have no current plans to issue any shares of preferred stock.
In this prospectus, we have summarized
certain general features of the preferred stock under “Description of Capital Stock—Preferred Stock.” We urge
you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be
provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that
contains the terms of the applicable series of preferred stock.
Debt Securities
We may offer general debt obligations,
which may be secured or unsecured, senior or subordinated and convertible into shares of our common stock. In this prospectus,
we refer to the senior debt securities and the subordinated debt securities together as the “debt securities.” We
may issue debt securities under a note purchase agreement or under an indenture to be entered between us and a trustee; forms
of the senior and subordinated indentures are included as an exhibit to the registration statement of which this prospectus is
a part. The indentures do not limit the amount of securities that may be issued under them and provide that debt securities may
be issued in one or more series. The senior debt securities will have the same rank as all of our other indebtedness that is not
subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth in the applicable prospectus
supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors and preferred stockholders
of our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities being offered. This prospectus
contains only general terms and provisions of the debt securities. The applicable prospectus supplement will describe the particular
terms of the debt securities offered thereby. You should read any prospectus supplement and any free writing prospectus that we
may authorize to be provided to you related to the series of debt securities being offered, as well as the complete note agreements
and/or indentures that contain the terms of the debt securities. Forms of indentures have been filed as exhibits to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of
debt securities being offered will be incorporated by reference into the registration statement of which this prospectus is a
part from reports we file with the SEC.
Warrants
We may issue warrants for the purchase
of common stock and/or preferred stock and/or debt securities in one or more series. We may issue warrants independently or in
combination with common stock and/or preferred stock. In this prospectus, we have summarized certain general features of the warrants
under “Description of Warrants.”
We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the particular
series of warrants being offered, as well as the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
that contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part,
or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and
warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental
agreements, before the issuance of such warrants.
Warrants may be issued under a warrant
agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if any, in the
applicable prospectus supplement relating to a particular series of warrants.
Units
We may offer units consisting of any combination
of our common stock, preferred stock, debt securities and/or warrants to purchase any of these securities in one or more series.
We may evidence each series of units by unit certificates that we will issue under a separate 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. This prospectus contains only
a summary of certain general features of the units. The applicable prospectus supplement will describe the particular features
of the units being offered thereby. You should read any prospectus supplement and any free writing prospectus that we may authorize
to be provided to you 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 provisions and will be incorporated by reference
into the registration statement of which this prospectus is apart from reports we file with the SEC.
RISK FACTORS
An investment in our securities involves
a high degree of risk. You should consider carefully the risks discussed under the section captioned “Risk Factors”
contained in our most recent annual report on Form 10-K and in our subsequent quarterly reports on Form 10-Q, as updated by our
subsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of which is incorporated
by reference in this prospectus in its entirety, together with other information in this prospectus, and the information and documents
incorporated by reference in this prospectus, and any free writing prospectus that we have authorized for use in connection with
this offering before you make a decision to invest in our securities. If any of these events actually occur, our business, operating
results, prospects or financial condition could be materially and adversely affected. This could cause the trading price of our
common stock to decline and you may lose all or part of your investment.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Some of the statements contained or incorporated
by reference in this prospectus may include forward-looking statements that reflect our current views with respect to our ongoing
and planned clinical trials, business strategy, business plan, financial performance and other future events. These statements
include forward-looking statements both with respect to us, specifically, and the biotechnology sector, in general. We make these
statements pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Statements that include
the words “expect,” “intend,” “plan,” “believe,” “project,” “estimate,”
“may,” “should,” “anticipate,” “will” and similar statements of a future or forward-looking
nature identify forward-looking statements for purposes of the federal securities laws or otherwise.
All forward-looking statements involve
inherent risks and uncertainties, and there are or will be important factors that could cause actual results to differ materially
from those indicated in these statements. We believe that these factors include, but are not limited to, those factors set forth
under the caption “Risk Factors” in this prospectus and under the captions “Risk Factors,” “Business,”
and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in our most recent
Annual Report on Form 10-K and our subsequent Quarterly Reports on Form 10-Q, all of which you should review carefully. Please
consider our forward-looking statements in light of those risks as you read this prospectus supplement and the accompanying prospectus.
We undertake no obligation to publicly update or review any forward-looking statement, whether as a result of new information,
future developments or otherwise.
If one or more of these or other risks
or uncertainties materializes, or if our underlying assumptions prove to be incorrect, actual results may vary materially from
what we anticipate. All subsequent written and oral forward-looking statements attributable to us or individuals acting on our
behalf are expressly qualified in their entirety by this Note. Before purchasing any of our securities, you should consider carefully
all of the factors set forth or referred to in this prospectus that could cause actual results to differ.
RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following summary
is qualified by the more detailed information appearing in the computation table found in Exhibit 12.1 to the registration statement
of which this prospectus is part and the historical financial statements, including the notes to those financial statements, incorporated
by reference in this prospectus. The following table sets forth our ratio of earnings to fixed charges for each of the periods
indicated:
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Year Ended December 31
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2017
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2016
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2015
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2014
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2013
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Ratio of earnings
to fixed charges (1)
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N/A
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(2)
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N/A
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(2)
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N/A
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(2)
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N/A
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(2)
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N/A
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(2)
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Ratio of earnings
to fixed charges and preferred stock dividends (1)
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–—
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N/A
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(2)
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N/A
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(2)
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N/A
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(2)
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N/A
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(2)
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(1)
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The
ratio of earnings to fixed charges is calculated pursuant to instructions of Item 503
of Regulation S-K and by dividing earnings by fixed charges. For this purpose,
“earnings” are determined by adding fixed charges to our income (loss) before
income taxes adjusted for losses allocated to the non-controlling interest in our subsidiaries
and “fixed charges and preferred stock dividends” consist solely of Preferred
Stock Dividends.
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(2)
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Earnings
were insufficient to cover fixed charges for these periods. We have not included a ratio
of earnings to combined fixed charges and preferred stock dividends for the years ended
December 31, 2016, 2015, 2014 and 2013 because we did not have any preferred stock outstanding
as of the dates thereof. The amount of the deficiency to cover fixed charges and the
combined fixed charge and preferred stock dividends for the year ended December 31, 2017
was $25.9 million and $32.9 million, respectively. The amount of the fixed charge coverage
deficiency was $38.7 million, $39.9 million, $20.5 million, and $12.3 million
for the years ended December 31, 2016, 2015, 2014 and 2013, respectively.
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USE OF PROCEEDS
Unless otherwise set forth in the applicable
prospectus supplement, we intend to use the net proceeds, if any, from the sales of securities offered by this prospectus for
general corporate purposes, which may include, among other things, payment of general and administrative expenses and accounts
payable, increasing our working capital and funding research and development, clinical trials and capital expenditures. In addition,
we may use a portion of the net proceeds for licensing or acquiring intellectual property to incorporate into our products and
product candidates or our research and development programs. We may also use a portion of the net proceeds to in-license, acquire
or invest in complementary businesses or products, and intellectual property, however, we have no current commitments or obligations
to do so.
The amounts and timing of our actual expenditures
will depend on numerous factors, including our development and commercialization efforts, as well as the amount of cash used in
our operations. We therefore cannot estimate with certainty the amount of net proceeds to be used for the purposes described above.
We may find it necessary or advisable to use the net proceeds for other purposes, and we will have broad discretion in the application
of the net proceeds. Pending the uses described above, we plan to invest the net proceeds from this offering in short-term, investment-grade,
interest-bearing securities.
DIVIDEND POLICY
We
have never paid cash dividends on our common stock. Moreover, we do not anticipate paying periodic cash dividends on our common
stock for the foreseeable future. We intend to use all available cash and liquid assets in the operation and growth of our business,
subject to terms of any preferred stock or debt securities. Any future determination about the payment of dividends will be made
at the discretion of our board of directors and will be subject to the rights of any outstanding preferred stock and will depend
upon our earnings, if any, capital requirements, operating and financial conditions and on such other factors as our board of
directors deems relevant. The Series A Preferred Stock ranks senior to the shares of our common stock with respect to dividend
rights and holders of Series A Preferred Stock are entitled to a cumulative dividend at the rate of 2.0% per annum, payable quarterly
in arrears, as set forth in the Certificate of Designation of Series A Convertible Preferred Stock.
DESCRIPTION OF CAPITAL
STOCK
Authorized Capital
Our authorized capital consists of 350
million shares of common stock, par value $0.001 per share, and 10 million shares of preferred stock, par value $0.001 per share.
As of May 7, 2018, 128,566,886 shares of common stock were issued and outstanding, and 120,000 shares of preferred stock were
issued and outstanding.
Common Stock
We may issue shares of our common stock
from time to time. We currently have authorized 350,000,000 shares of common stock, par value $.001 per share. We may offer shares
of common stock alone or underlying the registered securities convertible into or exercisable for our common stock.
Voting. The
holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders,
including the election of directors, and do not have cumulative voting rights. Accordingly, the holders of a majority of the shares
of our common stock entitled to vote in any election of directors can elect all of the directors standing for election.
Dividends. Subject
to preferences that may be applicable to any then outstanding preferred stock, the holders of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation.
In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the
net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject
to the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights and Preferences.
The holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking
fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are
subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock that we
may designate and issue in the future.
Fully Paid and
Nonassessable. All of our outstanding shares of common stock are, and the shares of common stock to be issued under this prospectus
will be, fully paid and nonassessable.
In this prospectus,
we have summarized certain general features of our common stock under “Description of Capital Stock—Common Stock.”
We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize
to be provided to you) related to any common stock being offered.
Preferred Stock
Our Board of Directors has the authority,
without action by our stockholders, to designate and issue up to 10 million shares of preferred stock in one or more series or
classes and to designate the rights, preferences and privileges of each series or class, which may be greater than the rights
of our common stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock upon the rights
of holders of our common stock until our Board of Directors determines the specific rights of the holders of the preferred stock.
However, the effects might include:
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restricting
dividends on our common stock;
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diluting
the voting power of our common stock;
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impairing
liquidation rights of our common stock; or
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delaying
or preventing a change in control of us without further action by our stockholders.
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The Board of Directors’ authority
to issue preferred stock without stockholder approval could make it more difficult for a third-party to acquire control of our
company, and could discourage such attempt. We have no present plans to issue any shares of preferred stock.
Series A Preferred
We had 120,000 shares of Series A Preferred
Stock outstanding as of May 7, 2018.
The Series A Preferred Stock ranks senior
to the shares of our common stock, and any other class or series of stock issued by us with respect to dividend rights, redemption
rights and rights on the distribution of assets on our voluntary or involuntary liquidation, dissolution or winding up. Holders
of Series A Preferred Stock are entitled to a cumulative dividend at the rate of 2.0% per annum, payable quarterly in arrears,
as set forth in the Certificate of Designation of Series A Preferred Stock classifying the Series A Preferred Stock. The Series
A Preferred Stock is convertible at the option of the holders at any time into shares of common stock at an initial conversion
price of $0.54 per share, subject to certain customary anti-dilution adjustments.
Any conversion of Series A Preferred Stock
may be settled by us in shares of common stock only.
The holder’s ability to convert
the Series A Preferred Stock into common stock is subject to (i) a 19.99% blocker provision to comply with NYSE American Listing
Rules, (ii) if so elected by the holder, a 4.99% blocker provision that will prohibit beneficial ownership of more than 4.99%
of our outstanding shares common stock or voting power at any time, and (iii) applicable regulatory restrictions.
In the event of our liquidation, dissolution
or winding-up, holders of the Series A Preferred Stock are entitled to a preference on liquidation equal to the greater of (i)
an amount per share equal to the stated value plus any accrued and unpaid dividends on such share of Series A Preferred Stock
(the “Accreted Value”), and (ii) the amount such holders would receive in such liquidation if they converted their
shares of Series A Preferred Stock (based on the Accreted Value and without regard to any conversion limitation) into shares of
the common stock immediately prior to any such liquidation, dissolution or winding-up (the greater of (i) and (ii), is referred
to as the “Liquidation Value”).
Except as otherwise required by law, the
holders of Series A Preferred Stock have no voting rights, other than customary protections against adverse amendments and issuance
of pari passu or senior preferred stock. Upon certain change of control events involving our company, we will be required
to repurchase all of the Series A Preferred Stock at a redemption price equal to the greater of (i) the Accreted Value and (ii)
the amount that would be payable upon a change of control (as defined in the Certificate of Designation) in respect of common
stock issuable upon conversion of such share of Series A Preferred Stock if all outstanding shares of Series A Preferred Stock
were converted into common stock immediately prior to the change of control.
On or at any time after (i) the VWAP (as
defined in the Certificate of Designation) for at least 20 trading days in any 30 trading day period is greater than $2.00, subject
to adjustment in the case of stock split, stock dividends or the like we have the right, after providing notice not less than
6 months prior to the redemption date, to redeem, in whole or in part, on a pro rata basis from all holders thereof based on the
number of shares of Series A Preferred Stock then held, the outstanding Series A Preferred Stock, for cash, at a redemption price
per share of Series A Preferred Stock of $225.00, subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization with respect to the Series A Preferred Stock, or (ii) the five year anniversary
of the issue date, we have the right to redeem, in whole or in part, on a pro rata basis from all holders thereof based on the
number of shares of Series A Preferred Stock then held, the outstanding Series A Preferred Stock, for cash, at a redemption price
per share equal to the Liquidation Value.
Warrants
As of May 7, 2018, we had issued and outstanding
a total of 32,054,809 warrants to purchase our common stock outstanding at a weighted-average price of $1.50.
On November 18, 2016, we completed a public
offering of 25,000,000 shares of common stock in combination with accompanying warrants to purchase an aggregate of 50,000,000
shares of the common stock, of which warrants to purchase 25,000,000 shares of common stock are outstanding (the “Series
A Warrants”). The initial per share exercise price of the Series A Warrants is $1.43 subject to adjustment as specified
in the warrant agreements. The Series A Warrants may be exercised at any time until the four-year anniversary of the issuance
date. The warrants include a provision that if we were to enter into a certain transaction, as defined in the agreement, the warrants
would be purchased from the holder for cash.
On October 10, 2014, we issued 14,059,616
units at a price of $1.47 per unit to certain institutional investors in a registered direct offering, each unit consisted of
one share of our common stock and a warrant to purchase 0.5 shares of common stock. The warrants, exercisable for an aggregate
of 7,029,808 shares of common stock, have an exercise price of $1.75 per share and a life of five years. The warrants vested immediately
and expire on October 10, 2019.
Options
As of May 7, 2018, options to purchase
an aggregate of 12,168,515 shares of common stock were outstanding under our equity incentive plans.
Stockholder Registration Rights
We are party to a registration rights
agreement (the “Registration Rights Agreement”) that provides the holder of the Series A Preferred Stock with certain
registration rights. Pursuant to the terms of the Registration Rights Agreement, we agreed to file a registration statement covering
resales of the shares of common stock issuable upon conversion of the Series A Preferred Stock with the SEC within 60 days following
receipt of a request at any time (as long as it beneficially owns at least ten percent (10%) of our common stock then outstanding
or is otherwise deemed our affiliate) and to use reasonable best efforts to have the registration statement declared effective
within 120 days following receipt of such request.
We have agreed to pay certain penalties
if the registration statement is not declared effective by the SEC on or before the required deadline. After that deadline and
until such time as the registration statement is declared effective (or until we are no longer required to cause the registration
statement to be declared effective), we will be required to pay additional liquidated damages.
Anti-Takeover Effects of Certain Provisions
of our Articles of Incorporation and Bylaws
Our Articles of Incorporation, as amended,
and amended and restated bylaws contain certain provisions that may have anti-takeover effects, making it more difficult for or
preventing a third party from acquiring control of the Company or changing its board of directors and management. According to
our Amended and Restated Bylaws and Articles of Incorporation, neither the holders of our common stock nor the holders of any
preferred stock we may issue in the future have cumulative voting rights in the election of our directors. The lack of cumulative
voting makes it more difficult for other stockholders to replace our board of directors or for a third party to obtain control
of our company by replacing its board of directors.
Authorized but Unissued Shares
Our authorized but unissued shares of
common stock and preferred stock will be available for future issuance without stockholder approval. We may use additional shares
for a variety of purposes, including future public offerings to raise additional capital, to fund acquisitions and as employee
compensation. The existence of authorized but unissued shares of common stock and preferred stock could render more difficult
or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Anti-Takeover Effects of Nevada Law
Business Combinations
The “business combination”
provisions of Sections 78.411 to 78.444, inclusive, of the Nevada Revised Statute (the “NRS”) generally prohibit a
Nevada corporation with at least 200 stockholders from engaging in various “combination” transactions with any interested
stockholder for a period of two years after the date of the transaction in which the person became an interested stockholder,
unless the transaction is approved by the board of directors prior to the date the interested stockholder obtained such status
or the combination is approved by the board of directors and thereafter is approved at a meeting of the stockholders by the affirmative
vote of stockholders representing at least 60% of the outstanding voting power held by disinterested stockholders, and extends
beyond the expiration of the two-year period, unless:
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the
combination was approved by the board of directors prior to the person becoming an interested
stockholder or the transaction by which the person first became an interested stockholder
was approved by the board of directors before the person became an interested stockholder
or the combination is later approved by a majority of the voting power held by disinterested
stockholders; or
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if
the consideration to be paid by the interested stockholder is at least equal to the highest
of: (a) the highest price per share paid by the interested stockholder within the two
years immediately preceding the date of the announcement of the combination or in the
transaction in which it became an interested stockholder, whichever is higher, (b) the
market value per share of common stock on the date of announcement of the combination
and the date the interested stockholder acquired the shares, whichever is higher, or
(c) for holders of preferred stock, the highest liquidation value of the preferred stock,
if it is higher.
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A “combination” is generally
defined to include mergers or consolidations or any sale, lease exchange, mortgage, pledge, transfer, or other disposition, in
one transaction or a series of transactions, with an “interested stockholder” having: (a) an aggregate market value
equal to 5% or more of the aggregate market value of the assets of the corporation, (b) an aggregate market value equal to 5%
or more of the aggregate market value of all outstanding shares of the corporation, (c) 10% or more of the earning power or net
income of the corporation, and (d) certain other transactions with an interested stockholder or an affiliate or associate of an
interested stockholder.
In general, an “interested stockholder”
is a person who, together with affiliates and associates, owns (or within two years, did own) 10% or more of a corporation’s
voting stock. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may
discourage attempts to acquire our company even though such a transaction may offer our stockholders the opportunity to sell their
stock at a price above the prevailing market price.
Control Share Acquisitions
The “control share” provisions
of Sections 78.378 to 78.3793, inclusive, of the NRS apply to “issuing corporations” that are Nevada corporations
with at least 200 stockholders, including at least 100 stockholders of record who are Nevada residents, and that conduct business
directly or indirectly in Nevada. The control share statute prohibits an acquirer, under certain circumstances, from voting its
shares of a target corporation’s stock after crossing certain ownership threshold percentages, unless the acquirer obtains
approval of the target corporation’s disinterested stockholders. The statute specifies three thresholds: one-fifth or more
but less than one-third, one-third but less than a majority, and a majority or more, of the outstanding voting power. Generally,
once an acquirer crosses one of the above thresholds, those shares in an offer or acquisition and acquired within 90 days thereof
become “control shares” and such control shares are deprived of the right to vote until disinterested stockholders
restore the right. These provisions also provide that if control shares are accorded full voting rights and the acquiring person
has acquired a majority or more of all voting power, all other stockholders who do not vote in favor of authorizing voting rights
to the control shares are entitled to demand payment for the fair value of their shares in accordance with statutory procedures
established for dissenters’ rights.
A corporation may elect to not be governed
by, or “opt out” of, the control share provisions by making an election in its articles of incorporation or bylaws,
provided that the opt-out election must be in place on the 10th day following the date an acquiring person has acquired a controlling
interest, that is, crossing any of the three thresholds described above. We have not opted out of the control share statutes,
and will be subject to these statutes if we are an “issuing corporation” as defined in such statutes.
The effect of the Nevada control share
statutes is that the acquiring person, and those acting in association with the acquiring person, will obtain only such voting
rights in the control shares as are conferred by a resolution of the stockholders at an annual or special meeting. The Nevada
control share law, if applicable, could have the effect of discouraging takeovers of our company.
Transfer Agent and Registrar
The transfer agent and registrar for our
common stock is Corporate Stock Transfer, Inc. The transfer agent’s address is 3200 Cherry Creek South Drive, Suite 430,
Denver, Colorado 80209. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named
and described in the prospectus supplement for that series.
Listing on the NYSE American LLC
Our common stock is listed on the NYSE American LLC under the
symbol “SYN.”
DESCRIPTION OF DEBT
SECURITIES
The following description, together with
the additional information we include in any applicable prospectus supplements or free writing prospectuses, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities, in one or more
series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms
of any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The
terms of any debt securities we offer under a prospectus supplement may differ from the terms we describe below. However, no prospectus
supplement shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness. As of the date of this prospectus, we have no outstanding registered
debt securities. Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring
to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue any senior debt securities
under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue any subordinated
debt securities under the subordinated indenture and any supplemental indentures that we will enter into with the trustee named
in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being
offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by
reference from reports that we file with the SEC.
The indentures will be qualified under
the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term “trustee” to
refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions
of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety
by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular series of debt
securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the
debt securities that we may offer under this prospectus, as well as the complete indentures that contain the terms of the debt
securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
The terms of each series of debt securities
will be established by or pursuant to a resolution of our Board of Directors and set forth or determined in the manner provided
in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation
as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the title;
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the principal amount
being offered and if a series, the total amount authorized and the total amount outstanding;
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any limit on the
amount that may be issued;
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whether or not we
will issue the series of debt securities in global form and, if so, the terms and who the depositary will be;
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the maturity date;
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whether and under
what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States
person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the annual interest
rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the
dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates;
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whether or not the
debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the
subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional or provisional redemption provisions and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which
we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt
securities and the currency or currency unit in which the debt securities are payable;
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whether the indenture
will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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pay
dividends or make distributions in respect of our capital stock or the capital stock
of our subsidiaries;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions
or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger;
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whether the
indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based or other financial ratios;
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a
discussion of certain material or special United States federal income tax considerations
applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be
offered at an “original issue discount” as defined in paragraph (a) of Section
1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the
debt securities, including any additional events of default or covenants provided with
respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms under which a series of debt securities may be convertible into or exchangeable for our common stock, our
preferred stock or other securities (including securities of a third party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number
of shares of our common stock, our preferred stock or other securities (including securities of a third party) that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indentures will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However,
any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as
appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities,
the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of
the debt securities into securities that the holders of the debt securities would have received if they had converted the debt
securities before the consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the following are events of default under the indentures with respect to any series
of debt securities that we may issue:
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if we fail
to pay interest when due and payable and our failure continues for 90 days and the time
for payment has not been extended;
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if we fail
to pay the principal, premium or sinking fund payment, if any, when due and payable at
maturity, upon redemption or repurchase or otherwise, and the time for payment has not
been extended;
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if we fail
to observe or perform any other covenant contained in the debt securities or the indentures,
other than a covenant specifically relating to another series of debt securities, and
our failure continues for 90 days after we receive notice from the trustee or we and
the trustee receive notice from the holders of at least 25% of the aggregate principal
amount of the outstanding debt securities of the applicable series; and
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if specified
events of bankruptcy, insolvency or reorganization occur.
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We will describe in each applicable prospectus
supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with respect to
debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by
notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if
any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain
specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any,
of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the
trustee or any holder.
The holders of a majority in principal
amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the
series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest,
unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event
of default.
Subject to the terms of the indentures,
if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any
of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt
securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss,
liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising
any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the direction
so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to
its duties under the Trust Indenture Act, the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to the holders not involved
in the proceeding.
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The indentures provide that if an event
of default has occurred and is continuing, the trustee will be required in the exercise of its powers to use the degree of care
that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that
conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder of
the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under
the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred
by taking or not taking such action.
A holder of the debt securities of any
series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other
remedies only if:
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the holder
has given written notice to the trustee of a continuing event of default with respect
to that series;
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the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that
series have made a written request and such holders have offered reasonable indemnity
to the trustee or security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as trustee; and
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the trustee
does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other
conflicting directions within 90 days after the notice, request and offer.
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These limitations do not apply to a suit
instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the
debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file statements with
the trustee regarding our compliance with specified covenants in the indentures.
The indentures provide that if a default
occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each holder notice
of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the trustee
or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the case of a default
in the payment of principal or premium of, or interest on, any debt security or certain other defaults specified in an indenture,
the trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or
a trust committee of directors, or responsible officers of the trustee, in good faith determine that withholding notice is in
the best interests of holders of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture
for any series of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders
with respect to the following specific matters:
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to fix any
ambiguity, defect or inconsistency in the indenture;
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to comply
with the provisions described above under “Description of Debt Securities —Consolidation,
Merger or Sale;”
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to comply
with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act;
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to add to,
delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and delivery of debt securities, as
set forth in the indenture;
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to provide
for the issuance of, and establish the form and terms and conditions of, the debt securities
of any series as provided under “Description of Debt Securities — General,”
to establish the form of any certifications required to be furnished pursuant to the
terms of the indenture or any series of debt securities, or to add to the rights of the
holders of any series of debt securities;
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to evidence
and provide for the acceptance of appointment hereunder by a successor trustee;
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to provide
for uncertificated debt securities and to make all appropriate changes for such purpose;
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to add such
new covenants, restrictions, conditions or provisions for the benefit of the holders,
to make the occurrence, or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an event of default or to
surrender any right or power conferred to us in the indenture; or
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to change
anything that does not adversely affect the interests of any holder of debt securities
of any series in any material respect.
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In addition, under the indentures, the
rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders
of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However,
subject to the terms of the indenture for any series of debt securities that we may issue or otherwise provided in the prospectus
supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes with the
consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption or repurchase of any debt securities;
or
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reducing
the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
Each indenture provides that, subject
to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series
of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace stolen,
lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold monies
for payment in trust;
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recover excess
money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint any
successor trustee.
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In order to exercise our rights to be
discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium
and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series. See “Legal
Ownership of Securities” below for a further description of the terms relating to any book-entry securities.
At the option of the holder, subject to
the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures
and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register
the transfer of, or exchange any debt securities of that series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of
business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole
or in part, except the unredeemed portion of any debt securities we are redeeming in
part.
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Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth
in the applicable indenture and is under no obligation to exercise any of the powers given it by the indentures at the request
of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities
that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person
in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest payment.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or
the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the
end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of
the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities
will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
Ranking Debt Securities
The subordinated debt securities will
be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the extent described in
a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue.
It also does not limit us from issuing any other secured or unsecured debt. The senior debt securities will be unsecured and will
rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit the amount of senior
debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
Warrants
We may issue warrants for the purchase
of common stock, preferred stock or debt securities. We may issue warrants independently or in combination with other securities.
In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the particular
series of warrants being offered, as well as any warrant agreements and warrant certificates that contain the terms of the warrants.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that
contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of
such warrants.
Any warrants issued under this prospectus
may be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant agreement that we enter into
with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement
relating to the particular series of warrants being offered.
The following description, together with
the additional information that we include in any applicable prospectus supplement and in any related free writing prospectus
that we may authorize to be distributed to you, summarizes the material terms and provisions of the warrants that we may offer
under this prospectus, which may be issued in one or more series. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants in more
detail in the applicable prospectus supplement and in any related free writing prospectus that we may authorize to be distributed
to you. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise
in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify
different or additional terms.
The summary below and that contained in
any prospectus supplement is qualified in its entirety by reference to all of the provisions of the warrant and/or the warrant
agreement and warrant certificate, as applicable, applicable to a particular series of securities. We urge you to read the applicable
prospectus supplements and any related free writing prospectuses related to the warrants that we may offer under this prospectus,
as well as the complete warrant and/or the warrant agreement and warrant certificate, as applicable, that contains the terms of
the warrants.
General
We will describe in the applicable prospectus supplement the
terms of the series of warrants being offered, including:
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the offering
price and aggregate number of warrants offered;
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the currency
for which the warrants may be purchased;
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if applicable,
the number of warrants issued with each such security;
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the number
of shares of common stock, as the case may be, purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such exercise;
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the effect
of any merger, consolidation, sale or other disposition of our business on the warrant
agreements and the warrants;
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the terms
of any rights to redeem or call the warrants;
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any provisions
for changes to or adjustments in the exercise price or number of securities issuable
upon exercise of the warrants;
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the dates
on which the right to exercise the warrants will commence and expire;
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the manner
in which the warrant agreements and warrants may be modified;
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a discussion
of any material or special U.S. federal income tax considerations of holding or exercising
the warrants;
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the terms
of the securities issuable upon exercise of the warrants; and
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any other
specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to
receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any:
Exercise of Warrants
Each warrant will entitle the holder to
purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the
applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants
offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the
close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After
the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant
or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent,
if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and
deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant
certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely
as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with
any holder of any warrant. A warrant agent may act as warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right
to exercise, and receive the securities purchasable upon exercise of, its warrants.
Governing Law
Unless we otherwise specify in the applicable
prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION
OF UNITS
Units
We may issue units consisting of any combination
of our common stock, preferred stock, debt securities, and warrants. We will issue each unit so that the holder of the unit is
also the holder of each security included in the unit. As a result, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The summary below and that contained in
any prospectus supplement is qualified in its entirety by reference to all of the provisions of the unit agreement and/or unit
certificate, and depositary arrangements, if applicable. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the units that we may offer under this prospectus, as well as the complete unit agreement
and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of the units.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form
of unit agreement and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of the particular
series of units we are offering, and any supplemental agreements, before the issuance of such units.
The applicable prospectus supplement,
information incorporated by reference or free writing prospectus may describe:
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the
designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances those securities may be held or transferred separately;
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any
provisions for the issuance, payment, settlement, transfer, or exchange of the units
or of the securities composing the units;
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whether
the units will be issued in fully registered or global form; and
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any
other terms of the units.
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The applicable provisions described in
this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities”
and “Description of Warrants” above, will apply to each unit and to each security included in each unit, respectively.
LEGAL OWNERSHIP
OF SECURITIES
We can issue securities in registered form or in the form of
one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities
registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose
as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued
in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry
form only, as we will specify in any applicable prospectus supplement. This means securities may be represented by one or more
global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial
institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred
to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security
is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of
the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As a result, investors in a global security
will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or
other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or
issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street
name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial
institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account
he or she maintains at that institution.
For securities held in street name, we
or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of those securities, and we or any applicable trustee or depositary will
make all payments on those securities to them. These institutions pass along the payments they receive to their customers who
are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations
of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities.
We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect
means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are
issuing the securities only in global form.
For example, once we make a payment or
give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required,
under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the legal holders to amend an indenture, to relieve us of the consequences of a default
or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would
seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the legal holders contact
the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank,
broker or other financial institution, either in book-entry form because the securities are represented by one or more global
securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you
can be a holder, if that is permitted in the future;
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how
it would exercise rights under the securities if there were a default or other event
triggering the need for holders to act to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters.
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Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global
securities will have the same terms.
Each security issued in book-entry form
will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or
its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify
otherwise in any applicable prospectus supplement, The Depository Trust Company (“DTC”) will be the depositary for
all securities issued in book-entry form.
A global security may not be transferred
to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination
situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.”
As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with
the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will
not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular
security indicates that the security will be issued in global form only, then the security will be represented by a global security
at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another
book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating
to a global security will be governed by the account rules of the investor’s financial institution and of the depositary,
as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and
instead deal only with the depositary that holds the global security.
If securities are issued only in the form
of a global security, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot
obtain non-global certificates for his or her interest in the securities, except in the
special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank, broker or other
financial institution for payments on the securities and protection of his or her legal
rights relating to the securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form;
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an
investor may not be able to pledge his or her interest in a global security in circumstances
where certificates representing the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investor’s interest in a
global security;
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we
and any applicable trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in a global security, nor do we or
any applicable trustee supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and
sell interests in a global security within its book-entry system use immediately available
funds, and your bank, broker or other financial institution may require you to do so
as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through
which an investor holds its interest in a global security, may also have their own policies
affecting payments, notices and other matters relating to the securities.
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There may be more than one financial intermediary
in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security
Will Be Terminated
In a few special situations described
below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors
must consult their own banks, brokers or other financial institutions to find out how to have their interests in securities transferred
to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in any applicable
prospectus supplement, the global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act
as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global
security and such default has not been cured or waived.
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The prospectus supplement may also list
additional situations for terminating a global security that would apply only to the particular series of securities covered by
any applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee,
is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities 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
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the name
or names of any underwriters, dealers or agents;
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the amounts
of securities underwritten or purchased by each of them;
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the purchase
price of securities and the proceeds we will receive from the sale;
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any over-allotment
options under which underwriters may purchase additional securities from us;
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any underwriting
discounts or commissions or agency fees and other items constituting underwriters’
or agents’ compensation;
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the public
offering price of the securities;
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any discounts,
commissions or concessions allowed or reallowed or paid to dealers; and
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any securities
exchange or market on which the securities may be listed.
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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. The name of the dealer
and the terms of the transaction will be set forth in the prospectus supplement.
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 provided 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,
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 will be listed on the
NYSE American, LLC or any other market for our common stock, but any other securities may or may not be 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 (or a post-effective amendment). 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
Gracin & Marlow, LLP, New York, New
York will pass upon certain legal matters relating to the issuance and sale of the debt securities, warrants and units offered
hereby on our behalf and Parsons Behle & Latimer, Reno, Nevada will pass on certain legal matters related to the issuance
and sale of the common stock and preferred stock offered hereby on our behalf. Additional legal matters may be passed upon for
us or any underwriters, dealers, of agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements of Synthetic
Biologics, Inc. as of December 31, 2017 and 2016 and for each of the three years ended in the period ended December 31, 2017 and
management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2017 incorporated
by reference in this prospectus have been so incorporated in reliance on the reports of BDO USA, LLP, an independent registered
public accounting firm, incorporated herein by reference, given on authority of said firm as experts in auditing and accounting.
The report on the financial statements contains an explanatory paragraph regarding our ability to continue as a going concern.
WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly and special
reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s public
reference room located at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the public reference room. Our public filings are also available to the public at the SEC’s web site
at http://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. This prospectus does not contain all of the information
in the registration statement. We have omitted certain parts of the registration statement, as permitted by the rules and regulations
of the SEC. You may inspect and copy the registration statement, including exhibits, at the SEC’s public reference room
or Internet site.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate
by reference” the information we file with it which means that we can disclose important information to you by referring
you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference
is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any future filings made with the SEC (other than
any portions of any such documents that are not deemed “filed” under the Exchange Act in accordance with the Exchange
Act and applicable SEC rules) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after (i) the date of the initial registration
statement and prior to the effectiveness of the registration statement, and (ii) the date of this prospectus and before the completion
of the offerings of the securities included in this prospectus.
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Our
annual report on Form 10-K for the fiscal year ended December 31, 2017 filed with the
SEC on February
22, 2018 (File No. 001-12584);
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Our
definitive proxy statement on Schedule 14A filed with the SEC on July
18, 2017 (File No. 001-12584); and
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The
description of our common stock set forth in our registration statement on Form 8-A12B,
filed with the SEC on June
20, 2007 (File No. 000-12584).
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You may obtain, free of charge, a copy
of any of these documents (other than exhibits to these documents unless the exhibits are specifically incorporated by reference
into these documents or referred to in this prospectus) by writing or calling us at the following address and telephone number:
Synthetic Biologics, Inc., 9605 Medical Center Drive, Ste. 270, Rockville, Maryland 20850. Our telephone number is (301) 417-4364.
DISCLOSURE OF SECURITIES
AND EXCHANGE COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Our amended and restated bylaws and Articles
of Incorporation, as amended, contain provisions that permit us to indemnify our directors and officers to the full extent permitted
by Nevada law, and our Articles of Incorporation, as amended, contain provisions that eliminate the personal liability of our
directors in each case for monetary damages to us or our stockholders for breach of their fiduciary duties, except to the extent
that Nevada law prohibits indemnification or elimination of liability. These provisions do not limit or eliminate our rights or
the rights of any stockholder to seek an injunction or any other non-monetary relief in the event of a breach of a director’s
or officer’s fiduciary duty. In addition, these provisions apply only to claims against a director or officer arising out
of his or her role as a director or officer and do not relieve a director or officer from liability if he or she engaged in willful
misconduct or a knowing violation of the criminal law or any federal or state securities law.
The rights of indemnification provided
in our amended and restated bylaws are not exclusive of any other rights that may be available under any insurance or other agreement,
by vote of stockholders or disinterested directors or otherwise.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC this type of indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Up to $50,000,000 of Shares
Common Stock
PROSPECTUS SUPPLEMENT
B. RILEY SECURITIES
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A.G.P.
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February 19, 2021
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