As filed with the Securities and Exchange Commission on
September 2, 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)
|
Delaware |
|
04-3072298 |
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
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):
| Large
accelerated filer |
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¨ |
|
Accelerated
filer |
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x |
| |
|
|
|
| Non-accelerated
filer |
|
¨ |
|
Smaller
reporting company |
|
x |
| |
|
|
|
|
|
|
| |
|
|
|
Emerging growth company |
|
¨ |
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
|
Title of Each Class of
Securities to be Registered
|
|
Amount
to be
Registered(1)
|
|
Proposed
Maximum
Offering Price
Per Share(2)
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
Amount
of
Registration Fee |
|
Common
Stock, $0.001 par value per share |
|
4,736,800 |
|
$2.02 |
|
$9,568,336 |
|
$1,241.97 |
|
(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 August 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
September 2, 2020
PROSPECTUS
IDERA PHARMACEUTICALS, INC.
4,736,800 SHARES OF COMMON STOCK
This prospectus relates to the possible resale from time to time of
up to 4,736,800 shares of common stock of Idera Pharmaceuticals,
Inc., including 2,368,400 shares of common stock that are issuable
upon the conversion of 23,684 shares of Series B1 Preferred Stock
(the “Series B1 Preferred Stock”) and 2,368,400 shares of common
stock that are issuable upon the exercise of warrants to purchase
common stock that are accompanying the Series B1 Preferred Stock
(the “Warrants”) 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 September 1, 2020, the closing sale price of our
common stock on the Nasdaq Capital Market was $2.05 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 (“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 multiple 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 |
|
4,736,800
shares |
| |
|
| Use
of proceeds |
|
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 Warrants. See the
section of this prospectus titled “Use of Proceeds.” |
| |
|
| Nasdaq
Capital Market symbol |
|
“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.” Assuming the exercise of
all of the Warrants for 2,368,400 shares of common stock, we will
receive aggregate gross proceeds of approximately $3.60
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 August 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.
|
Name of Selling Stockholder |
|
1
Shares of Common Stock
Beneficially Owned Prior to
Offering |
|
|
2
Shares of
Common Stock
Issuable Upon
Conversion of
Series B Preferred
Stock and Exercise
of Warrants Prior
to Offering |
|
|
3
Shares of
Common Stock
Being Offered |
|
|
4
Shares of Common Stock to
be Beneficially Owned After
Offering |
|
| |
|
Number |
|
|
Percentage |
|
|
Number |
|
|
Number |
|
|
Number |
|
|
Percentage |
|
|
Entities affiliated with Baker Bros. Advisors LP |
|
|
4,608,786 |
(1) |
|
|
13.1 |
%(2) |
|
|
4,736,800 |
(3) |
|
|
4,736,800 |
(4) |
|
|
4,608,786 |
|
|
|
11.5 |
% |
| (1) |
The
reported beneficial ownership amount includes shares beneficially
owned by Baker Bros. Advisors LP and its affiliates. |
| (2) |
Based on 35,199,246 shares of our
common stock outstanding on August 31, 2020. |
| (3) |
In
the December 2019 Private Placement (defined below), we issued to
the selling stockholder 23,684 shares of Series B1 Preferred Stock, which are convertible
into 2,368,400 shares of our common stock, and Warrants to purchase
2,368,400 shares of common stock, and all such securities are
Registrable Securities as defined in the Registration Rights
Agreement (defined below). The conversion of the Series B1
Preferred Stock and exercise of the Warrants are 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, Baker Bros. Advisors LP, together with its
affiliates and other attribution parties, would own more than 4.99%
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) 2,368,400
shares of common stock issuable upon the conversion of the Series
B1 Preferred Stock and (ii) 2,368,400 shares of common stock
issuable upon exercise of the Warrants. |
Registration Rights Agreement
On December 23, 2019, we entered into a Securities Purchase
Agreement (the “Securities Purchase Agreement”) with the selling
stockholder, providing for a private placement transaction (the
“December 2019 Private Placement”) exempt from the registration
requirements of the Securities Act, pursuant to which we issued and
sold, for $3.9 million of aggregate consideration (the “First
Tranche”), (i) 23,684 shares of Series B1 Convertible Preferred
Stock, par value $0.01 per share (the “Series B1 Preferred Stock”),
at a purchase price of $152 per share and a conversion price of
$1.52 per share, and (ii) warrants that are accompanying the Series
B1 Preferred Stock (the “Warrants”) to purchase up to 2,368,400
shares of common stock (or, if the selling stockholder elects to
exercise the Warrants for shares of Series B1 Preferred Stock,
23,684 shares of Series B1 Preferred Stock), at an exercise price
of $1.52 per share (or, if the selling stockholder elects to
exercise the Warrants for shares of Series B1 Preferred Stock
(“Series B1 Preferred Warrant Shares”), $152 per Series B1
Preferred Warrant Share). Each share of the Series B1 Preferred
Stock and the associated Warrant had a combined purchase price on
an as converted basis of $1.645.
Pursuant to the Securities Purchase Agreement, we have also agreed
to issue and sell to the selling stockholder, at their option and
subject to certain conditions, shares of Series B2 Convertible
Preferred Stock, par value $0.01 per share (“Series B2 Preferred
Stock”), Series B3 Convertible Preferred Stock, par value $0.01 per
share (“Series B3 Preferred Stock”), and Series B4 Convertible
Preferred Stock, par value $0.01 per share (“Series B4 Preferred
Stock” and, together with the Series B1 Preferred Stock, Series B2
Preferred Stock and Series B3 Preferred Stock, the “Series B
Preferred Stock”), and additional warrants to purchase common
stock, for aggregate gross proceeds of up to an additional $87.6
million over a 21-month period.
Each share of Series B Preferred Stock is initially convertible
into 100 shares of common stock (subject to adjustment as provided
in the Certificate of Designations, Preferences and Rights of
Series B1 Convertible Preferred Stock, Series B2 Convertible
Preferred Stock, Series B3 Convertible Preferred Stock and Series
B4 Convertible Preferred Stock) at any time at the option of the
selling stockholder, provided that the selling stockholder will be
prohibited, subject to certain exceptions, from converting shares
of Series B Preferred Stock 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 stockholders’s election to a percentage
not to exceed 19.99%, upon 61 days’ notice to us.
Additionally, we agreed to issue and sell the following securities
in three subsequent tranches: (i) a second tranche consisting of
98,685 shares of Series B2 Preferred Stock, at a purchase price of
$152 per share and a conversion price of $1.52 per share, and
accompanying warrants to purchase up to 9,868,500 shares of common
stock, or, if the selling stockholder elects to exercise the
warrants for shares of Series B1 Preferred Stock, 98,685 shares of
Series B1 Preferred Stock, at an exercise price of $1.52 per share,
or, if the selling stockholder elects to exercise the warrants for
Series B1 Preferred Warrant Shares, $152 per Series B1 Preferred
Warrant Share; (ii) a third tranche consisting of 82,418 shares of
Series B3 Preferred Stock, at a purchase price of $182 per share
and a conversion price of $1.82 per share, and accompanying
warrants to purchase up to 6,593,440 shares of common stock, or, if
the selling stockholder elects to exercise the warrants for shares
of Series B1 Preferred Stock, 65,934 shares of Series B1 Preferred
Stock, at an exercise price of $1.82 per share, or, if the selling
stockholder elects to exercise the warrants for Series B1 Preferred
Warrant Shares, $182 per Series B1 Preferred Warrant Share; and
(iii) a fourth tranche consisting of 82,418 shares of Series B4
Preferred Stock, at a purchase price of $182 per share and a
conversion price of $1.82 per share, and accompanying warrants to
purchase up to 6,593,440 shares of common stock, or, if the selling
stockholder elects to exercise the warrants for shares of Series B1
Preferred Stock, 65,934 shares of Series B1 Preferred Stock, at an
exercise price of $1.82 per share, or, if the selling stockholder
elects to exercise the warrants for Series B1 Preferred Warrant
Shares, $182 per Series B1 Preferred Warrant Share. The Warrants
and the warrants accompanying the Series B2 Preferred Stock, Series
B3 Preferred Stock and Series B4 Preferred Stock are collectively
referred to as the “Series B Warrants.”
The purchase and sale of the securities issuable under the second,
third and fourth tranches may occur in up to three separate
closings, each to be conducted at the selling stockholder’s
discretion within five days’ notice to the Company, and the right
of the selling stockholder to purchase such securities will expire
(i) nine months after May 12, 2020, with respect to the Series B2
Preferred Stock, (ii) 15 months after May 12, 2020, with respect to
the Series B3 Preferred Stock, and (iii) 21 months after May 12,
2020, with respect to the Series B4 Preferred Stock, if not
exercised prior to that date. We have the right to decline the
Series B4 Preferred Stock investment if our common stock trades at
$7.60 for 20 days out of 30 days subsequent to the closing of the
Series B3 Preferred Stock investment.
The Series B 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 Series B 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 percentage not to exceed 19.99%, upon 61 days’ notice to us. The
Series B Warrants will expire seven years from the date of
issuance.
The securities issued and sold in connection with the December 2019
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 December 23,
2019, 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 August 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:
|
• |
we
liquidate, dissolve or wind up our affairs pursuant to applicable
bankruptcy law, whether voluntarily or involuntarily, |
|
• |
all
of our indebtedness and obligations, including without limitation
the indebtedness under our outstanding notes, has been paid in
full, and |
|
• |
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 August 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 August 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:
|
• |
for
any breach of the director’s duty of loyalty to us or our
stockholders |
|
• |
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; |
|
• |
for
voting or assenting to unlawful payments of dividends, stock
repurchases or other distributions; or |
|
• |
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; |
|
• |
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; |
|
• |
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 |
|
• |
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:
|
• |
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; |
|
• |
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; |
|
• |
an
over-the-counter distribution; |
|
• |
an
exchange distribution in accordance with the rules of the
applicable exchange; |
|
• |
in
privately negotiated transactions; |
|
• |
an
underwritten public offering; |
|
• |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise; |
|
• |
delivery
of securities in settlement of short sales; and |
|
• |
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:
|
(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; |
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 |
|
$ |
1,241.97 |
|
| Legal
fees and expenses |
|
$ |
20,000.00 |
|
|
Accounting fees and expenses |
|
$ |
15,000.00 |
|
|
Miscellaneous expenses |
|
$ |
5,000.00 |
|
|
Total expenses |
|
$ |
41,241.97 |
|
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:
| |
(1) |
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement: |
| |
(i) |
To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the “Securities
Act”); |
| |
(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 |
| |
(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.
| |
(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. |
| |
(3) |
To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering. |
|
(4) |
That, for the purpose of determining
liability under the Securities Act to any purchaser, 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. |
|
(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. |
|
(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 |
| |
|
|
|
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) |
| |
|
|
|
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) |
| |
|
|
|
4.3 |
|
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) |
| |
|
|
|
5.1* |
|
Opinion of Morgan, Lewis
& Bockius LLP |
| |
|
|
|
10.1 |
|
Securities Purchase
Agreement, dated December 23, 2019, among the Registrant and the
Selling Stockholder named therein (incorporated by reference to
Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed
on December 23, 2019) |
| |
|
|
|
23.1* |
|
Consent of Ernst & Young LLP |
| |
|
|
|
23.2* |
|
Consent of Morgan, Lewis
& Bockius LLP (included in Exhibit 5.1 filed
herewith) |
| |
|
|
|
24.1* |
|
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 September 2,
2020.
| |
IDERA
PHARMACEUTICALS, INC. |
| |
|
|
| |
By: |
/s/
VINCENT J. MILANO |
| |
|
Vincent J.
Milano |
| |
|
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.
|
Signature |
|
Title |
|
Date |
| |
|
|
| /s/
VINCENT J. MILANO |
|
President,
Chief Executive Officer and Director |
|
September 2,
2020 |
| Vincent J.
Milano |
|
(Principal
Executive Officer) |
|
|
| |
|
|
| /s/
JOHN J. KIRBY |
|
Chief
Financial Officer (Principal |
|
September 2,
2020 |
| John J.
Kirby |
|
Financial
and Accounting Officer) |
|
|
| |
|
|
| /s/
JAMES A. GERAGHTY |
|
Chairman of
the Board of Directors |
|
September 2,
2020 |
| James A.
Geraghty |
|
|
|
|
| |
|
|
| /s/
CRISTINA CSIMMA |
|
Director |
|
September 2,
2020 |
| Cristina Csimma,
Pharm.D., M.H.P. |
|
|
|
|
| |
|
|
| /s/
MICHAEL DOUGHERTY |
|
Director |
|
September 2,
2020 |
| Michael
Dougherty |
|
|
|
|
| |
|
|
| /s/
MARK GOLDBERG |
|
Director |
|
September 2,
2020 |
| Mark Goldberg,
M.D. |
|
|
|
|
| |
|
|
| /s/
MAXINE GOWEN |
|
Director |
|
September 2,
2020 |
| Maxine Gowen,
Ph.D. |
|
|
|
|
| |
|
|
|
|
|
|
|
Director |
|
|
| Howard H.
Pien |
|
|
|
|
| |
|
|
|
|
| /s/
CAROL A. SCHAFER |
|
Director |
|
September 2,
2020 |
| Carol A.
Schafer |
|
|
|
|
