As filed with the Securities and Exchange Commission on
August 4, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IDERA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its
charter)
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Delaware |
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04-3072298 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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505 Eagleview Blvd., Suite 212
Exton, Pennsylvania 19341
(484) 348-1600
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Vincent J. Milano
President and Chief Executive Officer
Idera Pharmaceuticals, Inc.
505 Eagleview Blvd., Suite 212
Exton, Pennsylvania 19341
(484) 348-1600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Joanne R. Soslow
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA
(215) 963-5000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act
of 1933, please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act of 1933, check the
following box. ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act of 1933,
check the following box. ¨
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act. (Check one):
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| Large accelerated
filer |
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Accelerated filer |
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x |
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| Non-accelerated
filer |
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¨ |
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Smaller reporting
company |
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x |
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Emerging growth company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities
Act. o
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee |
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Common Stock, $0.001 par value per
share |
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5,528,454 |
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$1.965 |
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$10,863,412 |
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$1,410.07 |
| (1) |
Pursuant to
Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement also covers any
additional securities that may be offered or issued in connection
with any stock split, stock dividend or pursuant to anti-dilution
provisions of any of the securities. |
| (2) |
Estimated solely for
purposes of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act and based upon the
average of the high and low prices on the Nasdaq Capital Market on
July 31, 2020. |
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the
Securities Act or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. The selling stockholder named in this prospectus may not
sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and the selling
stockholder named in this prospectus are not soliciting offers to
buy these securities in any jurisdiction where the offer or sale is
not permitted.
Subject to completion,
dated August 4,
2020
PROSPECTUS
IDERA PHARMACEUTICALS, INC.
5,528,454 SHARES OF COMMON STOCK
This prospectus relates to the possible resale from time to time of
up to 5,528,454 shares of common stock of Idera
Pharmaceuticals, Inc., including 4,778,461 shares of common
stock that are issuable upon the exercise of certain outstanding
warrants (the “First Closing Warrants”) to purchase common stock by
the selling stockholder identified in this prospectus. We will not
receive any proceeds from the sale of the shares offered by this
prospectus.
We have agreed to bear all of the expenses incurred in connection
with the registration of these shares. The selling stockholder will
pay or assume brokerage commissions and similar charges incurred
for the sale of shares of our common stock.
The selling stockholder identified in this prospectus, or their
respective pledgees, donees, transferees or other
successors-in-interest, may offer the shares from time to time
through public or private transactions at prevailing market prices,
at prices related to prevailing market prices or at privately
negotiated prices. See “Plan of Distribution” beginning on
page 13.
Our common stock is listed on the Nasdaq Capital Market under the
symbol “IDRA.” On August 3, 2020, the closing sale price of
our common stock on the Nasdaq Capital Market was $2.13 per share.
You are urged to obtain current market quotations for our common
stock.
Investing in our common stock involves a high degree of risk.
See “Risk Factors” beginning on
page 3 of this prospectus and in the documents incorporated by
reference in this prospectus for a discussion of the factors you
should carefully consider before deciding to purchase these
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
, 2020.
TABLE OF CONTENTS
We have not authorized anyone to provide you with information
different from that contained or incorporated by reference in this
prospectus. The selling stockholder is offering to sell, and
seeking offers to buy, shares of our common stock only in
jurisdictions where offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of
this prospectus, regardless of the time of delivery of this
prospectus or of any sale of common stock.
PROSPECTUS SUMMARY
This summary highlights important features of this offering and
the information included or incorporated by reference in this
prospectus. This summary may not contain all of the information
that is important to you. You should read the entire prospectus
carefully, including “Risk Factors,” before deciding to invest in
our common stock.
Idera Pharmaceuticals, Inc.
We are a
clinical-stage biopharmaceutical company with a business strategy
focused on the clinical development, and ultimately the
commercialization, of drug candidates for both oncology and rare
disease indications characterized by small, well-defined patient
populations with serious unmet medical needs. Our current focus is
on our Toll-like receptor, or TLR, agonist, tilsotolimod
(IMO-2125), for oncology. We believe we can develop and
commercialize targeted therapies on our own. To the extent we seek
to develop drug candidates for broader disease indications, we have
entered into and may explore additional collaborative alliances to
support development and commercialization.
TLRs are key receptors of the immune system and play a role in
innate and adaptive immunity. As a result, we believe TLRs are
potential therapeutic targets for the treatment of a broad range of
diseases. Using our chemistry-based platform, we designed both TLR
agonists and antagonists to act by modulating the activity of
targeted TLRs. A TLR agonist is a compound that stimulates an
immune response through the targeted TLR. A TLR antagonist is a
compound that inhibits an immune response by blocking the targeted
TLR.
Our current TLR-targeted clinical-stage drug candidate,
tilsotolimod, is an agonist of TLR9. We are currently developing
tilsotolimod, via intratumoral injection, for the treatment of
anti-PD1 refractory metastatic melanoma in combination with
ipilimumab, an anti-CTLA4 antibody marketed as Yervoy® by Bristol
Myers Squibb Company (“BMS”) in a Phase 3 registration trial. We
are also evaluating intratumoral tilsotolimod in combination with
nivolumab, an anti-PD1 antibody marketed as Opdivo® by BMS, and
ipilimumab for the treatment of solid tumors in a multicohort Phase
2 trial.
Corporate Information
Our executive offices are located at 505 Eagleview Boulevard,
Suite 212, Exton, Pennsylvania 19341, our telephone number is
(484) 348-1600 and our Internet address is
www.iderapharma.com. The information on our website is not
incorporated by reference in this prospectus and should not be
considered to be part of this prospectus. Our website address is
included in this prospectus as an inactive technical reference
only. Unless the context otherwise requires, references in this
prospectus to “Idera Pharmaceuticals,” “we,” “us,” and “our” refer
to Idera Pharmaceuticals, Inc.
Idera® and IMO® are our trademarks. All other trademarks
and service marks appearing in this registration statement are the
property of their respective owners.
The Offering
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| Common stock
offered by selling stockholder |
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5,528,454
shares |
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| Use of
proceeds |
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We will not
receive any proceeds from the sale of shares in this offering.
However, we may receive the proceeds from any exercise of the First
Closing Warrants. See the section of this prospectus titled “Use of
Proceeds.” |
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| Nasdaq Capital
Market symbol |
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“IDRA” |
RISK FACTORS
Investing in our common stock involves a high degree of risk. You
should carefully consider the risks and uncertainties described in
this prospectus, including the risk factors set forth in the
documents and reports filed with the Securities and Exchange
Commission, or the SEC, that are incorporated by reference herein,
such as the risk factors under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K on file with the SEC,
which are incorporated by reference in this prospectus, before
purchasing our common stock. If any of these risks actually occurs,
our business, financial condition or results of operations would
likely suffer, possibly materially. In that case, the trading price
of our common stock could fall, and you may lose all or part of the
money you paid to buy our common stock.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate by reference
contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the
Securities Act, and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Exchange Act. All statements, other
than statements of historical fact, included or incorporated in
this prospectus regarding our strategy, future operations, clinical
trials, collaborations, intellectual property, cash resources,
financial position, future revenues, projected costs, prospects,
plans, and objectives of management are forward-looking statements.
The words “believes,” “anticipates,” “estimates,” “plans,”
“expects,” “intends,” “may,” “could,” “should,” “potential,”
“likely,” “projects,” “continue,” “will,” “schedule,” “would,” and
similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. We cannot guarantee that we actually will
achieve the plans, intentions or expectations disclosed in our
forward-looking statements and you should not place undue reliance
on our forward-looking statements. These forward-looking statements
involve known and unknown risks, uncertainties, and other factors,
which may be beyond our control, and which may cause our actual
results, performance, or achievements to be materially different
from future results, performance, or achievements expressed or
implied by such forward-looking statements. There are a number of
important factors that could cause our actual results to differ
materially from those indicated or implied by forward-looking
statements. See “Risk Factors” in this prospectus and in our
Annual Report on Form 10-K for
the year ended December 31, 2019 for more information.
These factors and the other cautionary statements made in this
prospectus and the documents we incorporate by reference should be
read as being applicable to all related forward-looking statements
whenever they appear in this prospectus and the documents we
incorporate by reference. In addition, any forward-looking
statements represent our estimates only as of the date that this
prospectus is filed with the SEC and should not be relied upon as
representing our estimates as of any subsequent date. We do not
assume any obligation to update any forward-looking statements. We
disclaim any intention or obligation to update or revise any
forward-looking statement, whether as a result of new information,
future events or otherwise, except as may be required by law.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares
offered pursuant to this prospectus. The selling stockholder will
receive all of the proceeds from the sale of the shares of common
stock offered by this prospectus. For information about the selling
stockholder, see “Selling Stockholder.” Upon the exercise of all of
the First Closing Warrants for 4,778,461 shares of common stock by
payment of cash, we will receive aggregate gross proceeds of
approximately $7.15 million.
The selling stockholder will pay any underwriting discounts and
commissions and expenses incurred by the selling stockholder for
brokerage, accounting, tax or legal services or any other expenses
incurred by the selling stockholder in disposing of the shares. We
will bear all other costs, fees and expenses incurred in effecting
the registration of the shares covered by this prospectus,
including all registration and filing fees and fees and expenses of
our counsel and accountants.
SELLING STOCKHOLDER
The table below sets forth, to our knowledge, information
concerning the beneficial ownership of shares of our common stock
by the selling stockholder as of July 31, 2020.
The information in the table below with respect to the selling
stockholder has been obtained from the selling stockholder. When we
refer to the “selling stockholder” in this prospectus, we mean the
selling stockholder listed in the table below as offering shares,
as well as their respective pledgees, donees, transferees or other
successors-in-interest who may hold any of the selling
stockholder’s interest.
We do not know if, when or in what amounts the selling stockholder
may offer their shares for sale. The selling stockholder may sell
some, all or none of the shares offered by this prospectus. Because
the number of shares the selling stockholder may offer and sell is
not presently known, and because there are currently no agreements,
arrangements or understandings with respect to the sale of any of
the shares, we cannot estimate the number of shares that will be
held by each selling stockholder after completion of this offering.
This table, however, presents the maximum number of shares of
common stock that the selling stockholder may offer pursuant to
this prospectus and the number of shares of common stock that would
be beneficially owned after the sale of the maximum number of
shares of common stock by each selling stockholder.
Beneficial ownership is determined in accordance with the
rules of the SEC, and includes voting or investment power with
respect to shares. Unless otherwise indicated below, to our
knowledge, each selling stockholder named in the table has sole
voting and investment power with respect to the shares of common
stock beneficially owned by it. The inclusion of any shares in this
table does not constitute an admission of beneficial ownership for
any selling stockholder named below. This table does not include
certain shares of our common stock held by affiliates of the
selling stockholder. The selling stockholder may hold a pecuniary
interest in such additional shares.
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Name of Selling Stockholder |
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1
Shares of Common Stock
Beneficially Owned Prior to
Offering |
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2
Shares of
Common Stock
Underlying Warrants Prior to Offering |
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3
Shares of
Common Stock
Being Offered |
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4
Shares of Common Stock to
be Beneficially Owned After
Offering |
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Number |
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Percentage |
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Number |
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Number |
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Number |
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Percentage |
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Entities affiliated with Pillar Invest Corporation |
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7,042,699 |
(2) |
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19.99 |
%(1) |
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4,778,461 |
(3) |
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5,528,454 |
(4) |
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6,292,706 |
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17.86 |
% |
| (1) |
Based on 35,199,246
shares of our common stock outstanding on July 31, 2020. |
| (2) |
The reported
beneficial ownership amount includes shares beneficially owned by
Pillar Invest Corporation (“Pillar GP”) its affiliates and consists
of (i) 21,100 shares of common stock held by Pillar
Pharmaceuticals I, L.P. (“Pillar I”), (ii) 20,820 shares of
common stock held by Pillar Pharmaceuticals II, L.P. (“Pillar II”),
(iii) 29,998 shares of common stock held by Pillar
Pharmaceuticals III, L.P. (“Pillar III”), (iv) 1,000 shares of
common stock held by Pharmaceuticals IV, L.P. (“Pillar IV”),
(v) 25,000 shares of common stock held by Pillar
Pharmaceuticals V, L.P. (“Pillar V”), (vi) 1,288,368 shares of
common stock held by Pillar Pharmaceuticals 6, L.P. (“Pillar 6”),
(vii) 5,427,697 shares of commons stock held by Pillar
Partners Foundation, L.P. (“Pillar Foundation”), (viii) 38,599
shares of common stock (including exercisable options within 60
days of July 31, 2020) held by Mr. Youssef El Zein, and
(ix) 190,117 shares of common stock held by Mr. Abude
Umari. Pillar I, Pillar II, Pillar III, Pillar IV, Pillar V, Pillar
6, Pillar Foundation and Pillar GP expressly disclaim beneficial
ownership of any shares of common stock held directly by
Messrs. Umari and El Zein, and Messrs. Umari and El Zein
expressly disclaim beneficial ownership of any shares of common
stock held directly by Pillar I, Pillar II, Pillar III, Pillar IV,
Pillar V, Pillar 6, Pillar Foundation and indirectly by Pillar GP.
Pillar has sole dispositive power and sole voting power over all
shares beneficially owned. |
| (3) |
In the July 2020
Private Placement (defined below), we issued First Closing
Pre-Funded Warrants (defined below) to purchase 2,014,234 shares of
common stock and First Closing Common Warrants (defined below) to
purchase 2,764,227 shares of common stock, and all such warrant
shares are Registrable Securities as defined in the Registration
Rights Agreement (defined below). The exercise of the First Closing
Pre-Funded Warrants and First Closing Common Warrants is subject to
the “Beneficial Ownership Limitation,” under which such exercise is
limited to the extent that immediately prior to or after giving
effect to such exercise, Pillar GP, together with its affiliates
and other attribution parties, would own more than 19.99% of the
total number of shares of common stock then issued and outstanding,
and cannot be included in Column 1. |
| (4) |
Represents the sum of
(i) 749,993 Shares (defined below), (ii) 2,014,234 shares
of common stock issuable upon exercise of the First Closing
Pre-Funded Warrants, and (iii) 2,764,227 shares of common
stock issuable upon exercise of the First Closing Common
Warrants. |
Registration Rights Agreement
On July 13, 2020, we entered into a Securities Purchase
Agreement (the “Securities Purchase Agreement”) with the selling
stockholder, providing for a private placement transaction (the
“July 2020 Private Placement”) exempt from the registration
requirements of the Securities Act, pursuant to which we issued and
sold, for $5.1 million of aggregate consideration (the “First
Closing”), (i) 749,993 shares (the “Shares”) of common stock,
(ii) pre-funded warrants to purchase up to 2,014,234 shares of
common stock (the “First Closing Pre-Funded Warrants”), at an
exercise price of $0.01 per share, in lieu of certain Shares to the
extent that purchasing such Shares will cause the selling
stockholder to beneficially own in excess of the Beneficial
Ownership Limitation, and (iii) warrants exercisable for
2,764,227 shares of common stock (the “First Closing Common
Warrants”), at an exercise price of $2.58 per share. Each Share (or
First Closing Pre-Funded Warrant) and the associated First Closing
Common Warrant had a combined purchase price of 1.845 ($1.72 per
share of common stock of First Closing Pre-Funded Warrant plus
$0.125 per First Closing Common Warrant).
Pursuant to the Securities Purchase Agreement, we also agreed to
issue and sell to the selling stockholder, for $5.1 million of
aggregate consideration (the “Second Closing”), (i) pre-funded
warrants to purchase up to 784,615 shares of common stock (the
“Second Closing Pre-Funded Warrants” and, together with the First
Closing Pre-Funded Warrants, the “Pre-Funded Warrants”), at an
exercise price of $0.01 per share, and (ii) warrants to
purchase up to 274,615 shares of common stock (the “Second Closing
Common Warrants” and, together with the First Closing Common
Warrants, the “Common Warrants” and, together with the Pre-Funded
Warrants, the “Warrants”), at an exercise price of $9.75 per share.
Each Second Closing Pre-Funded Warrant and the 0.35 associated
Second Closing Common Warrant will have a combined purchase price
of $6.50 ($6.45625 per Second Closing Pre-Funded Warrant plus
$0.04375 per 0.35 of a Second Closing Common Warrant). The Second
Closing will occur on or before the tenth Business Day following
the ORR Data Announcement as defined in the Securities Purchase
Agreement and will be held on or before the fifth day following
delivery of written notice by the selling stockholder to us.
The Warrants issuable pursuant to the Securities Purchase Agreement
are exercisable at any time or times, provided that the selling
stockholder will be prohibited, subject to certain exceptions, from
exercising a Warrant for shares of common stock to the extent that
the selling stockholder would beneficially own in excess of the
Beneficial Ownership Limitation, which percentage may be changed at
the selling stockholder’s election to a lower percentage at any
time or to a higher percentage not to exceed 19.99% upon 61 days’
notice to us. The Pre-Funded Warrants do not have an expiration
date. The Common Warrants will expire three years from the date of
issuance.
The securities issued and sold in connection with the
July 2020 Private Placement were offered pursuant to the
exemption provided in Section 4(a)(2) under the
Securities Act. The selling stockholder is either (i) an
“accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7) or (a)(8) under the Securities Act or
(ii) a “qualified institutional buyer” as defined in
Rule 144A(a) under the Securities Act.
In addition, concurrently with the execution of the Securities
Purchase Agreement, we entered into a registration rights agreement
(the “Registration Rights Agreement”) with the selling stockholder,
pursuant to which we agreed, following demand by the selling
stockholder to file with the SEC a Registration Statement on
Form S-3 covering the resale of all of the Registrable
Securities as defined in the Registration Rights Agreement as
promptly as reasonably practicable following such demand, and in
any event within 60 days of such demand.
The registration statement, of which this prospectus is a part, has
been filed in accordance with the Registration Rights
Agreement.
The foregoing summary description of the Registration Rights
Agreement does not purport to be complete and is qualified in its
entirety by reference to the full text of such agreement, which was
filed as an exhibit to our Current Report on Form 8-K, filed on July 15,
2020, and is incorporated by reference herein.
DESCRIPTION OF CAPITAL
STOCK
The following description of our capital stock is intended as a
summary only and therefore is not a complete description of our
capital stock. This description is based upon, and is qualified by
reference to, our certificate of incorporation and our bylaws, each
as amended from time to time, and by applicable provisions of
Delaware corporate law. You should read our certificate of
incorporation and bylaws, which are filed as exhibits to the
registration statement of which this prospectus forms a part, for
the provisions that are important to you.
Common Stock
We are authorized to issue 140,000,000 shares of common stock,
$0.001 par value per share. As of July 31, 2020, there were
35,199,246 shares of common stock outstanding.
Annual Meeting. Annual meetings of our stockholders are held
on the date designated in accordance with our bylaws. Written
notice must be mailed to each stockholder entitled to vote not less
than ten nor more than 60 days before the date of the meeting. The
presence in person or by proxy of the holders of record of a
majority of our issued and outstanding shares entitled to vote at
such meeting constitutes a quorum for the transaction of business
at meetings of the stockholders. Special meetings of the
stockholders may be called for any purpose by the board of
directors, the chief executive officer or, if the office of chief
executive officer is vacant, our president.
Voting Rights. For all matters submitted to a vote of
stockholders, each holder of common stock is entitled to one vote
for each share held. Our common stock does not have cumulative
voting rights.
Dividends. If our board of directors declares a dividend,
holders of common stock will receive payments from our funds that
are legally available to pay dividends. However, this dividend
right is subject to any preferential dividend rights that we have
granted or may grant with respect to our preferred stock.
Liquidation, Dissolution or Winding-Up. Upon our
liquidation, dissolution or winding-up, the holders of the common
stock will be entitled to share equally in all assets available for
distribution to stockholders, subject to preferences that may apply
to shares of preferred stock outstanding at that time. The amount
available for common stockholders is calculated after payment of
liabilities.
Other Rights and Restrictions. Holders of our common stock
do not have preemptive rights, and they have no right to convert
their common stock into any other securities. Our common stock is
not subject to redemption by us. The rights, preferences and
privileges of common stockholders are subject to the rights of the
stockholders of any series of preferred stock that are issued and
outstanding or that we may issue in the future. Our certificate of
incorporation and bylaws do not restrict the ability of a holder of
common stock to transfer his or her shares of common stock.
Put Right. Pursuant to the terms of a unit purchase
agreement dated as of May 5, 1998, we issued and sold a total
of 149,960 shares of common stock, which we refer to as the put
shares, at a price of $128.00 per share. Under the terms of the
unit purchase agreement, the initial purchasers, which we refer to
as the put holders, of the put shares have the right, which we
refer to as the put right, to require us to repurchase the put
shares. The put right may not be exercised by any put holder unless
all of the following occur:
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• |
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we liquidate, dissolve or wind up our affairs pursuant to
applicable bankruptcy law, whether voluntarily or
involuntarily; |
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• |
|
all of our indebtedness and obligations, including without
limitation the indebtedness under our outstanding notes, has been
paid in full; and |
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• |
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all rights of the holders of any series or class of capital stock
ranking prior and senior to the common stock with respect to
liquidation, including without limitation the series A convertible
preferred stock, have been satisfied in full. |
We may terminate the put right upon written notice to the put
holders if the closing sales price of our common stock exceeds
$256.00 per share for the 20 consecutive trading days prior to the
date of notice of termination. Because the put right is not
transferable, in the event that a put holder has transferred put
shares since May 5, 1998, the put right with respect to those
shares has terminated. As a consequence of the put right, in the
event we are liquidated, holders of shares of common stock that do
not have put rights with respect to such shares may receive smaller
distributions per share upon our liquidation than if there were no
put rights outstanding.
As of July 31, 2020, we had repurchased or received
documentation of the transfer of 49,993 put shares and 4,472 of the
put shares continued to be held in the name of put holders. We
cannot determine at this time what portion of the put rights of the
remaining 95,494 put shares have terminated.
Transfer Agent and Registrar. Computershare Trust Company,
N.A. is transfer agent and registrar for the common stock.
The Nasdaq Capital Market. Our common stock is listed on the
Nasdaq Capital Market under the symbol “IDRA.”
Preferred Stock
We are authorized to issue 5,000,000 shares of preferred stock,
$0.01 par value per share, of which 1,500,000 has been designated
Series A convertible preferred stock, 277,921 has been
designated Series B1 redeemable convertible preferred stock,
98,685 has been designated Series B2 redeemable convertible
preferred stock, 82,814 has been designated Series B3
redeemable convertible preferred stock, 82,814 has been designated
Series B4 redeemable convertible preferred stock. As of
July 31, 2020, there were 655 shares of Series A
preferred stock outstanding and 23,684 shares of Series B1
preferred stock outstanding. No other shares of preferred stock
were outstanding.
We are authorized to issue “blank check” preferred stock, which may
be issued in one or more series upon authorization of our board of
directors. Our board of directors is authorized to fix the
designation of the series, the number of authorized shares of the
series, dividend rights and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences and
any other rights, powers, preferences and limitations applicable to
each series of preferred stock. The authorized shares of our
preferred stock are available for issuance without further action
by our stockholders, unless such action is required by applicable
law or the rules of any stock exchange on which our securities
may be listed. If the approval of our stockholders is not required
for the issuance of shares of our preferred stock, our board may
determine not to seek stockholder approval.
A series of our preferred stock could, depending on the terms of
such series, impede the completion of a merger, tender offer or
other takeover attempt. Our board of directors will make any
determination to issue such preferred shares based upon its
judgment as to the best interests of our stockholders. Our
directors, in so acting, could issue preferred stock having terms
that could discourage an acquisition attempt through which an
acquirer may be able to change the composition of our board of
directors, including a tender offer or other transaction that some,
or a majority, of our stockholders might believe to be in their
best interests or in which stockholders might receive a premium for
their stock over the then-current market price of the stock.
Effects of Authorized but Unissued Stock
We have shares of common stock and preferred stock available for
future issuance without stockholder approval, subject to any
limitations imposed by the listing standards of the Nasdaq Capital
Market. We may utilize these additional shares for a variety of
corporate purposes, including for future public offerings to raise
additional capital, or facilitate corporate acquisitions or for
payment as a dividend on our capital stock. The existence of
unissued and unreserved common stock and preferred stock may enable
our board of directors to issue shares to persons friendly to
current management or to issue preferred stock with terms that
could have the effect of making it more difficult for a third party
to acquire, or could discourage a third party from seeking to
acquire, a controlling interest in our company by means of a
merger, tender offer, proxy contest or otherwise. In addition, if
we issue preferred stock, the issuance could adversely affect the
voting power of holders of common stock, and the likelihood that
such holders will receive dividend payments and payments upon
liquidation.
Delaware Law and Specified Certificate of Incorporation and
Bylaw Provisions
Staggered Board. Our certificate of incorporation and bylaws
provide for the division of our board of directors into three
classes as nearly equal in size as possible with staggered
three-year terms. In addition, our certificate of incorporation and
bylaws provide that directors may only be removed for cause and
then only by the affirmative vote of the holders of two-thirds of
the shares of our capital stock entitled to vote. Under our
certificate of incorporation and bylaws, any vacancy on the board
of directors, however occurring, including a vacancy resulting from
an enlargement of the board, may only be filled by vote of a
majority of the directors then in office. The classification of the
board of directors and the limitations on the removal of directors
and filling of vacancies could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third
party from acquiring, control of us.
Stockholder Action; Special Meeting of Stockholders. Our
certificate of incorporation and bylaws provide that stockholders
may take action only at a duly called annual or special meeting of
stockholders and may not take action by written consent. Our
certificate of incorporation and bylaws further provide that
special meetings of our stockholders may be called only by a
majority of the board of directors or by our chief executive
officer or, if the office of chief executive officer is vacant, our
president. In no event may our stockholders call a special meeting
of stockholders.
Advance Notice Requirements for Stockholder Proposals and
Director Nominations. Our bylaws provide that stockholders
seeking to bring business before an annual meeting of stockholders,
or to nominate candidates for election as directors at an annual
meeting of stockholders, must meet specified procedural
requirements. These provisions may preclude stockholders from
bringing matters before an annual meeting of stockholders or from
making nominations for directors at an annual or special meeting of
stockholders.
Supermajority Votes Required. The Delaware General
Corporation Law provides generally that the affirmative vote of a
majority of the shares entitled to vote on any matter is required
to amend a corporation’s certificate of incorporation or bylaws,
unless a corporation’s certificate of incorporation or bylaws, as
the case may be, requires a greater percentage. Our certificate of
incorporation and bylaws require the affirmative vote of the
holders of at least 75% of the shares of our capital stock issued
and outstanding and entitled to vote to amend or repeal any of the
provisions described in the prior three paragraphs.
Business Combinations. We are subject to Section 203 of
the Delaware General Corporation Law. Subject to certain
exceptions, Section 203 prevents a publicly held Delaware
corporation from engaging in a “business combination” with any
“interested stockholder” for three years following the date that
such person became an interested stockholder, unless either the
interested stockholder attained such status with the approval of
our board of directors, the business combination is approved by our
board of directors and stockholders in a prescribed manner or the
interested stockholder acquired at least 85% of our outstanding
voting stock in the transaction in which such person became an
interested stockholder. A “business combination” includes, among
other things, a merger or consolidation involving us and the
“interested stockholder” and the sale of more than 10% of our
assets. In general, an “interested stockholder” is any entity or
person beneficially owning 15% or more of our outstanding voting
stock and any entity or person affiliated with or controlling or
controlled by such entity or person.
Directors’ Liability. Our certificate of incorporation
limits the personal liability of directors for breach of fiduciary
duty to the maximum extent permitted by the Delaware General
Corporation Law and provides that no director will have personal
liability to us or to our stockholders for monetary damages for
breach of fiduciary duty as a director. However, these provisions
do not eliminate or limit the liability of any of our
directors:
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• |
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for any breach of the director’s duty of loyalty to us or our
stockholders; |
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• |
|
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; |
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• |
|
for voting or assenting to unlawful payments of dividends, stock
repurchases or other distributions; or |
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• |
|
for any transaction from which the director derived an improper
personal benefit. |
Exclusive Forum Charter Provision. Our certificate of incorporation
requires that the Court of Chancery of the State of Delaware will,
to the fullest extent permitted by applicable law, be the sole and
exclusive forum for the following:
|
· |
any derivative action or proceeding brought on behalf of the
corporation; |
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· |
any action asserting a claim of breach of a fiduciary duty owed
by any director, officer or other employee of the corporation to
the corporation or the corporation’s stockholders, creditors or
other constituents; |
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· |
any action asserting a claim against the corporation arising
pursuant to any provision of the Delaware General Corporation Law,
the corporation’s certificate of incorporation or the bylaws of the
corporation; or |
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· |
any action asserting a claim against the corporation governed
by the internal affairs doctrine, in each such case subject to said
Court of Chancery having personal jurisdiction over the
indispensable parties named as defendants therein. |
Provided, that, if and only if the Court of Chancery of the State
of Delaware dismisses any of the foregoing actions for lack of
subject matter jurisdiction, any such action or actions may be
brought in another state court sitting in the State of Delaware.
Because the applicability of the exclusive forum provision is
limited to the extent permitted by applicable law, we do not intend
that the exclusive forum provision would apply to suits brought to
enforce any duty or liability created by the Exchange Act or any
other claim for which the federal courts have exclusive
jurisdiction, and acknowledge that federal courts have concurrent
jurisdiction over all suits brought to enforce any duty or
liability created by the Securities Act. We note that there is
uncertainty as to whether a court would enforce the provision and
that investors cannot waive compliance with the federal securities
laws and the rules and regulations thereunder. Although we
believe this provision benefits us by providing increased
consistency in the application of Delaware law in the types of
lawsuits to which it applies, the provision may have the effect of
discouraging lawsuits against our directors and officers.
PLAN OF DISTRIBUTION
The selling stockholder may offer and sell the shares covered by
this prospectus from time to time. The term “selling stockholder”
includes pledgees, donees, transferees or other
successors-in-interest selling shares received after the date of
this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other non-sale related transfer. The
selling stockholder will act independently of us in making
decisions with respect to the timing, manner and size of each sale.
Such sales may be made on one or more exchanges or in the
over-the-counter market or otherwise, at prices and under terms
then prevailing or at prices related to the then current market
price or in negotiated transactions. Each selling stockholder may
sell its shares by one or more of, or a combination of, the
following methods:
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• |
|
purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus; |
| |
• |
|
ordinary brokerage transactions and transactions in which the
broker solicits purchasers; |
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• |
|
block trades in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction; |
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• |
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an over-the-counter distribution; |
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• |
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an exchange distribution in accordance with the rules of the
applicable exchange; |
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• |
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in privately negotiated transactions; |
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• |
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an underwritten public offering; |
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• |
|
through the writing or settlement of options or other hedging
transactions, whether through an options exchange or
otherwise; |
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• |
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delivery of securities in settlement of short sales; and |
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• |
|
any other method permitted pursuant to applicable law. |
In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than under this
prospectus.
In connection with distributions of the shares or otherwise, each
selling stockholder is permitted to enter into hedging transactions
with broker-dealers or other financial institutions. In connection
with such permitted transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the
course of hedging the positions they assume with a selling
stockholder. Each selling stockholder may also sell the common
stock short and redeliver the shares to close out such permitted
short positions. Each selling stockholder may also enter into
option or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or
other financial institution of shares offered by this prospectus,
which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus, as supplemented or amended to
reflect such transaction. Each selling stockholder may also pledge
shares to a broker-dealer or other financial institution, and, upon
a default, such broker-dealer or other financial institution, may
effect sales of the pledged shares pursuant to this prospectus, as
supplemented or amended to reflect such transaction.
In effecting sales, broker-dealers or agents engaged by a selling
stockholder may arrange for other broker-dealers to participate.
Broker-dealers or agents may receive commissions, discounts or
concessions from the selling stockholder in amounts to be
negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling
stockholder and any broker-dealers who execute sales for the
selling stockholder may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. Any
profits realized by a selling stockholder and the compensation of
any broker-dealers may be deemed to be underwriting discounts and
commissions.
In order to comply with the securities laws of some states, if
applicable, the shares must be sold in those states only through
registered or licensed brokers or dealers. In addition, some states
may restrict the selling stockholder from selling their respective
shares unless such shares have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
We have advised the selling stockholder that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to
sales of shares in the market and to the activities of the selling
stockholder and their respective affiliates. In addition, we will
make copies of this prospectus available to the selling stockholder
for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholder may indemnify any
broker-dealer that participates in transactions involving the sale
of the shares against some liabilities, including liabilities
arising under the Securities Act.
At the time a particular offer of shares is made, if required, we
will distribute a prospectus supplement that will set forth the
number of shares being offered and the terms of this offering,
including the name of any underwriter, dealer or agent, the
purchase price paid by any underwriter, any discount, commission
and other item constituting compensation, any discount, commission
or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public. In addition, we may amend or
supplement this prospectus from time to time to describe a specific
plan of distribution.
We have agreed to indemnify the selling stockholder against some
liabilities, including some liabilities under the Securities
Act.
We have agreed with the selling stockholder to cause the
registration statement of which this prospectus constitutes a part
to remain effective until such time as all of the shares covered by
this prospectus have been sold or may be sold freely without
limitations or restrictions as to volume or manner of sale pursuant
to Rule 144 under the Securities Act.
LEGAL MATTERS
The validity of the shares offered by this prospectus has been
passed upon by Morgan, Lewis & Bockius LLP, Philadelphia,
Pennsylvania.
EXPERTS
Ernst & Young LLP, independent registered public
accounting firm, has audited our financial statements included in
our Annual Report on Form 10-K for
the year ended December 31, 2019 and the effectiveness of
our internal control over financial reporting as of
December 31, 2019, as set forth in their reports (which
contain an explanatory paragraph describing conditions that raise
substantial doubt about the Company's ability to continue as a
going concern as described in Note 1 to the financial statements),
which are incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements
are incorporated by reference in reliance on Ernst &
Young LLP’s reports, given on their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at
http://www.sec.gov. Copies of certain information filed by
us with the SEC are also available on our website at
http://www.iderapharma.com. Our website is not a part of
this prospectus and is not incorporated by reference in this
prospectus.
This prospectus is part of a registration statement we filed with
the SEC. This prospectus omits some information contained in the
registration statement in accordance with SEC rules and
regulations. You should review the information and exhibits in the
registration statement for further information about us and the
securities we are offering. Statements in this prospectus
concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to these
filings. You should review the complete document to evaluate these
statements.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus
much of the information we file with the SEC, which means that we
can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate
by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future
filings with the SEC, this prospectus is continually updated and
those future filings may modify or supersede some of the
information included or incorporated in this prospectus. This means
that you must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus
or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference
the documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (in each case, other than those documents or the portions of
those documents not deemed to be filed) between the date of the
initial registration statement and the effectiveness of the
registration statement and following the effectiveness of the
registration statement until the offering of the securities under
the registration statement is terminated or completed:
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(2) |
Our Quarterly Reports on Form 10-Q for the fiscal quarter
ended March 31, 2020 and June 30, 2020;
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|
|
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(3) |
Our Current Reports on Form 8-K filed on January 15, 2020 (Item 5.02
and related exhibits 10.1 and 10.2 only), January 27, 2020, April 7, 2020, May 1, 2020 (Item 8.01
only), May 14, 2020, May 18, 2020, June 15, 2020 and July 15, 2020;
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(4) |
The description of our common stock contained in our Registration Statement on
Form 8-A filed on December 4, 2003, as amended on
August 17, 2007 and as
further amended on December 7, 2007, including
any amendments or reports filed for the purpose of updating such
description.
|
You may request a copy of these documents, which will be provided
to you at no cost, by writing or telephoning us using the following
contact information below. We will provide copies of the exhibits
to these filings only if they are specifically incorporated by
reference in these filings.
Idera Pharmaceuticals, Inc.
505 Eagleview Blvd., Suite 212
Exton, Pennsylvania 19341
Attention: Investor Relations
(484) 348-1600
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred
in connection with the sale and distribution of the securities
being registered hereby, all of which will be borne by Idera
Pharmaceuticals (except any underwriting discounts and commissions
and expenses incurred by the selling stockholder for brokerage,
accounting, tax or legal services or any other expenses incurred by
the selling stockholder in disposing of the shares). All amounts
shown are estimates except the SEC registration fee.
|
SEC registration fee |
|
$ |
1,410.07 |
|
|
Legal fees and expenses |
|
$ |
20,000.00 |
|
|
Accounting fees and expenses |
|
$ |
15,000.00 |
|
|
Miscellaneous expenses |
|
$ |
5,000.00 |
|
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|
|
|
|
|
Total expenses |
|
$ |
41,410.07 |
|
Item 15. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary
damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a
law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an
improper personal benefit.
Section 145 of the Delaware General Corporation Law provides
that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a
party by reason of such position, if such person shall have acted
in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to
believe his conduct was unlawful; provided that, in the case of
actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the
circumstances.
Article EIGHTH of the registrant’s Restated Certificate of
Incorporation, as amended (the “Certificate of Incorporation”)
provides that no director of the registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as
a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of
liability of directors for breach of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides
that a director or officer of the registrant (a) shall be
indemnified by the registrant against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement
incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the
registrant) brought against him by virtue of his position as a
director or officer of the registrant if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the
best interests of the registrant, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful and (b) shall be indemnified by the
registrant against all expense (including attorneys’ fees) and
amounts paid in settlement incurred in connection with any action
by or in the right of the registrant brought against him by virtue
of his position as a director or officer of the registrant if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the registrant, except
that no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the
registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the
foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is
required to be indemnified by the registrant against all expenses
(including attorneys’ fees) incurred in connection therewith.
Expenses shall be advanced to a director or officer at his request,
provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification
for such expenses.
Indemnification is required to be made unless the registrant
determines that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination
by the registrant that the director or officer did not meet the
applicable standard of conduct required for indemnification, or if
the registrant fails to make an indemnification payment within 60
days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent
determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of
indemnification, the director or officer must give the registrant
notice of the action for which indemnity is sought and the
registrant has the right to participate in such action or assume
the defense thereof.
Article NINTH of the Certificate of Incorporation further
provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General
Corporation Law is amended to expand the indemnification permitted
to directors or officers the registrant must indemnify those
persons to the full extent permitted by such law as so amended.
The registrant has obtained directors and officers insurance for
the benefit of its directors and its officers.
The registrant has entered into indemnification agreements with its
directors and officers. In general, these agreements provide that
the registrant will indemnify the director or officer to the
fullest extent permitted by law for claims arising in his or her
capacity as a director or officer of the registrant or in
connection with their service at the registrant's request for
another corporation or entity. The indemnification agreements also
provide for procedures that will apply in the event that a director
or officer makes a claim for indemnification and establish certain
presumptions that are favorable to the director or officer.
Item 16. Exhibits
The exhibits to this registration statement are listed in the
Exhibit Index to this registration statement and are
incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
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(1) |
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the “Securities Act”); |
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(ii) |
To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and |
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(iii) |
To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement; |
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that are incorporated by reference in
this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of
this registration statement.
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(2) |
That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering thereof. |
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(3) |
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering. |
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(4) |
That, for the purpose of
determining liability under the Securities Act to any purchaser,
each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A (§230.430A of this
chapter), shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in
a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use. |
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(5) |
The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under
the Securities Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
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(6) |
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the indemnification provisions described herein, or
otherwise, the Registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue. |
EXHIBIT INDEX
|
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
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|
|
4.1 |
|
Restated Certificate of Incorporation
of the Registrant, as amended (incorporated by reference to
Exhibit 3.1 to the Registrant's Quarterly Report on
Form 10-Q filed on August 2, 2018) |
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|
|
4.2 |
|
Certificate of Amendment to Restated
Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Current Report on
Form 8-K filed on May 18, 2020) |
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4.3 |
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Amended and Restated By-laws of the
Registrant (incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K filed on March 7,
2018) |
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4.4 |
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Registration Rights Agreement, dated
July 13, 2020, among the Registrant and the Selling
Stockholder named therein (incorporated by reference to
Exhibit 4.3 to the Registrant's Current Report on
Form 8-K filed on July 15, 2020) |
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5.1* |
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Opinion of Morgan,
Lewis & Bockius LLP |
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23.1* |
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Consent of Ernst & Young
LLP |
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23.2* |
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Consent of Morgan,
Lewis & Bockius LLP (included in Exhibit 5.1 filed
herewith) |
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24.1* |
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Power of Attorney (included on
the signature page of this registration statement) |
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Exton, Commonwealth of Pennsylvania, on
August 4, 2020.
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IDERA
PHARMACEUTICALS, INC. |
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By: |
/s/ VINCENT J. MILANO
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Vincent J. Milano |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and
directors Idera Pharmaceuticals, Inc., a Delaware corporation
(the "Corporation"), hereby constitute and appoint each of Vincent
J. Milano and John J. Kirby the true and lawful agents and
attorneys-in-fact of the undersigned with full power and authority
in said agents and attorneys-in-fact, and in any one or more of
them, to sign for the undersigned and in their respective names as
an officer/director of the Corporation, any and all amendments
(including post-effective amendments) to this registration
statement on Form S-3 (or any other registration statement for
the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act) and to file the
same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, and with
full power of substitution, hereby ratifying and confirming all
that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ VINCENT J. MILANO |
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President, Chief Executive Officer and Director |
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August 4, 2020 |
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Vincent J. Milano |
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(Principal Executive Officer) |
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/s/ JOHN J. KIRBY |
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Chief Financial Officer (Principal |
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August 4, 2020 |
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John J. Kirby |
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Financial and Accounting Officer) |
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/s/ JAMES A. GERAGHTY |
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Chairman of the Board of Directors |
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August 4, 2020 |
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James A. Geraghty |
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/s/ CRISTINA CSIMMA |
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Director |
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August 4, 2020 |
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Cristina Csimma, Pharm.D., M.H.P. |
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/s/ MICHAEL DOUGHERTY |
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Director |
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August 4, 2020 |
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Michael Dougherty |
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/s/ MARK GOLDBERG |
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Director |
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August 4, 2020 |
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Mark Goldberg, M.D. |
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/s/ MAXINE GOWEN |
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Director |
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August 4, 2020 |
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Maxine Gowen, Ph.D. |
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Director |
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Howard H. Pien |
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/s/ CAROL A. SCHAFER |
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Director |
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August 4, 2020 |
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Carol A. Schafer |
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