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TABLE OF CONTENTS
Table of Contents
As filed with the U.S. Securities and Exchange Commission on February 6, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VAXART, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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2834
(Primary Standard Industrial
Classification Code Number)
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59-1212264
(I.R.S. Employer
Identification No.)
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290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
Wouter W. Latour M.D.
President and Chief Executive Officer
290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copies to:
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John T. McKenna
Josh Seidenfeld
Cooley LLP
3175 Hanover Street
Palo Alto, California 94304
(650) 843-5000
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Gary Emmanuel
Heidi Steele
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
(212) 547-5400
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Approximate date of commencement of proposed sale to public: As soon as practicable after the effective date of this registration statement.
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, as amended, check the following box:
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If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective Registration Statement for the same offering:
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities
Act Registration Statement number of the earlier effective Registration Statement for the same offering:
o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective Registration Statement for the same offering:
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an
emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large Accelerated Filer
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Accelerated Filer
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Non-accelerated Filer
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Smaller Reporting Company
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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 any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration Fee(1)
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Common Stock, par value $0.10 per share
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$ (2)
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Pre-funded warrants to purchase shares of common stock and common stock issuable upon exercise thereof
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$ (3)
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Representative warrants to purchase shares of common stock and common stock issuable upon exercise thereof
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$ (4)
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Total
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$11,500,000(5)
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$1,394
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(1)
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Estimated
solely for purposes of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act.
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(2)
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Includes shares
that the underwriters have the option to purchase.
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(3)
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The
proposed maximum aggregate offering price of the common stock proposed to be sold in the offering will be reduced on a dollar-for-dollar basis based on the
aggregate offering price of the pre-funded warrants offered and sold in the offering (plus the aggregate exercise price of the common stock issuable upon exercise of the pre-funded warrants), and as
such the proposed aggregate maximum offering price of the common stock and pre-funded warrants (including the common stock issuable upon exercise of the pre-funded warrants), if any, is
$ .
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(4)
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Represents
warrants issuable to H.C. Wainwright & Co., LLC (the "representative warrants") to purchase a number of shares of common stock equal
to 7% of the number of shares of common stock and pre-funded warrants being offered at an exercise price equal to 125% of the public offering price. Resales of the representative warrants on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, are registered hereby. See "Underwriting."
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(5)
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Pursuant
to Rule 416, the securities being registered hereunder include such indeterminate number of additional securities as may be issuable to prevent
dilution resulting from stock splits, dividends or similar transactions.
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 that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as
amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting offers to
buy these securities in any state where such offer or sale is not permitted.
PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION, DATED FEBRUARY 6,
2019
Shares of
Common Stock
Pre-Funded Warrants to Purchase Shares of Common Stock
We are offering up to shares of our common stock. We are also offering to certain purchasers whose purchase
of shares of common
stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser,
9.99%) of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if any such purchaser so chooses, pre-funded warrants, in lieu of shares of
common stock that would otherwise result in such purchaser's beneficial ownership exceeding 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock. Each pre-funded warrant
will be exercisable for one share of our common stock. The purchase price of each pre-funded warrant will be equal to the price at which a share of common stock is sold to the public in this offering,
minus $ , and the exercise price of each pre-funded warrant will be $ per share. The pre-funded warrants
will be immediately exercisable and may be exercised at any time
until all of the pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any pre-funded warrants sold in this offering. For each
pre-funded warrant we sell, the number of shares of common stock we are offering will be decreased on a one-for-one basis. Our common stock is listed on the Nasdaq Capital Market under the symbol
"VXRT." On February 5, 2019, the last reported sale price of our common stock was $2.22 per share. The actual public offering price per share of common stock and any pre-funded warrant will be
determined between us and the underwriter at the time of pricing, and may be at a discount to the current market price. Therefore, the assumed public offering price used throughout this prospectus may
not be indicative of the final offering price. There is no established public trading market for the pre-funded warrants and the representative warrants, and we do not expect a market to develop. In
addition, we do not intend to apply for a listing of the pre-funded warrants and the representative warrants on any national securities exchange or other nationally recognized trading system.
Investing in shares of our common stock and pre-funded warrants involves a high degree of risk. You should carefully read
and consider the "Risk Factors" beginning on page 9 of this prospectus before investing.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal offense.
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Per Share
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Per Pre-Funded
Warrant
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Total(2)
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Public offering price
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$
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$
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Underwriting discounts and commissions(1)
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$
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$
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Proceeds, before expenses, to us
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$
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$
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(1)
See
"Underwriting" for a description of the compensation payable to the underwriters.
(2)
The
public offering price is $ per share of common stock and $ per pre-funded warrant to purchase a share of
common stock.
We
have granted the underwriters the right to purchase up to additional common shares at the public offering price, less underwriting discounts and commissions. The
underwriters can exercise this right at any time within 30 days from the date of this prospectus. If the underwriters exercise their option to purchase additional shares in full, we estimate
that our net proceeds from this offering will be approximately $ , excluding the proceeds, if any, from the exercise of the representative warrants.
We
anticipate that delivery of the common stock and any pre-funded warrants will be made on or about , 2019.
Sole Book-Running Manager
H.C. Wainwright & Co.
Manager
CIM Securities, LLC
The date of this prospectus is , 2019.
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We
and the underwriters have not authorized anyone to provide any information or to make any representations other than those contained in or incorporated by reference in this prospectus
or in any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. This prospectus is an offer to sell only the shares offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The information contained in or incorporated by reference in this prospectus is accurate only as of its date regardless of the time of
delivery of this prospectus or of any sale of common stock or pre-funded warrants.
Neither
we nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is
required, other than in the United States. Persons who come into possession of this prospectus and any free writing prospectus in jurisdictions outside the United States are required to inform
themselves about and to observe any restrictions as to this offering and the distribution of this prospectus and any free writing prospectus applicable to that jurisdiction.
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PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in this
prospectus and in the documents incorporated by reference. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in our
securities. For a more complete understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information contained in or incorporated by reference
in this prospectus, including the information contained under the heading "Risk Factors" beginning on page 9 of this prospectus, and the information included in any free writing prospectus that
we have authorized for use in connection with this offering.
Throughout this prospectus, the terms "we," "us," "our," and "our company" refer to Vaxart, Inc.
Overview
We are a clinical-stage biotechnology company focused on the development of oral recombinant vaccines based on our proprietary oral vaccine
platform. Our oral vaccines are designed to generate broad and durable immune responses that protect against a wide range of infectious diseases and may be useful for the treatment of chronic viral
infections and cancer. Our vaccines are administered using a convenient room temperature-stable tablet, rather than by injection.
We
are developing prophylactic vaccine candidates that target a range of infectious diseases. These include norovirus, a widespread cause of acute gastro-intestinal enteritis, for which
two Phase 1 human studies have been completed; seasonal influenza, for which our vaccine protected patients in a recent Phase 2 challenge study; and respiratory syncytial virus, or RSV,
a common cause of respiratory tract infections. In addition, we are developing our first therapeutic immune-oncology vaccine targeting cervical cancer and dysplasia caused by human papillomavirus, or
HPV.
Vaccines
have been essential in eradicating or significantly reducing multiple devastating infectious diseases, including polio, smallpox, mumps, measles, diphtheria, hepatitis B,
influenza, human papillomavirus and several others. According a recent MarketsandMarkets research report "Vaccines MarketGlobal Forecast to 2023", the global market for vaccines is
expected to reach $50.42 billion by 2023 from $36.45 billion in 2018, at a compound annual growth rate of 6.7%.
We
believe our oral tablet vaccine candidates offer several important advantages:
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First, they are designed to generate broad and durable immune responses, including systemic, mucosal and T cell responses, which may enhance
protection against certain infectious diseases, such as influenza, norovirus and RSV, and may have potential clinical benefit for certain cancers and chronic viral infections, such as those caused by
HPV.
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Second, our tablet vaccine candidates are designed to provide a more efficient and convenient method of administration, enhance patient
acceptance and reduce distribution bottlenecks, which we believe will improve the effectiveness of vaccination campaigns. For example, according to the U.S. Centers for Disease Control and Prevention,
or CDC, in the 2017/2018 seasonal influenza season, only approximately 42% of the U.S. population was vaccinated against influenza, with particularly low vaccination rates among adults between ages 18
and 49.
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Finally, we believe that utilizing our recombinant methods and production process will allow us to manufacture vaccines at scale more
efficiently and within shorter time frames than conventional vaccines manufactured using traditional methods.
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Our Product Pipeline
The following table outlines the status of our oral vaccine development programs and our two marketed products:
We
are developing the following tablet vaccine candidates, which are all based on our proprietary platform:
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Norovirus Vaccine.
We are
developing an oral tablet vaccine for norovirus, a leading cause of acute gastroenteritis in the United States and Europe. Because norovirus infects the small intestine, we believe that our vaccine,
which is designed to produce mucosal antibodies locally in the intestine in addition to systemic antibodies in the blood, will better protect against norovirus infection than an injectable vaccine.
Norovirus
is the leading cause of vomiting and diarrhea from acute gastroenteritis among people of all ages in the United States. Each year, on average, norovirus causes 19 to 21 million cases
of acute gastroenteritis and contributes to 56,000 to 71,000 hospitalizations and 570 to 800 deaths, mostly among young children and older adults. Typical symptoms include dehydration, vomiting,
diarrhea with abdominal cramps, and nausea. In a study conducted by Pittsburg School of Medicine in 2012, the total economic burden of norovirus in the United States was estimated at
$5.5 billion. In a more recent study by CDC and Johns Hopkins University, the global economic impact of norovirus disease was estimated at $60 billion, $34 billion of which
occurred in high income countries including the United States, Europe and Japan. Virtually all norovirus disease is caused by norovirus GI and GII genotypes, and we are developing a bivalent vaccine
designed to protect against both.
Clinical Trial Update
. We have completed two Phase 1 clinical trials with our monovalent oral tablet
vaccine for the GI.1 norovirus strain. The vaccine was well-tolerated and generated broad systemic and mucosal immune responses. In the clinical Phase 1b dose optimization study in healthy
adults in which we evaluated four different dosing regimens, all vaccine recipients (100%) in the high dose group
responded as measured by a significant increase in norovirus-specific B cells of both IgA and IgG subtypes. In the same group, there was at least a two-fold increase of norovirus-specific antibody
titers in serum in more than 90% of recipients.
We
are preparing for two norovirus clinical trials, a bivalent Phase 1 study designed to assess safety and immunogenicity of our norovirus GI.1 and GII.4 vaccines administered concurrently, and
a monovalent Phase 2 challenge study designed to assess the protective efficacy of our norovirus GI.1 vaccine against live norovirus GI.1 challenge in humans. The Phase 1 bivalent study
and the Phase 2 challenge study will both be conducted under an open IND. Clinical
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protocols
for both studies have been submitted to the FDA. In preparation for the Phase 2 challenge study, we have conducted a virus titration study to help determine the appropriate quantity
of the norovirus GI.1 virus to be used to challenge patients in the study.
The
bivalent study is conducted using both the norovirus GI.1 and GII.4 vaccines. The challenge study is conducted using only the norovirus GI.1 vaccine. In November 2018, the norovirus
GI.1 vaccine tablets that we manufactured in 2018 failed release testing, causing both studies that were scheduled to begin before the end of 2018 to be delayed. Since then, we have
manufactured two new lots of bulk GI.1 vaccine that are scheduled to be processed and tableted in the coming weeks. If processing and tableting is successful, and the vaccine passes all required
release testing, the norovirus GI.1 vaccine tablets are expected to become available for the currently planned clinical trials during the second quarter of 2019. The norovirus GII.4 vaccine tablets we
manufactured in 2018 have passed all required release testing and are available for use in our clinical trials, subject to final review of the Certificate of Analysis by the FDA.
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Seasonal Influenza
Vaccine.
Influenza is a major cause of morbidity and mortality in the U.S. and worldwide and, according to the CDC, only 42% of eligible U.S.
citizens were vaccinated in 2017/2018, with particularly low vaccination rates among adults between ages 18 and 49. We believe our oral tablet vaccine has the potential to improve the protective
efficacy of currently available influenza vaccines and increase flu vaccination rates.
Influenza
is one of the most common global infectious diseases, causing mild to life-threatening illness and even death. It is estimated that at least 350 million cases of seasonal influenza
occur annually worldwide, of which three to five million cases are considered severe, causing 290,000 to 650,000 deaths per year globally. During the most recent flu season 2017 - 2018,
there were 79,400 flu related deaths in the U.S. alone, according to the CDC. Very young children and the elderly are at the greatest risk. In the United States, between 5% and 20% of the population
contracts influenza, 226,000 people are hospitalized with complications of influenza, and between 3,000 and 49,000 people die from influenza and its complications each year, with up to 90% of the
influenza-related deaths occurring in adults older than 65. The total economic burden of seasonal influenza has been estimated to be $87.1 billion, including medical costs which average
$10.4 billion annually, while lost earnings due to illness and loss of life amount to $16.3 billion annually.
We
believe our tablet vaccine candidate has the potential to address many of the limitations of current injectable egg-based influenza vaccines, because: our tablet vaccine candidates are designed to
create broad and durable immune responses, which may provide more effective immunity and protect against additional strain variants; our vaccine is delivered as a room temperature-stable tablet, which
should provide a more convenient method of administration to enhance patient acceptance, and should simplify distribution and administration; and, by using recombinant methods, we believe our tablet
vaccine may be manufactured more rapidly than vaccines manufactured using egg-based methods and should eliminate the risk of allergic reactions to egg protein.
Clinical Trial Update
. In September 2018, we completed a $15.7 million contract with the U.S.
Government through the Office of Biomedical Advanced Research and Development Authority, or BARDA, under which a Phase 2 challenge study of our H1N1 flu vaccine candidate was conducted.
Previously, we had announced that, in healthy volunteers immunized and then experimentally infected with H1 influenza, our H1 influenza oral tablet vaccine reduced clinical disease by 39% relative to
placebo, a result that was superior to that of Fluzone, the market-leading injectable quadrivalent influenza vaccine, which reduced clinical disease by only 27%. Our tablet vaccine also showed a
favorable safety profile, indistinguishable from placebo. On October 4, 2018, we presented data from the study demonstrating that our vaccine elicited a
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significant
expansion of mucosal homing receptor plasmablasts to approximately 60% of all activated B cells, while Fluzone only maintained baseline levels of 20%. We believe plasmablasts are a key
indicator of a protective mucosal immune response and a unique feature of our vaccines. This data also provided evidence that our vaccines protect through mucosal immunity, the first line of defense
against mucosal infections such as flu, norovirus, RSV and others, a potential key advantage over injectable vaccines for these indications.
At
this time, we aim to finance development and commercialization of our seasonal quadrivalent influenza oral tablet vaccine through third-party collaboration and licensing arrangements, and/or
non-dilutive funding. In the future, we may also consider equity offerings and/or debt financings to fund the program.
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HPV Therapeutic Vaccine.
Our
first therapeutic oral vaccine candidate targets HPV-16 and HPV-18, the two strains responsible for 70% of cervical cancers and precancerous cervical dysplasia.
Cervical
cancer is the fourth most common cancer in women worldwide and in the United States with about 13,000 new cases diagnosed annually in the United States according to the National Cervical
Cancer Coalition.
We
have tested our HPV-16 vaccine candidate in two different HPV-16 solid tumor models in mice. The vaccine elicited T cell responses and promoted migration of the activated T cells into the tumors,
leading to tumor cell killing. Mice that received our HPV-16 vaccine showed a significant reduction in volume of their established tumors.
In
October 2018, we filed a pre-IND meeting request for our HPV therapeutic vaccines, VXA-HPV16.1 and VXA-HPV18.1, with the FDA, and we subsequently submitted a pre-IND briefing package. We received
feedback from the FDA in January 2019 providing guidance for the IND we plan to submit.
Based on this feedback, we expect to be able to file an IND for this product candidate in the course of 2019.
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RSV Vaccine.
RSV is a major
respiratory pathogen with a significant burden of disease in the very young and in the elderly.
Based
on the positive results of our cotton rat study, we believe our proprietary oral vaccine platform is the optimal vaccine delivery system for RSV, offering significant advantages over injectable
vaccines. We aim to develop a tablet RSV vaccine by licensing one or more RSV protein antigens that have demonstrated protection against RSV infection in clinical studies, or by partnering with a
third party with RSV antigens that can be delivered with our platform.
Additional Objectives
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Develop Other Tablet Vaccine Candidates Based On Our Proprietary
Platform.
Our technology platform employs a modular approach using the Ad5 vector-adjuvant construct with disease-specific antigens and can be
used to create new tablet vaccine candidates for a wide range of infectious diseases. We may consider exploring additional infectious diseases including RSV, Chikungunya, Hepatitis B and Herpes
Simplex Virus 2, or HSV-2. In addition, we intend to leverage our vaccine formulation expertise to develop oral formulations suitable for pediatric populations.
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Further Strengthen Our Intellectual Property
Portfolio.
We intend to continue to strengthen our patent portfolio by filing and prosecuting current and future patent applications in the
United States and international jurisdictions. In addition, we have established in-house formulation and tableting capabilities which we believe will allow us to further improve and optimize our
proprietary techniques and know-how.
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Maximize the Commercial Value of Our Tablet Vaccine
Candidates.
We believe that we own worldwide rights for the research, development, manufacturing, marketing and commercialization of our tablet
vaccine candidates. As we further develop our product candidates, we may seek partners to maximize the commercial opportunity of such tablet vaccine candidates.
Anti-Virals
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Through our merger with Aviragen Therapeutics, Inc. we acquired two royalty earning products, Relenza and Inavir, and three
Phase 2 clinical stage antiviral compounds.
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Relenza and Inavir are antivirals for the treatment of influenza that are marketed by GSK and Daiichi Sankyo, respectively. We earn royalties
on the net sales of Relenza and Inavir in Japan. Sales of Relenza and Inavir vary significantly from one year to the next, depending on the intensity of the flu season and competition from other
antivirals such as Tamiflu. Importantly, on February 23, 2018, Xofluza, a new drug to treat influenza developed by Shionogi, was approved in Japan. The drug may gain significant market share,
substantially reducing sales of Inavir.
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The three Phase 2 antiviral compounds obtained through the merger with Aviragen are: (i) BTA074, or teslexivir, an antiviral
treatment for condyloma caused by human papillomavirus types 6 & 11; (ii) vapendavir, a capsid inhibitor for the prevention or treatment of rhinovirus upper respiratory
infections; and (iii) BTA585, or enzaplatovir, a fusion protein inhibitor for the treatment of RSV infections. We have discontinued all three programs.
Corporate Background
Vaxart Biosciences, Inc. was originally incorporated in California in March 2004 under the name West Coast Biologicals, Inc. The
Company changed its name to Vaxart, Inc. in July 2007, and reincorporated in the state of Delaware.
On
February 13, 2018, we completed a business combination with Aviragen Therapeutics, Inc., or Aviragen, a publicly-traded company. Under the terms of the agreement and
plan of merger and reorganization dated October 27, 2017, Vaxart, Inc. survived as a wholly owned subsidiary of Aviragen and changed its name to Vaxart Biosciences, Inc. and
Aviragen changed its name to Vaxart, Inc. Our common stock subsequently began trading on the Nasdaq Capital Market under the symbol "VXRT."
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THE OFFERING
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Common stock offered
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shares
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Pre-funded warrants offered
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We are also offering to certain purchasers whose purchase of shares of common stock in this offering would otherwise result
in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately following the closing of this offering, the
opportunity to purchase, if such purchasers so choose, pre-funded warrants, in lieu of shares of common stock that would otherwise result in any such purchaser's beneficial ownership exceeding 4.99% (or, at the election of the purchaser, 9.99%) of
our outstanding common stock. Each pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded warrant will equal the price at which the share of common stock is being sold to the public in this
offering, minus $ , and the exercise price of each pre-funded warrant will be $0.10 per share. The pre-funded warrants will be exercisable immediately and may be exercised at any time until all of the
pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any pre-funded warrants sold in this offering. For each pre-funded warrant we sell, the number of shares of common stock we
are offering will be decreased on a one-for-one basis.
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Option to purchase additional
shares
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The underwriter has a 30-day option to purchase up to an
additional shares of our common stock from us at the public offering price less underwriting discounts and commissions.
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Common stock to be outstanding after this offering
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shares
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Use of proceeds
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We estimate that our net proceeds from this offering will be approximately
$ million, excluding the proceeds, if any, from the exercise of the pre-funded warrants and representative warrants, and after deducting underwriting discounts and commissions and estimated
offering expenses payable by us, based on the sale of shares of our common stock in this offering at an
assumed public offering price of $ (the last reported sale price of our common stock on the Nasdaq Capital Market
on , 2019) and $ per pre-funded warrant. If the underwriters exercise their option to purchase additional
shares in full, we estimate that our net proceeds from this offering will be approximately $ million, excluding the proceeds, if any, from the exercise of the pre-funded warrants and representative
warrants and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
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We currently intend to use the net proceeds from this offering to support the clinical and preclinical development of our product candidates,
to conduct clinical trials including a Phase I study with our bivalent norovirus vaccines and a Phase II challenge study with our GI.1 monovalent norovirus vaccine, to support the manufacturing of vaccines for these clinical trials, and to
advance our therapeutic HPV vaccine candidate and for general corporate and working capital purposes. See the section titled "Use of Proceeds."
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Risk factors
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See "Risk Factors" beginning on page 9 of this prospectus, as well as other information included in this prospectus, for a
discussion of factors you should read and consider carefully before investing in our securities.
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Nasdaq Capital Market symbol
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"VXRT." We do not intend to list the pre-funded warrants on any securities exchange or nationally recognized trading
system.
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The
number of shares of common stock to be outstanding after this offering is based on 7,141,189 shares of common stock outstanding as of December 31, 2018, and
excludes:
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865,163 shares issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $8.13 per share;
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10,914 shares issuable upon the exercise of an outstanding warrant with an exercise price of $22.99 per share; and
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223,377 shares reserved for future issuance under our 2016 Equity Incentive Plan.
Unless
otherwise stated, information in this prospectus assumes:
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no exercise of outstanding options, pre-funded warrants or the representative warrants; and
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no exercise by the underwriters of their option to purchase additional shares.
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SUMMARY SELECTED CONSOLIDATED FINANCIAL DATA
You should read the summary selected consolidated financial data below in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the consolidated financial statements, related notes and other financial information incorporated by reference in this prospectus. The summary selected
consolidated financial data in this section are not intended to replace the consolidated financial statements and are qualified in their entirety by the selected consolidated financial data included
in this prospectus and the consolidated financial statements and related notes incorporated by reference in this prospectus.
The
following consolidated statements of operations and comprehensive loss data for the years ended December 31, 2017 and 2018 and the consolidated balance sheet data as of
December 31, 2017 and 2018 have been derived from our audited consolidated financial statements incorporated by reference in this prospectus. Our historical results are not necessarily
indicative of the results that may be expected in the future.
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Year Ended
December 31,
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2017
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2018
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(in thousands)
|
|
Consolidated Statements of Operations and Comprehensive Loss Data:
|
|
|
|
|
|
|
|
Revenue from government contract
|
|
$
|
5,839
|
|
$
|
1,344
|
|
Royalty revenue
|
|
|
|
|
|
1,340
|
|
Non-cash royalty revenue related to the sale of future royalties
|
|
|
|
|
|
1,475
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
5,839
|
|
|
4,159
|
|
Operating expenses:
|
|
|
|
|
|
|
|
Research and development
|
|
|
12,355
|
|
|
17,275
|
|
General and administrative
|
|
|
3,499
|
|
|
6,681
|
|
Impairment of intangible assets
|
|
|
|
|
|
1,600
|
|
Costs of exit from leased premise
|
|
|
|
|
|
359
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
15,854
|
|
|
25,915
|
|
|
|
|
|
|
|
|
|
Operating loss
|
|
|
(10,015
|
)
|
|
(21,756
|
)
|
Total other income and (expenses)
|
|
|
433
|
|
|
3,858
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
|
|
|
|
109
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
(9,582
|
)
|
|
(18,007
|
)
|
Series B and C preferred dividend
|
|
|
(2,878
|
)
|
|
(339
|
)
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders
|
|
$
|
(12,460
|
)
|
$
|
(18,346
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per sharebasic and diluted
|
|
$
|
(91.65
|
)
|
$
|
(2.90
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used to compute net loss per sharebasic and diluted
|
|
|
135,953
|
|
|
6,316,065
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
|
2017
|
|
2018
|
|
|
|
(in thousands)
|
|
Consolidated Balance Sheet Data:
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
1,571
|
|
$
|
11,506
|
|
Total assets
|
|
|
4,523
|
|
|
35,227
|
|
Long-term debt
|
|
|
43,245
|
|
|
23,832
|
|
Total liabilities
|
|
|
43,245
|
|
|
23,989
|
|
Accumulated deficit
|
|
|
(79,982
|
)
|
|
(97,989
|
)
|
Total stockholders' (deficit) equity
|
|
|
(38,722
|
)
|
|
11,238
|
|
8
Table of Contents
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described below
as well as the other information in this prospectus and incorporated by reference in this prospectus before making a decision to invest in shares of our common stock or pre-funded warrants, including
the risks described under "Risk Factors" in our Annual Report on Form 10-K for the year ended December 31, 2018. Our business faces significant risks and the risks described below may
not be the only risks we face. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations. If any of these risks
occur, our business, results of operations or financial condition and prospects could be harmed. In that event, the market price of our common stock and the value of the pre-funded warrants could
decline, and you could lose all or part of your investment.
Risks Related to this Offering
Management will have broad discretion as to the use of the net proceeds from this offering, and we may not
use these proceeds effectively.
We have not designated any portion of the net proceeds from this offering to be used for any particular purposes. Our management will have broad
discretion in the application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our results of operations or enhance the value of our common stock.
Accordingly, you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess
whether the proceeds are being used appropriately. Our failure to apply these funds effectively could have a material adverse effect on our business, delay the development of our products and cause
the price of our common stock to decline.
You will experience immediate and substantial dilution.
The price at which a share of common stock is sold in this offering will exceed the net tangible book value (deficit) per share of our common
stock outstanding prior to this offering. Assuming that shares of our common stock and pre-funded warrants
are sold in this offering, based on an assumed public
offering price of $ per share, the last reported sale price of our common stock on the Nasdaq Capital Market
on , 2019, and $ per pre-funded warrant,
excluding the proceeds, if any, from the exercise of the representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us, you will
experience immediate dilution, representing the difference between the price you pay and our as adjusted net tangible book value (deficit) per share as of December 31, 2018, after giving effect
to this offering. The exercise of outstanding stock options or warrants, including pre-funded warrants and representative warrants, may result in further dilution of your investment. See the section
titled "Dilution" below for a more detailed illustration of the dilution you would incur if you participate in this offering.
Purchasers in this offering may experience additional dilution of their investment in the future.
We may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for
our current or future operating plans. If additional capital is raised through the sale of equity or convertible debt securities, or perceptions that those sales could occur, the issuance of these
securities could result in further dilution to investors purchasing our common stock or pre-funded warrants in this offering or result in downward pressure on the price of our common stock, and our
ability to raise capital in the future. In order to raise additional capital, such securities may be at prices that are not the same as the price per share in this offering. We cannot assure you that
we will be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price per share paid by investors in this offering, and
9
Table of Contents
investors
purchasing shares or other securities in the future could have rights superior to existing stockholders, including investors who purchase securities in this offering. The price per share at
which we sell additional shares of our common stock or securities convertible into common stock in future transactions may be higher or lower than the price per share in this offering.
There is no public market for the pre-funded warrants being offered in this offering.
There is no established public trading market for the pre-funded warrants being offered in this offering, and we do not expect a market to
develop. In addition, we do not intend to apply to list the pre-funded warrants on any securities exchange or nationally recognized trading system, including the Nasdaq Capital Market. Without an
active market, the liquidity of the pre-funded warrants will be limited.
Holders of our pre-funded warrants will have no rights as a common stockholder until they acquire our common
stock.
Until you acquire shares of our common stock upon exercise of your pre-funded warrants, you will have no rights with respect to shares of our
common stock issuable upon exercise of your pre-funded warrants. Upon exercise of your pre-funded warrants, you will be entitled to exercise the rights of a common stockholder only as to matters for
which the record date occurs after the exercise date.
10
Table of Contents
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the Securities and Exchange Commission, or the SEC, that are incorporated 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, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors which may
cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
Forward-looking statements may include, but are not limited to, statements about:
-
-
our ability to fund our working capital requirements;
-
-
the amount and timing of royalties received on sales of Relenza and Inavir;
-
-
the timing and costs of our planned clinical trials for our product candidates, both tablet vaccines and small-molecule antiviral drugs;
-
-
our ability to obtain and maintain regulatory approval of our product candidates;
-
-
our ability to establish and scale commercial manufacturing capabilities;
-
-
the rate and degree of market acceptance of our products, if any, that are approved;
-
-
our estimates of our expenses, ongoing losses, future revenue, capital requirements and our needs for or ability to obtain additional
financing;
-
-
our ability to obtain and maintain intellectual property protection for our product candidates;
-
-
our ability to identify and develop new product candidates and the number and characteristics of product candidates that we pursue;
-
-
our ability to retain and recruit key personnel;
-
-
our planned use of the proceeds from this offering;
-
-
our financial performance;
-
-
our ability to become profitable and generate consistent cash flows to remain profitable;
-
-
developments and projections relating to our competitors or our industry; and
-
-
our expected use of the net proceeds from this offering.
In
some cases, you can identify forward-looking statements by terms such as "anticipates," "believes," "could," "estimates," "intends," "may," "plans," "potential," "will," "would," or
the negative of these terms or other similar expressions. These statements reflect our current views with respect to future events and are based on assumptions and are subject to risks and
uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail many of these risks in the section titled "Risk
Factors", in any free writing prospectuses
we may authorize for use in connection with this offering, and in our most recent Annual Report on Form 10-K, as well as any amendments thereto reflected in subsequent filings with the SEC,
which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document
containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
In
addition, statements that "we believe" and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as
of the date of this
11
Table of Contents
prospectus,
and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate
that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly
rely upon these statements.
You
should read this prospectus, together with the documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we may authorize for use
in connection with this offering completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements
in the foregoing documents by these cautionary statements.
12
Table of Contents
MARKET AND INDUSTRY DATA
This prospectus and the documents incorporated by reference in this prospectus contain market data and industry statistics and forecasts that
are based on independent industry publications and other publicly available information. Although we believe that these sources are
reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the
market and industry data presented or incorporated by reference in this prospectus, these estimates involve risks and uncertainties and are subject to change based on various factors, including those
discussed in the section titled "Risk Factors" and any related free writing prospectus. Accordingly, investors should not place undue reliance on this information.
13
Table of Contents
USE OF PROCEEDS
We estimate that our net proceeds from this offering will be approximately $ million, excluding the proceeds,
if any, from
the exercise of the pre-funded warrants and representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us, based on the sale of
shares of our common stock in this offering at an assumed public offering price of
$ (the last reported sale price of our common stock on the Nasdaq Capital Market on
, 2019) and $ per pre-funded warrant. If the underwriters exercise their option to
purchase additional shares in full, we estimate that our net proceeds from this
offering will be approximately $ million, excluding the proceeds, if any, from the exercise of the pre-funded warrants and representative warrants and after deducting
underwriting discounts and commissions and estimated offering expenses payable by us.
Each
$0.50 increase (decrease) in the assumed public offering price of $ per share of our common stock (the last reported sale price of our common stock on the Nasdaq
Capital Market on , 2019) would increase (decrease) the expected net cash proceeds of the offering to us by approximately
$ million. Each increase (decrease) of
1.0 million shares in the number of shares of common stock offered by us would increase (decrease) the net proceeds to us from this offering by approximately $ million,
assuming that the assumed public offering price of our common stock remains the same, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
We
currently intend to use the net proceeds from the sale of the shares of our common stock and pre-funded warrants offered by us, if any, to support the clinical and preclinical
development of our product candidates, to conduct clinical trials, including a Phase I study with our bivalent norovirus vaccines and a Phase II challenge study with our GI.1 monovalent
norovirus vaccine, to support the manufacturing of vaccines for these clinical trials and to advance our therapeutic HPV vaccine candidate, and for general corporate and working capital purposes.
Accordingly, we retain broad discretion to use of these proceeds.
Pending
the use of the net proceeds from this offering, we intend to invest the net proceeds in investment-grade, interest-bearing instruments.
14
Table of Contents
DIVIDEND POLICY
We have never paid or declared any cash dividends on our common stock. We do not anticipate paying any cash dividends on our common stock in the
foreseeable future, and we intend to retain all available funds and any future earnings to fund the development and expansion of our business. In addition, covenants in the agreement governing our
senior secured credit facility do not allow for the payment of any cash dividends. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a
number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors
deems relevant.
15
Table of Contents
CAPITALIZATION
The following table shows our cash and cash equivalents and our capitalization as of December 31, 2018
on:
-
-
an actual basis; and
-
-
an as adjusted basis, giving effect to the sale by us of shares of common stock
and pre-funded
warrants to purchase shares of common stock in this offering at the assumed public offering price of $ per share (the last reported sale price of our common stock on the Nasdaq
Capital
Market on , 2019) and $ per pre-funded warrant, after deducting underwriting
discounts and commissions and estimated offering expenses payable by us.
|
|
|
|
|
|
|
|
|
|
As of December 31, 2018
|
|
|
|
Actual
|
|
As
Adjusted(1)
|
|
|
|
(in thousands, except
share and per share data)
|
|
Cash and cash equivalents
|
|
$
|
11,506
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
$
|
23,832
|
|
$
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
Preferred stock, $0.10 par value, 5,000,000 shares authorized, no shares issued and outstanding, actual and as adjusted
|
|
|
|
|
|
|
|
Common stock, $0.10 par value, 200,000,000 shares authorized, 7,141,189 shares issued and outstanding,
actual; shares issued and outstanding, as adjusted
|
|
|
714
|
|
|
|
|
Additional paid-in capital
|
|
|
108,513
|
|
|
|
|
Accumulated other comprehensive income
|
|
|
|
|
|
|
|
Accumulated deficit
|
|
|
(97,989
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders' equity
|
|
|
11,238
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
35,070
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Each
$0.50 increase (decrease) in the assumed public offering price of $ per share, (the last reported sale price of our common stock on the Nasdaq
Capital Market on , 2019) would increase (decrease) each of cash and cash equivalents, additional paid-in capital, total stockholders' equity and total
capitalization by
$ million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, excluding the proceeds, if any, from the
exercise of the pre-funded warrants and representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. Each increase (decrease) of
1.0 million shares in the number of shares of common stock offered by us would increase (decrease) each of cash, cash equivalents and restricted cash, additional paid-in capital, total
stockholders' equity and total capitalization by $ million, assuming that the assumed public offering price of common stock remains the same and excluding the proceeds, if
any,
from the exercise of the pre-funded warrants and representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. The as adjusted
information discussed above is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering determined at pricing.
16
Table of Contents
The
number of shares of common stock in the table above excludes:
-
-
865,163 shares issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $8.13 per share;
-
-
10,914 shares issuable upon the exercise of an outstanding warrant with an exercise price of $22.99 per share; and
-
-
223,377 shares reserved for future issuance under our 2016 Equity Incentive Plan.
17
Table of Contents
DILUTION
If you purchase securities in this offering, your interest will be diluted to the extent of the difference between the public offering price per
share and the as adjusted net tangible book value per share of our common stock after this offering, assuming no value is attributed to the pre-funded warrants, and such pre-funded warrants are
accounted for and classified as equity.
As
of December 31, 2018, our net tangible book value (deficit) was $(8.2) million, or $(1.14) per share. Net tangible book value (deficit) is total tangible assets less total
liabilities divided by the total number of outstanding shares of common stock.
After
giving effect to the sale of shares of common stock and pre-funded warrants in this offering at an assumed
public offering price of $ per share, (the
last reported sale price of our common stock as reported on the Nasdaq Capital Market on , 2019) and
$ per pre-funded warrant, and the exercise of the pre-funded
warrants, but excluding the proceeds, if any, from the exercise of the representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by
us, our as adjusted net tangible book value (deficit) as of December 31, 2018, would have been $ million, or
$ per share. This represents an immediate
increase in as adjusted net tangible book value (deficit) of $ per share to our existing stockholders and immediate dilution in net tangible book value (deficit) of
$ per
share to investors participating in this offering. The following table illustrates this dilution per share to investors participating in this offering:
|
|
|
|
|
|
|
|
Assumed public offering price per share
|
|
|
|
|
$
|
|
|
Net tangible book value (deficit) per share as of December 31, 2018
|
|
$
|
(1.14
|
)
|
|
|
|
Increase in as adjusted net tangible book value (deficit) per share attributable to new investors in this offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As adjusted net tangible book value (deficit) per share after giving effect to this offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution in net tangible book value per share to new investors in this offering
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Each
$0.50 increase (decrease) in the assumed public offering price of $ per share would increase (decrease) our as adjusted net tangible book value (deficit) after this
offering by $ million, or $ per share, and the dilution per share to new investors by
$ per share, assuming that the number of shares of common
stock offered by us, as set forth above, remains the same, excluding the proceeds, if any, from the exercise of the pre-funded warrants and representative warrants issued in this offering, and after
deducting underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of shares of common stock we are offering from the assumed
number of shares of common stock set forth above. An increase (decrease) of 1.0 million shares of common stock in the number of shares of common stock offered by us from the assumed number of
shares of common stock set forth above would increase (decrease) our as adjusted net tangible book value (deficit) after this offering by $ million, or
$ per
share, and the dilution per share to new investors by $ per share, assuming that the assumed public offering price of the common stock remains the same, excluding the proceeds, if
any,
from the exercise of the pre-funded warrants and the representative warrants, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. The information
discussed above is illustrative only and will adjust based on the actual public offering price of the common stock, the actual number of shares that we offer in this offering, and other terms of this
offering determined at pricing.
18
Table of Contents
The
number of shares of common stock to be outstanding after this offering is based on 7,141,189 shares of common stock outstanding as of December 31, 2018, and
excludes:
-
-
865,163 shares issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $8.13 per share;
-
-
10,914 shares issuable upon the exercise of an outstanding warrant with an exercise price of $22.99 per share; and
-
-
223,377 shares reserved for future issuance under our 2016 Equity Incentive Plan.
To
the extent that any outstanding options or pre-funded warrants are exercised, there will be further dilution to new investors.
19
Table of Contents
PRINCIPAL STOCKHOLDERS
The following table sets forth, as of December 31, 2018, information regarding beneficial ownership of our common stock
by:
-
-
each stockholder known by us to beneficially own more than 5% of our outstanding common stock;
-
-
each of our current named executive officers as set forth in our Annual Report on Form 10-K for the year ended December 31, 2018;
-
-
each of our directors; and
-
-
all of our current executive officers and directors as a group.
Beneficial
ownership is determined according to the rules of the SEC and generally means that a person has beneficial ownership of a security if he, she or it possesses sole or shared
voting or investment power of that security, including options that are currently exercisable or exercisable within 60 days of December 31, 2018. Except as indicated by the footnotes
below, we believe, based on the information furnished to us, that the persons named in the table below have sole voting and investment power with respect to all shares of common stock shown that they
beneficially own.
Our
calculation of the percentage of beneficial ownership prior to this offering is based on 7,141,189 shares of our common stock outstanding as of December 31, 2018. We have
based our calculation of the percentage of beneficial ownership after this offering on shares of our common stock to be outstanding immediately after the closing of this offering,
assuming no exercise of the pre-funded warrants or the representative warrants issued in this offering and assuming no exercise by the underwriters of their option to purchase additional shares.
Common
stock subject to stock options currently exercisable or exercisable within 60 days of December 31, 2018, are deemed to be outstanding for computing the percentage
ownership of the person holding these options and the percentage ownership of any group of which the holder is a member but are not deemed outstanding for computing the percentage of any other person.
Unless
otherwise noted below, the address for each of the stockholders in the table below is c/o Vaxart, Inc., 290 Utah Ave, Suite 200, South San Francisco,
California 94080.
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficially Ownership
|
|
Name of Beneficial Owner
|
|
Shares
|
|
Before
Offering
|
|
After
Offering
|
|
Greater than 5% Stockholders:
|
|
|
|
|
|
|
|
|
|
|
Entities affiliated with Care Capital(1)
|
|
|
2,799,424
|
|
|
39.2
|
%
|
|
|
%
|
Executive Officers and Directors:
|
|
|
|
|
|
|
|
|
|
|
Geoffrey F. Cox, Ph.D.(2)
|
|
|
8,567
|
|
|
*
|
|
|
|
|
Michael J. Finney, Ph.D.
|
|
|
270,754
|
|
|
3.8
|
|
|
|
|
John M. Harland(3)
|
|
|
23,636
|
|
|
*
|
|
|
|
|
Wouter W. Latour, M.D.(4)
|
|
|
78,051
|
|
|
1.1
|
|
|
|
|
Richard J. Markham(5)
|
|
|
|
|
|
*
|
|
|
|
|
John P. Richard(6)
|
|
|
9,543
|
|
|
*
|
|
|
|
|
Sean N. Tucker, Ph.D.(7)
|
|
|
130,710
|
|
|
1.8
|
|
|
|
|
Anne M. VanLent(8)
|
|
|
12,724
|
|
|
*
|
|
|
|
|
All executive officers and directors as a group (8 persons)
|
|
|
533,985
|
|
|
7.3
|
|
|
|
|
-
*
-
Represents
beneficial ownership of less than one percent.
20
Table of Contents
-
(1)
-
Includes
(a) 2,753,441 shares held by Care Capital Investments III, LP ("Investments III") and (b) 45,983 shares held by Care
Capital Offshore Investments III, LP ("Offshore III"). Care Capital III LLC is the general partner of Investments III LP and Offshore III
(collectively, "Care Capital") and as a result, Care Capital III LLC has the ultimate power to vote or direct the vote and to dispose or direct the disposition of such shares. The
address for each of these entities is P.O. Box 276, Avon by the Sea, New Jersey 07717.
-
(2)
-
Includes
(a) 388 shares held by Dr. Cox's spouse, and (b) 8,179 shares issuable pursuant to stock options exercisable within 60 days of
December 31, 2018.
-
(3)
-
Includes
(a) 761 shares held directly by Mr. Harland, and (b) 22,875 shares issuable pursuant to stock options exercisable within 60 days
of December 31, 2018.
-
(4)
-
Consists
of 78,051 shares issuable pursuant to stock options exercisable within 60 days of December 31, 2018.
-
(5)
-
Mr. Markham
ceased to serve as a managing member of Care Capital effective December 31, 2018, and does not beneficially own any shares.
-
(6)
-
Consists
of 9,543 shares issuable pursuant to stock options exercisable within 60 days of December 31, 2018.
-
(7)
-
Includes
(a) 47,653 shares held directly by Dr. Tucker, (b) 25,388 shares held by Frances Chang and Sean Tucker, (c) 9,060 shares held by
Dr. Tucker's spouse, and (d) 48,609 shares issuable pursuant to stock options exercisable within 60 days of December 31, 2018.
-
(8)
-
Includes
(a) 3,181 shares held directly by Ms. VanLent, and (b) 9,543 shares issuable pursuant to stock options exercisable within
60 days of December 31, 2018.
21
Table of Contents
DESCRIPTION OF CAPITAL STOCK
The following summary description of our capital stock is based on the provisions of our amended and restated
certificate of incorporation and amended and restated bylaws and the applicable provisions of the Delaware General Corporation Law. This information is qualified entirely by reference to the
applicable provisions of our amended and restated certificate of incorporation, bylaws and the Delaware General Corporation Law. For information on how to obtain copies of our amended and restated
certificate of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus is a part, see the sections titled "Where You Can Find Additional Information" and
"Incorporation of Certain Information by Reference" in this prospectus.
General
Our authorized capital stock consists of (i) 200,000,000 shares of common stock, par value $0.10 per share and (ii) 5,000,000
shares of preferred stock, par value $0.10 per share. As of December 31, 2018, there were 7,141,189 shares of common stock issued and outstanding, and no shares of preferred stock outstanding.
The
following is a summary of the material provisions of the common stock and preferred stock provided for in our amended and restated certificate of incorporation and amended and
restated bylaws.
Common Stock
Voting
Our common stock is entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, except that
directors will be elected by a plurality of votes cast. Accordingly, the holders of a majority of the shares of common stock entitled to vote in any election of directors are able to elect all of the
directors standing for election, if they so choose.
Dividends
Subject to preferences that may be applicable to any then outstanding preferred stock, the holders of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. We have never paid cash dividends and have no present intention to pay cash dividends.
Liquidation
In the event of a liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets
legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any
outstanding shares of preferred stock.
Rights and Preferences
Holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions
applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any
series of our preferred stock that we may designate and issue in the future.
22
Table of Contents
Fully Paid and Nonassessable
All of our outstanding shares of common stock are fully paid and nonassessable.
Preferred Stock
Our board of directors has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of preferred stock in one
or more series, to establish from time to time the number of shares to be included in each such series, to fix the rights, preferences and privileges of the shares of each wholly unissued series and
any qualifications, limitations or restrictions thereon and to increase or decrease the number of shares of any such series, but not below the number of shares of such series then outstanding.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the
common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of
delaying, deferring or preventing a
change in our control that may otherwise benefit holders of our common stock and may adversely affect the market price of the common stock and the voting and other rights of the holders of common
stock. As of December 31, 2018, there were no shares of preferred stock outstanding and we have no current plans to issue any shares of preferred stock.
Anti-Takeover Effects of Provisions of Our Charter Documents and Delaware Law
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGCL, or Section 203. Section 203 generally prohibits a public Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder,
unless:
-
-
prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder;
-
-
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding upon consummation of the transaction,
excluding for purposes of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in
which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
-
-
on or subsequent to the consummation of the transaction, the business combination is approved by the board and authorized at an annual or
special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66
2
/
3
% of the outstanding voting stock which is not owned by
the interested stockholder.
-
-
Section 203 defines a business combination to include:
-
-
any merger or consolidation involving the corporation and the interested stockholder;
-
-
any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
-
-
subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any
class or series of the corporation beneficially owned by the interested stockholder;
23
Table of Contents
-
-
subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the
interested stockholder; and
-
-
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity
or person affiliated with or controlling or controlled by the entity or person.
Certificate of Incorporation and Bylaws
Provisions of our certificate of incorporation and bylaws may delay or discourage transactions involving an actual or potential
change-in-control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares or transactions that our stockholders might otherwise
deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock. Among other things, our certificate of incorporation and
bylaws:
-
-
permit our board of directors to issue up to 5,000,000 shares of preferred stock, with any rights, preferences and privileges as they may
designate (including the right to approve an acquisition or other change in control);
-
-
provide that the authorized number of directors may be changed only by resolution adopted by a majority of the board of directors;
-
-
provide that all vacancies, including newly created directorships, may, except as otherwise required by law or subject to the rights of holders
of preferred stock as designated from time to time, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;
-
-
require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders or by
action taken by written consent;
-
-
provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide notice in writing in a timely manner and also specify requirements as to the form and content of a stockholder's notice; and
-
-
provide that special meetings of our stockholders may be called only by the chairman of the board, the president or by our board of directors
pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies).
Nasdaq Capital Market Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol "VXRT."
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. The transfer agent and
registrar's address is 6201 15th Avenue, Brooklyn, New York 11219.
24
Table of Contents
DESCRIPTION OF SECURITIES WE ARE OFFERING
We are offering shares of our common stock and pre-funded warrants to purchase shares of our common stock. The
shares of common
stock and pre-funded warrants will be issued separately. We are also registering the shares of common stock issuable from time to time upon exercise of the pre-funded warrants offered hereby.
Common Stock
The material terms and provisions of our common stock and each other class of our securities which qualifies or limits our common stock are
described under the caption "Description of Capital Stock" in this prospectus.
Pre Funded Warrants
The following summary of certain terms and provisions of pre-funded warrants that are being offered hereby is not
complete and is subject to, and qualified in its entirety by, the provisions of the pre-funded warrant, the form of which is filed as an exhibit to the registration statement of which this prospectus
forms a part. Prospective investors should carefully review the terms and provisions of the form of pre-funded warrant for a complete description of the terms and conditions of the pre-funded
warrants.
Duration and Exercise Price.
Each pre-funded warrant offered hereby will have an initial exercise price per share equal to $0.10. The
pre-funded
warrants will be immediately exercisable and may be exercised at any time until the pre-funded warrants are exercised in full. The exercise price and number
of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock and
the exercise price.
Exercisability.
The pre-funded warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to us a
duly executed
exercise notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). Purchasers of
the pre-funded warrants in this offering may elect to deliver their exercise notice following the pricing of the offering and prior to the issuance of the pre-funded warrants at closing to have their
pre-funded warrants exercised immediately upon issuance and receive shares of common stock underlying the pre-funded warrants upon closing of this offering. A holder (together with its affiliates) may
not exercise any portion of the pre-funded warrant to the extent that the holder would own more than 4.99% of the outstanding common stock immediately after exercise, except that upon at least
61 days' prior notice from the holder to us, the holder may increase the amount of ownership of outstanding stock after exercising the holder's pre-funded warrants up to 9.99% of the number of
shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the pre-funded warrants. Purchasers
of pre-funded warrants in this offering may also elect prior to the issuance of the pre-funded warrants to have the initial exercise limitation set at 9.99% of our outstanding common stock. No
fractional shares of common stock will be issued in connection with the exercise of a pre-funded warrant. In lieu of fractional shares, we will either pay the holder an amount in cash equal to the
fractional amount multiplied by the exercise price or round up to the next whole share.
Cashless Exercise.
If, at the time a holder exercises its pre-funded warrants, a registration statement registering the issuance of the
shares of
common stock underlying the pre-funded warrants under the Securities Act is not then effective or available, then in lieu of making the cash payment otherwise contemplated to be made to us upon such
exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net
25
Table of Contents
number
of shares of common stock determined according to a formula set forth in the pre-funded warrants.
Transferability.
Subject to applicable laws, a pre-funded warrant may be transferred at the option of the
holder upon surrender of the pre-funded warrant to us together with the appropriate instruments of transfer.
Exchange Listing.
There is no trading market available for the pre-funded warrants on any securities exchange or nationally recognized
trading
system. We do not intend to list the pre-funded warrants on any securities exchange or nationally recognized trading system.
Right as a Stockholder.
Except as otherwise provided in the pre-funded warrants or by virtue of such holder's ownership of shares of our
common
stock, the holders of the pre-funded warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until they exercise their pre-funded warrants.
Fundamental Transaction.
In the event of a fundamental transaction, as described in the pre-funded warrants and generally including any
reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger
with or into another person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our
outstanding common stock, the holders of the pre-funded warrants will be entitled to receive upon exercise of the pre-funded warrants the kind and amount of securities, cash or other property that the
holders would have received had they exercised the pre-funded warrants immediately prior to such fundamental transaction.
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Table of Contents
UNDERWRITING
We have entered into an underwriting agreement with H.C. Wainwright & Co., LLC as the sole book-running manager of this
offering. Subject to the terms and conditions of the underwriting agreement, we have agreed to sell to the underwriters, and the underwriters have agreed
to purchase from us, shares of our common stock and pre-funded warrants. Our common stock is listed on the Nasdaq Capital Market under the symbol "VXRT".
Pursuant
to the terms and subject to the conditions contained in the underwriting agreement, we have agreed to sell to the underwriters named below, and the underwriters have agreed to
purchase from us, the respective number of shares of common stock and pre-funded warrants to purchase common stock set forth opposite their name below:
|
|
|
|
|
|
|
Underwriter
|
|
Number of
Shares of
Common Stock
|
|
Number of
Pre-Funded
Warrants
|
|
H.C. Wainwright & Co., LLC
|
|
|
|
|
|
|
CIM Securities, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The
underwriting agreement provides that the obligation of the underwriters to purchase the shares of common stock and/or pre-funded warrants offered by this prospectus is subject to
certain conditions. The underwriters are obligated to purchase all of the shares of common stock and/or pre-funded warrants to purchase shares of our common stock offered hereby if any of the
securities are purchased, other than those shares covered by the option to purchase additional shares described below.
Option to Purchase Additional Shares
We have granted the underwriters an option to purchase additional shares. This option, which is exercisable for up to 30 days after the
date of this prospectus, permits the underwriters to purchase up to shares of common stock at a price of $ per share, less underwriting discounts and
commissions.
Discounts, Commissions and Expenses
The underwriters propose to offer the shares of common stock and/or pre-funded warrants pursuant to the underwriting agreement to the public at
the public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $ per share or $ per
pre-funded warrant, based on the combined public offering price per share or pre-funded warrant set forth on the cover page of this prospectus. After this offering, the public offering price and
concession may be changed by the underwriters. No such change shall change the amount of proceeds to be received by us as set forth on the cover page of this prospectus.
In
connection with the sale of the common stock and/or pre-funded warrants to be purchased by the underwriters, the underwriters will be deemed to have received compensation in the form
of underwriting discounts and commissions. The underwriting discounts and commissions will be 7% of the gross proceeds of this offering, or $ per share of common stock or per pre-funded
warrant.
27
Table of Contents
The
following table shows underwriting discounts and commissions payable to the underwriters by us in connection with this offering:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per Share
|
|
Per
Pre-Funded
Warrant
|
|
Total
Shares
|
|
Total
Pre-Funded
Warrants
|
|
Total
Underwriters'
Option
Shares
|
|
Total
Shares and
Pre-Funded
Warrants
|
|
Total
Shares,
Pre-Funded
Warrants and
Underwriters'
Option
Shares
|
|
Public offering price
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Underwriting discounts and commissions payable by us
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
We
have also agreed to reimburse H.C. Wainwright & Co., LLC for reasonable out-of-pocket expenses, including legal fees and expenses, of up to $110,000. We estimate
the total expenses payable by us for this offering will be approximately $600,000, which amount excludes underwriting discounts and commissions.
Representative Warrants
In addition, we have agreed to issue to H.C. Wainwright & Co., LLC warrants to purchase up to shares of
common stock (which represents 7% of the aggregate number of shares of common stock sold in this offering (including the number of shares of common stock issuable upon exercise of the pre-funded
warrants and the underwriters' option to purchase additional shares of common stock if exercised) at an assumed exercise price of $ per share of common stock (representing 125% of the
public offering price per share of common stock to be sold in this offering), exercisable for five years from the date of the underwriting agreement. Pursuant to the Financial Industry Regulatory
Authority, Inc., or FINRA, Rule 5110(g), the warrants and any shares of common stock issued upon exercise of the warrants may not be sold, transferred, assigned, pledged or hypothecated,
or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the securities by any person for a period of
180 days immediately following the date of effectiveness or commencement of sales of this offering, except the transfer of any security: (i) by operation of law or by reason of our
reorganization; (ii) to any FINRA member firm participating in the offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction set
forth above for the remainder of the time period; (iii) if the aggregate amount of our securities held by the underwriters or related persons do not exceed 1% of the securities being offered;
(iv) that is beneficially owned on a pro-rata basis by all equity owners of an investment fund, provided that no participating member manages or otherwise directs investments by the fund and
the participating members in the aggregate do not own more than 10% of the equity in the fund; or (v) the exercise or conversion of any security, if all securities remain subject to the lock-up
restriction set forth above for the remainder of the time period.
Right of First Refusal
We have also granted H.C. Wainwright & Co., LLC certain rights of first refusal to act as an underwriter or placement agent
for a period of twelve months following the closing of this offering.
Indemnification
Pursuant to the underwriting agreement, we have agreed to indemnify the underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribute to payments that the underwriter or such other indemnified parties may be required to make in respect of those liabilities.
28
Table of Contents
Determination of Offering Price
The actual offering price of the securities we are offering will be negotiated between us and the underwriters based on the trading of our
shares of common stock prior to the offering, among other things, and may be at a discount to the current market price.
Lock-Up Agreements
We have agreed not to (i) offer, pledge, issue, sell, contract to sell, purchase, contract to purchase, lend or otherwise transfer or
dispose of, directly or indirectly, any shares of our common stock or any securities convertible into or exercisable or exchangeable for our common stock; (ii) enter into any swap or other
arrangement that transfers, in whole or in part, any of the economic consequences of ownership of shares of common stock; or (iii) file any registration statement with the SEC relating to the
offering of any shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock, without the prior written consent of H.C.
Wainwright & Co., LLC for a period of 90 days following the date of this prospectus. This consent may be given at any time without public notice. These restrictions on future
issuances are subject to exceptions, including for (i) the issuance of shares of our common stock and shares of our common stock underlying the pre-funded warrants sold in this offering,
(ii) the issuance of shares of our common stock upon the exercise of outstanding options or pursuant to certain other rights, (iii) the issuance of shares of our common stock or options
to acquire shares of our common stock pursuant to our existing
equity incentive plans and (iv) the filing of one or more registration statements on Form S-8 with respect to shares of our common stock underlying our equity incentive plans from time
to time.
In
addition, subject to certain limited circumstances, each of our directors and executive officers, and our principal stockholder, has entered into a lock-up agreement with the
underwriters. Under the lock-up agreements, the directors, executive officers and this stockholder may not, directly or indirectly, sell, offer to sell, contract to sell, or grant any option for the
sale (including any short sale), grant any security interest in, pledge, hypothecate, hedge, establish an open "put equivalent position" (within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or the Exchange Act), or otherwise dispose of, or enter into any transaction which is designed to or could be expected to result in the disposition of, any
shares of our common stock or securities convertible into or exchangeable for shares of our common stock, or publicly announce any intention to do any of the foregoing, without the prior written
consent of H.C. Wainwright & Co., LLC, for a period of 90 days from the date of this prospectus. This consent may be given at any time without public notice.
Electronic Distribution
This prospectus may be made available in electronic format on websites or through other online services maintained by the underwriters or by
their affiliates. In those cases, prospective investors may view offering terms online and prospective investors may be allowed to place orders online. Other than this prospectus in electronic format,
the information on the underwriter's websites or our website and any information contained in any other websites maintained by the underwriter or by us is not part of this prospectus or the
registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the underwriter in its capacity as underwriter, and should not be relied upon by
investors.
29
Table of Contents
Price Stabilization, Short Positions and Penalty Bids
The underwriters may engage in syndicate covering transactions, stabilizing transactions and penalty bids or purchases for the purpose of
pegging, fixing or maintaining the price of our shares of common stock:
-
-
Syndicate covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover
syndicate short positions. Such a naked short position would be closed out by buying securities in the open market. A naked short position is more likely to be created if the underwriter is concerned
that there could be downward pressure on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
-
-
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specific maximum.
-
-
Penalty bids permit the underwriter to reclaim a selling concession from a syndicate member when the securities originally sold by the
syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
These
syndicate covering transactions, stabilizing transactions and penalty bids may have the effect of raising or maintaining the market prices of our securities or preventing or
retarding a decline in the market prices of our securities. As a result, the price of our shares of common stock may be higher than the price that might otherwise exist in the open market. Neither we
nor the underwriter make any representation or prediction as to the effect that the transactions described above may have on the price of our shares of common stock. These transactions may be effected
on the Nasdaq Capital Market, in the over-the-counter market or on any other trading market and, if commenced, may be discontinued at any time.
In
connection with this offering, the underwriters also may engage in passive market making transactions in our shares of common stock in accordance with Regulation M during a
period before the commencement of offers or sales of our shares of common stock in this offering and extending through
the completion of the distribution. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for that security. However, if all independent bids
are lowered below the passive market maker's bid that bid must then be lowered when specific purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a
level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Neither
we nor the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the prices of our
securities. In addition, neither we nor the underwriters make any representation that the underwriters will engage in these transactions or that any transactions, once commenced, will not be
discontinued without notice.
Other Relationships
From time to time, certain of the underwriters and their affiliates have provided, and may provide in the future, various advisory, investment
and commercial banking and other services to us in the ordinary course of business, for which they have received and may continue to receive customary fees and commissions.
30
Table of Contents
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax consequences of the acquisition, ownership and disposition of our common
stock and the pre-funded warrants, but does not purport to be a complete analysis of all the potential tax considerations relating thereto. This summary is based upon the provisions of the Internal
Revenue Code of 1986, as amended, or the Code, Treasury Regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed
or subject to differing interpretations, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those set forth below. We have not sought and will not
seek any ruling from the Internal Revenue Service, or the IRS, with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a
court will agree with such statements and conclusions.
This
summary also does not address the tax considerations arising under the laws of any U.S. state or local or any non-U.S. jurisdiction, estate or gift tax, the 3.8% Medicare tax on net
investment income
or any alternative minimum tax consequences. In addition, this discussion does not address tax considerations applicable to a holder's particular circumstances or to a holder that may be subject to
special tax rules, including, without limitation:
-
-
banks, insurance companies or other financial institutions;
-
-
tax-exempt or government organizations;
-
-
brokers or dealers in securities or currencies;
-
-
traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;
-
-
persons that own, or are deemed to own, more than five percent of our capital stock;
-
-
certain U.S. expatriates, citizens or former long-term residents of the United States;
-
-
persons who hold our common stock or pre-funded warrants as a position in a hedging transaction, "straddle," "conversion transaction,"
synthetic security, other integrated investment, or other risk reduction transaction;
-
-
persons who do not hold our common stock or pre-funded warrants as a capital asset within the meaning of Section 1221 of the Code
(generally, for investment purposes);
-
-
persons deemed to sell our common stock or pre-funded warrants under the constructive sale provisions of the Code;
-
-
pension plans;
-
-
partnerships, or other entities or arrangements treated as partnerships for U.S. federal income tax purposes, or investors in any such
entities;
-
-
persons for whom our stock constitutes "qualified small business stock" within the meaning of Section 1202 of the Code;
-
-
integral parts or controlled entities of foreign sovereigns;
-
-
passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; or
-
-
persons that acquire our common stock or pre-funded warrants as compensation for services.
In
addition, if a partnership, including any entity or arrangement classified as a partnership for U.S. federal income tax purposes, holds our common stock or pre-funded warrants , the
tax treatment of a partner generally will depend on the status of the partner, the activities of the partnership, and
31
Table of Contents
certain
determinations made at the partner level. Accordingly, partnerships that hold our common stock or pre-funded warrants, and partners in such partnerships, should consult their tax advisors
regarding the U.S. federal income tax consequences to them of the purchase, ownership, and disposition of our common stock and pre-funded warrants.
You
are urged to consult your tax advisor with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the
purchase, ownership and disposition of our common stock, or pre-funded warrants arising under the U.S. federal estate or gift tax rules or under the laws of any U.S. state or local or any non-U.S. or
other taxing jurisdiction or under any applicable tax treaty.
Definition of a U.S. Holder
For purposes of this summary, a "U.S. Holder" is any beneficial owner of our common stock or pre-funded warrants that is a "U.S. person," and is
not a partnership, or an entity treated as a partnership or disregarded from its owner, each for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax
purposes, is or is treated as any of the following:
-
-
an individual who is a citizen or resident of the United States;
-
-
a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
-
-
an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
-
-
a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more U.S. persons (within the meaning
of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.
For
purposes of this summary, a "Non-U.S. Holder" is any beneficial owner of our common stock or pre-funded warrants that is not a U.S. Holder or a partnership, or other entity treated
as a partnership or disregarded from its owner, each for U.S. federal income tax purposes.
Treatment of Pre-funded Warrants
Although it is not entirely free from doubt, a pre-funded warrant should be treated as a share of our common stock for U.S. federal income tax
purposes and a holder of pre-funded warrants should generally be taxed in the same manner as a holder of common stock, as described below. Accordingly, no gain or loss should be recognized upon the
exercise of a pre-funded warrant and, upon exercise, the holding period of a pre-funded warrant should carry over to the share of common stock received. Similarly, the tax basis of the pre-funded
warrant should carry over to the share of common stock received upon exercise, increased by the exercise price of $0.10 per share. Each holder should consult his, her or its own tax advisor regarding
the risks associated with the acquisition of pre-funded warrants pursuant to this offering (including potential alternative characterizations). The balance of this discussion generally assumes that
the characterization described above is respected for U.S. federal income tax purposes.
Allocation of Purchase Price
For U.S. federal income tax purposes, each share of our common stock and each pre-funded warrant should be treated for U.S. federal income tax
purposes as an investment unit consisting of one share of common stock and one pre-funded warrant. Each holder must allocate the purchase price of such unit between each share of common stock and
pre-funded warrant based on the relative fair market value of each at the time of issuance. The price allocated to each share of common stock and pre-funded warrant generally will be the holder's tax
basis in such share or warrant, as the case may be.
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Table of Contents
Tax Consequences to U.S. Holders
Distributions on Common Stock
As discussed above under "Dividend Policy," we do not currently expect to make distributions on our common stock. In the event that we do make
distributions of cash or other property, distributions paid on common stock, other than certain pro rata distributions of common stock, will be treated as a dividend to the extent paid out of our
current or accumulated earnings and profits and will be includible in income by the U.S. Holder and taxable as ordinary income when received. If a distribution exceeds our current and accumulated
earnings and profits, the excess will be first treated as a tax-free return of the U.S. Holder's investment, up to the U.S. Holder's tax basis in the common stock. Any remaining excess will be treated
as a capital gain. Subject to applicable limitations, dividends paid to certain non-corporate U.S. Holders may be eligible for taxation as "qualified dividend income" and therefore may be taxable at
rates applicable to long-term capital gains. U.S. Holders should consult their tax advisers regarding the availability of the reduced tax rate on dividends in their particular circumstances. Dividends
received by a corporate U.S. Holder will be
eligible for the dividends-received deduction if the U.S. Holder meets certain holding period and other applicable requirements.
Sale or Other Disposition of Common Stock
For U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of common stock will be capital gain or loss, and
will be long-term capital gain or loss if the U.S. Holder held the common stock for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder's tax basis in
the common stock disposed of and the amount realized on the disposition. Long-term capital gains recognized by non-corporate U.S. Holders will be subject to reduced tax rates. The deductibility of
capital losses is subject to limitations.
Tax Consequences to Non-U.S. Holders
Distributions
As discussed in the section entitled "Dividend Policy," we do not anticipate paying any dividends on our common stock in the foreseeable future.
If we make distributions on our common, those payments will constitute dividends for U.S. federal income tax purposes to the extent we have current or accumulated earnings and profits, as determined
under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, they will constitute a return of capital and will first
reduce a Non-U.S. Holder's basis in our common stock, as applicable, but not below zero. Any excess will be treated as capital gain and will be treated as described below under the "Gain
on Sale or Other Disposition of Common Stock" section. Any such distributions would be subject to the discussions below regarding back-up withholding and Foreign Account Tax Compliance Act, or FATCA.
Subject
to the discussion below on effectively connected income, any dividend paid to a Non-U.S. Holder generally will be subject to U.S. withholding tax either at a rate of 30% of the
gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. To receive a reduced treaty rate, a Non-U.S. Holder must provide us or our agent with an IRS
Form W-8BEN
(generally including a U.S. taxpayer identification number), IRS Form W-8 BEN-E or another appropriate version of IRS Form W-8 (or a successor form), which must be updated periodically,
and which, in each case, must certify qualification for the reduced rate. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax
treaty.
Dividends
paid to a Non-U.S. Holder that are effectively connected with the Non-U.S. Holder's conduct of a trade or business within the United States and that are not eligible for relief
from U.S. (net basis) income tax under an applicable income tax treaty, generally are exempt from the (gross
33
Table of Contents
basis)
withholding tax described above. To obtain this exemption from withholding tax, the Non-U.S. Holder must provide the applicable withholding agent with an IRS Form W-8ECI or successor
form or other applicable IRS Form W-8 certifying that the dividends are effectively connected with the Non-U.S. Holder's conduct of a trade or business within the United States. Such
effectively connected dividends, if not eligible for relief under a tax treaty, would not be subject to a withholding tax, but would be taxed at the same graduated rates applicable to U.S. persons,
net of certain deductions and credits and if, in addition, the Non-U.S. Holder is a corporation, may also be subject to a branch profits tax at a rate of 30% (or such lower rate as may be specified by
an applicable income tax treaty).
If
you are eligible for a reduced rate of withholding tax pursuant to a tax treaty, you may be able to obtain a refund of any excess amounts withheld if you timely file an appropriate
claim for refund with the IRS.
Gain on Sale or Other Disposition of Common Stock
Subject to the discussion below regarding backup withholding and FATCA, a Non-U.S. Holder generally will not be required to pay U.S. federal
income tax on any gain realized upon the sale or other disposition of our common stock unless:
-
-
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business within the United States and not eligible for
relief under an applicable income tax treaty, in which case the Non-U.S. Holder will be required to pay tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates,
and for a Non-U.S. Holder that is a corporation, such Non-U.S. Holder may be subject to the branch profits tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty)
on such effectively connected gain, as adjusted for certain items;
-
-
the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the
calendar year in which the sale or disposition occurs and certain other conditions are met, in which case the Non-U.S. Holder will be required to pay a flat 30% tax on the gain derived from the sale,
which tax may be offset by U.S. source capital losses (even though the Non-U.S. Holder is not considered a resident of the United States) (subject to applicable income tax or other treaties); or
-
-
we are a "U.S. real property holding corporation" for U.S. federal income tax purposes, or a USRPHC, at any time within the shorter of the
five-year period preceding the disposition or the Non-U.S. Holder's holding period for our common stock. We believe we are not currently and do not anticipate becoming a USRPHC. However, because the
determination of whether we are a USRPHC depends on the fair market value of our United States real property interests relative to the fair market value of our other business assets, there can be no
assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not
be subject to United States federal income tax if (a) shares of our common stock are "regularly traded," as defined by applicable Treasury Regulations, on an established securities market, such
as Nasdaq, and (b) the Non-U.S. Holder owns or owned, actually and constructively, 5% or less of the shares of our common stock throughout the five-year period ending on the date of the sale or
exchange. If the foregoing exception does not apply, such Non-U.S. Holder's proceeds received on the disposition of shares will generally be subject to withholding at a rate of 15% and such Non-U.S.
Holder will generally be taxed on any gain in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will not
apply.
34
Table of Contents
Information Reporting and Backup Withholding
Information returns may be filed with the IRS in connection with distributions on common, and the proceeds of a sale or other disposition of
common stock. A non-exempt U.S. Holder may be subject to U.S. backup withholding on these payments if it fails to provide its taxpayer identification number to the withholding agent and comply with
certification procedures or otherwise establish an exemption from backup withholding.
A
Non-U.S. Holder may be subject to U.S. information reporting and backup withholding on these payments unless the Non-U.S. Holder complies with certification procedures to establish
that it is not a U.S. person (within the meaning of the Code). The certification requirements generally will be satisfied if the Non-U.S. Holder provides the applicable withholding agent with a
statement on the applicable IRS Form (or suitable substitute or successor form), together with all appropriate attachments, signed under penalties of perjury, stating, among other things, that such
Non-U.S. Holder is not a U.S. Person. Applicable Treasury Regulations provide alternative methods for satisfying this requirement. In addition, the amount of distributions on common stock paid to a
Non-U.S. Holder, and the amount of any U.S. federal tax withheld therefrom, must be reported annually to the IRS and the holder. This information may be made available by the IRS under the provisions
of an applicable tax treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides.
Payment
of the proceeds of the sale or other disposition of common stock to or through a non-U.S. office of a U.S. broker or of a non-U.S. broker with certain specified U.S. connections
generally will be subject to information reporting requirements, but not backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or an
exemption otherwise applies. Payments of the proceeds of a sale or other disposition of common stock to or through a U.S. office of a broker generally will be subject to information reporting and
backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or otherwise establishes an exemption.
Backup
withholding is not an additional tax. The amount of any backup withholding from a payment generally will be allowed as a credit against the holder's U.S. federal income tax
liability and may entitle the holder to a refund, provided that the required information is timely furnished to the IRS.
Foreign Accounts
The Code generally imposes a U.S. federal withholding tax of 30% on dividends and, subject to the discussion below regarding proposed
regulations recently issued by the U.S. Treasury Department, the gross proceeds of a disposition of our securities paid to a "foreign financial institution" (as specifically defined for this purpose),
unless such institution enters into an agreement with the U.S. government to, among other things, withhold on certain payments and to collect and provide to the U.S. tax authorities substantial
information regarding U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with
U.S. owners) or otherwise qualifies for an exemption from these rules. A U.S. federal withholding tax of 30% also applies to dividends and, subject to the discussion below regarding proposed
regulations recently issued by the U.S. Treasury Department, will apply to the gross proceeds of a disposition of our securities paid to a non-financial foreign entity (as defined in the Code), unless
such entity provides the withholding agent with either a certification that it does not have any substantial direct or indirect.
Under
certain circumstances, a non-U.S. holder might be eligible for refunds or credits of such taxes. An intergovernmental agreement between the United States and an applicable foreign
country may modify the requirements described in this paragraph.
35
Table of Contents
The
U.S. Treasury Department recently released proposed regulations which, if finalized in their present form, would eliminate the federal withholding tax of 30% applicable to the gross
proceeds of a sale or other disposition of our common stock. In its preamble to such proposed regulations, the U.S. Treasury Department stated that taxpayers may generally rely on the proposed
regulations until final regulations are issued. Prospective investors should consult their own tax advisors regarding the possible impact of these rules on their investment in our common stock, and
the possible impact of these rules and the proposed regulations on the entities through which they hold our common stock, including, without limitation, the process and deadlines for meeting the
applicable requirements to prevent the imposition of this 30% withholding tax.
EACH
PROSPECTIVE INVESTOR SHOULD CONSULT ITS TAX ADVISOR REGARDING THE PARTICULAR U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR
SECURITIES, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN APPLICABLE LAWS. IN ADDITION, SIGNIFICANT CHANGES IN U.S. FEDERAL TAX LAWS WERE RECENTLY ENACTED. PROSPECTIVE INVESTORS SHOULD ALSO
CONSULT WITH THEIR TAX ADVISORS WITH
RESPECT TO SUCH CHANGES IN U.S. TAX LAW AS WELL AS POTENTIAL CONFORMING CHANGES IN STATE TAX LAWS.
36
Table of Contents
LEGAL MATTERS
Cooley LLP of Palo Alto, California will pass upon the validity of the shares of common stock and pre-funded warrants offered hereby. The
underwriters are being represented by McDermott Will & Emery LLP in connection with the offering.
EXPERTS
The consolidated financial statements of Vaxart, Inc. as of December 31, 2018 and 2017, and for each of the years in the two year
period ended December 31, 2018, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2018 consolidated financial statements contains an
explanatory paragraph that states that the Company has experienced losses and negative cash flows from operations since its inception, has an accumulated deficit, and has debt obligations which raise
substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
On
February 13, 2018, privately-held Vaxart, Inc., or Private Vaxart, and Aviragen Therapeutics, Inc., or Aviragen, completed a business combination in accordance
with the terms an agreement and plan of merger and reorganization, dated October 27, 2017, by and among Aviragen, Agora Merger Sub, Inc., or Merger Sub, and Private Vaxart, pursuant to
which Merger Sub merged with and into Private Vaxart, with Private Vaxart surviving as a wholly-owned subsidiary of Aviragen, or the Merger. Aviragen changed its name at the closing of the Merger to
Vaxart, Inc., or the Combined Company, and Private Vaxart changed its name to Vaxart Biosciences, Inc. For accounting purposes, Aviragen was deemed to be the acquired entity in the
Merger, and the financial statements of Private Vaxart became the historical financial statements of the Combined Company following the Merger.
In
connection with the closing of the Merger on February 13, 2018, the board of directors of Vaxart, Inc. dismissed Ernst & Young LLP as its independent
registered public accounting firm, effective immediately. The reports of Ernst & Young LLP on Aviragen Therapeutics, Inc.'s consolidated financial statements for the fiscal years
ended June 30, 2017 and 2016 did not contain an adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope, or accounting principles. During
the fiscal years ended June 30, 2017 and 2016, and the subsequent interim period through February 13, 2018 there were no: (1) disagreements (as defined in
Item 304(a)(1)(iv) of Regulation S-K and the related instructions) with Ernst & Young LLP on any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedures, which disagreement if not resolved to the satisfaction of Ernst & Young LLP would have caused Ernst & Young LLP to make
reference thereto in its reports on the consolidated financial statements for such years, or (2) reportable events (as described in Item 304(a)(1)(v) of Regulation S-K).
On
February 13, 2018, the board of directors of Vaxart, Inc., in connection with the Merger and the dismissal of Ernst & Young LLP, approved the engagement of
KPMG LLP as the Combined Company's independent registered public accounting firm for the year ending December 31, 2017.
37
Table of Contents
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock and
pre-funded warrants. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits filed with
the registration statement. For further information about us and the common stock and pre-funded warrants offered hereby, we refer you to the registration statement and the exhibits filed with the
registration statement. Statements contained in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement are not
necessarily complete, and each such statement is qualified in all respects by reference to the full text of such contract or other document filed as an exhibit to the registration statement.
We
are subject to the information and reporting requirements of the Exchange Act and, in accordance with this law, are required to file periodic reports, proxy statements and other
information with the
SEC. You can read our SEC filings, including the registration statement, over the internet at the SEC's website at
www.sec.gov
.
We
make available free of charge, on or through the investor relations section of our website, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. The information found on our website,
www.vaxart.com
, other than as specifically incorporated by reference in
this prospectus, is not part of this prospectus.
38
Table of Contents
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" information from other documents that we file with it, which means that we can disclose
important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes
information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the
information in this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we
have filed with the SEC (Commission File No. 001-35285):
-
-
our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on February 6, 2019;
-
-
our Current Report on Form 8-K filed with the SEC on January 18, 2019; and
-
-
the description of our common stock contained in our Registration Statement on Form 10, filed with the SEC on May 4, 1970, as
amended by our Current Report on Form 8-K (File No. 000-04829) filed with the SEC on August 15, 2003.
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form
that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until the
termination of the offering of the shares of our common stock made by this prospectus and will become a part of this prospectus from the date that such documents are filed with the SEC. Information in
such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such
earlier statements.
You
can request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Vaxart, Inc.
290 Utah Ave
Suite 200
South San Francisco, California 94080
Attn: Secretary
(650) 550-3500
Copies
of these filings are also available through the "Investor" section of our website at
www.vaxart.com
. For other ways to obtain a
copy of these filings, please refer to "Where You Can Find More Information" above.
Any
information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus modifies or replaces such
information.
39
Table of Contents
Shares of Common Stock
Pre-Funded Warrants to Purchase Shares of Common Stock
Prospectus
Sole Book-Running Manager
H.C. Wainwright & Co.
Manager
CIM Securities, LLC
,
2019
Table of Contents
PART IIINFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an estimate of the fees and expenses, other than underwriting discounts and commissions payable by us in
connection with the issuance and distribution of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee and the FINRA filing fee.
|
|
|
|
|
|
|
Amount
|
|
SEC registration fee
|
|
$
|
1,394
|
|
FINRA filing fee
|
|
|
2,225
|
|
Accounting fees and expenses
|
|
|
100,000
|
|
Legal fees and expenses
|
|
|
250,000
|
|
Transfer agent and registrar fees
|
|
|
15,000
|
|
Printing fees
|
|
|
100,000
|
|
Miscellaneous expenses
|
|
|
131,381
|
|
|
|
|
|
|
Total
|
|
$
|
600,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under
the Securities Act of 1933, as amended, or the Securities Act.
Our
amended and restated certificate of incorporation provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware
General Corporation Law, and our amended and restated bylaws require us to indemnify our directors, officers, employees, and other agents to the maximum extent permitted by the Delaware General
Corporation Law. However, Delaware law prohibits the Registrant's certificate of incorporation from limiting the liability of the Registrant's directors for the
following:
-
-
any breach of the director's duty of loyalty to us or to our stockholders;
-
-
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
-
-
unlawful payment of dividends or unlawful stock repurchases or redemptions; and
-
-
any transaction from which the director derived an improper personal benefit.
We
have entered and expect to continue to enter into agreements to indemnify our directors and executive officers. With certain exceptions, these agreements provide for indemnification
for related expenses including, among other things, attorneys' fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. At present, there is no
pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought and we are not aware of any threatened litigation that may result in claims
for indemnification.
We
maintain insurance policies that indemnify our directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any
director or officer in his capacity as such.
The
Underwriting Agreement filed as Exhibit 1.1 to this Registration Statement provides for indemnification by the underwriters of us and our directors and officers for certain
liabilities under the Securities Act, or otherwise.
II-1
Table of Contents
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
-
(a)
-
Exhibits.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
Exhibit
Number
|
|
|
|
Schedule/
Form
|
|
File
Number
|
|
Exhibit
|
|
File Date
|
|
1.1
|
*
|
Underwriting Agreement.
|
|
|
|
|
|
|
|
|
|
2.1
|
|
Agreement and Plan of Merger and Reorganization, dated October 27, 2017, by and among Aviragen Therapeutics, Inc., Vaxart,
Inc. and Agora Merger Sub, Inc.
|
|
8-K
|
|
001-35285
|
|
2.1
|
|
October 30, 2017
|
|
2.2
|
|
Amendment No. 1, dated as of February 7, 2018, to the Agreement and Plan of Merger and Reorganization, dated
October 27, 2017, by and among Aviragen Therapeutics, Inc., Vaxart, Inc. and Agora Merger Sub, Inc.
|
|
8-K
|
|
001-35285
|
|
2.1
|
|
February 7, 2018
|
|
3.1
|
|
Restated Certificate of Incorporation of Aviragen Therapeutics, Inc.
|
|
10-K
|
|
001-35285
|
|
3.1
|
|
September 13, 2016
|
|
3.2
|
|
Certificate of Amendment to Restated Certificate of Incorporation of Aviragen Therapeutics, Inc.
|
|
8-K
|
|
001-35285
|
|
3.1
|
|
February 20, 2018
|
|
3.3
|
|
Certificate of Amendment to Restated Certificate of Incorporation of Vaxart, Inc.
|
|
8-K
|
|
001-35285
|
|
3.2
|
|
February 20, 2018
|
|
3.4
|
|
Restated By-laws of Aviragen Therapeutics, Inc.
|
|
10-K
|
|
001-35285
|
|
3.2
|
|
September 13, 2016
|
|
4.1
|
|
Reference is made to Exhibits
3.1
to
3.3
.
|
|
|
|
|
|
|
|
|
|
4.2
|
|
Specimen Common Stock Certificate.
|
|
S-3
|
|
333-228910
|
|
4.2
|
|
December 20, 2018
|
|
5.1
|
*
|
Opinion of Cooley LLP.
|
|
|
|
|
|
|
|
|
|
10.1
|
+
|
Collaboration and License Agreement dated September 29, 2003, between Biota Holdings Limited and Sankyo Co.,
Ltd.
|
|
10-Q
|
|
001-35285
|
|
10.5
|
|
May 10, 2013
|
|
10.2
|
+
|
Amendment #1 to Collaboration and License Agreement dated June 30, 2005, between Biota Holdings Limited, Biota Scientific
Management Pty. Ltd. and Sankyo Company, Ltd.
|
|
10-Q
|
|
001-35285
|
|
10.6
|
|
May 10, 2013
|
II-2
Table of Contents
|
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Incorporated by Reference
|
Exhibit
Number
|
|
|
|
Schedule/
Form
|
|
File
Number
|
|
Exhibit
|
|
File Date
|
|
10.3
|
|
Amendment #2 to Collaboration and License Agreement, dated March 27, 2009, between Biota Holdings Limited, Biota Scientific
Management Pty. Ltd. and Daiichi Sankyo Company, Limited
|
|
10-Q
|
|
001-35285
|
|
10.7
|
|
May 10, 2013
|
|
10.4
|
+
|
Commercialization Agreement dated March 27, 2009, between Biota Holdings Limited, Biota Scientific Management Pty. Ltd and
Daiichi Sankyo Company, Ltd.
|
|
10-Q
|
|
001-35285
|
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10.8
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|
May 10, 2013
|
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10.5
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+
|
Contract dated March 31, 2011, between Biota Scientific Management Pty. Ltd. and Office of Biomedical Advanced Research
and Development Authority within the Office of the Assistant Secretary for preparedness and Response at the U.S. Department of Health and Human Services
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10-Q
|
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001-35285
|
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10.9
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May 10, 2013
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10.6
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Research and License Agreement dated February 21, 1990, by and among Biota Scientific Management Pty. Ltd., Biota Holdings
Limited, Glaxo Australia Pty. Ltd. and Glaxo Group Limited
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10-K
|
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001-35285
|
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10.6
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September 27, 2013
|
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10.7
|
#
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2007 Omnibus Equity and Incentive Plan (included as Appendix A to the proxy statement)
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DEF 14A
|
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000-04829
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April 12, 2007
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10.8
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#
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Form of Employee Stock Option Agreement under the 2007 Omnibus Equity and Incentive Plan
|
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8-K
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001-35285
|
|
10.1
|
|
December 10, 2013
|
|
10.9
|
+
|
Royalty Interest Acquisition Agreement by and between Aviragen Therapeutics, Inc., Biota Holdings Pty Ltd, Biota
Scientific Management Pty. Ltd. and HealthCare Royalty Partners III, L.P. dated April 22, 2016
|
|
8-K
|
|
001-35285
|
|
10.1
|
|
April 26, 2016
|
|
10.10
|
|
Protective Rights Agreement between Aviragen Therapeutics, Inc. and HealthCare Royalty Partners III, L.P. dated
April 22, 2016
|
|
8-K
|
|
001-35285
|
|
10.2
|
|
April 26, 2016
|
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10.11
|
#
|
Form of Employee Stock Option Agreement under the 2016 Equity Incentive Plan
|
|
10-Q
|
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001-35285
|
|
10.1
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|
May 8, 2017
|
II-3
Table of Contents
|
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|
|
Incorporated by Reference
|
Exhibit
Number
|
|
|
|
Schedule/
Form
|
|
File
Number
|
|
Exhibit
|
|
File Date
|
|
10.12
|
#
|
2016 Equity Incentive Plan (included as Appendix A to the proxy statement)
|
|
DEF 14A
|
|
001-35285
|
|
|
|
September 27, 2016
|
|
10.13
|
#
|
Director Stock Option Agreement
|
|
S-4
|
|
333-222009
|
|
10.22
|
|
December 12, 2017
|
|
10.14
|
|
Form of Indemnification Agreement by and between Vaxart, Inc. and its Directors and Executive Officers.
|
|
8-K
|
|
001-35285
|
|
10.3
|
|
February 20, 2018
|
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10.15
|
#
|
Vaxart, Inc. Amended and Restated 2007 Equity Incentive Plan, Stock Option Agreement, form of Notice of Stock Option Grant,
form of Additional Terms and Conditions to Option and Stock Option Exercise Agreement
|
|
S-4/A
|
|
333-222009
|
|
10.24
|
|
December 29, 2017
|
|
10.16
|
#
|
Offer Letter, dated May 25, 2011, and Amendment to Offer Letter and Option Grant Agreement, dated October 1, 2011, by
and between Vaxart, Inc. and Wouter W. Latour, M.D.
|
|
S-4/A
|
|
333-222009
|
|
10.25
|
|
December 29, 2017
|
|
10.17
|
|
Industrial Lease dated October 28, 2013, by and between Vaxart, Inc. and Oyster Point LLC
|
|
S-4/A
|
|
333-222009
|
|
10.26
|
|
December 29, 2017
|
|
10.18
|
|
Lease Agreement dated April 17, 2015, by and between Vaxart, Inc. and CRP Edgewater, LLC
|
|
S-4/A
|
|
333-222009
|
|
10.27
|
|
December 29, 2017
|
|
10.19
|
|
Loan and Security Agreement dated December 22, 2016, by and between Vaxart, Inc. and Oxford
Finance LLC
|
|
S-4/A
|
|
333-222009
|
|
10.28
|
|
December 29, 2017
|
|
10.20
|
|
Second Amendment to the Loan Agreement, dated February 13, 2018, between Vaxart, Inc. and Oxford
Finance LLC.
|
|
8-K
|
|
001-35285
|
|
10.1
|
|
February 20, 2018
|
|
10.21
|
#
|
Severance Benefit Plan and Form of Severance Benefit Plan Participation Notice.
|
|
8-K
|
|
001-35285
|
|
10.1
|
|
June 6, 2018
|
|
10.22
|
|
Settlement Agreement by and among Vaxart, Inc., Digirad Corporation, East Hill Management Company, LLC, and Aviragen
Therapeutics, Inc.
|
|
8-K
|
|
001-35285
|
|
10.1
|
|
February 9, 2018
|
|
10.23
|
|
Form of Sales Agreement dated December 19, 2018 by and between Vaxart, Inc. and B. Riley FBR,
Inc.
|
|
S-3
|
|
333-228910
|
|
1.2
|
|
December 20, 2018
|
II-4
Table of Contents
-
*
-
To
be filed by amendment.
-
#
-
Management
contract or compensation plan or arrangement.
-
+
-
Confidential
portions of this exhibit have been omitted and filed separately with the Commission pursuant to confidential treatment granted under Rule 24b-2
promulgated under the Exchange Act
-
(b)
-
Financial Statement Schedules.
Financial
statement schedules have been omitted, as the information required to be set forth therein is included in the Consolidated Financial Statements or Notes thereto appearing in
the prospectus made part of this registration statement.
ITEM 17. UNDERTAKINGS
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 foregoing provisions, 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.
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;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the 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
II-5
Table of Contents
in
the 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 Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement;
-
(2)
-
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
-
(3)
-
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
-
(4)
-
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424 (§230.424
of this chapter);
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
-
(5)
-
For
purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective.
-
(6)
-
For
the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
II-6
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, in the City of South San Francisco, State of California, on February 6, 2019.
|
|
|
|
|
|
|
VAXART, INC.
|
|
|
By:
|
|
/s/ WOUTER W. LATOUR, M.D.
Wouter W. Latour, M.D.
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes
and appoints Wouter W. Latour, M.D. and Margaret A. Echerd, and each of them, as true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for them and in
their name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments) to this registration statement, and to sign any
registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in their names and behalf in
their capacities as officers and directors to enable Vaxart, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he or she might or could do in person, ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ WOUTER W. LATOUR, M.D.
Wouter W. Latour, M.D.
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer and Principal Financial Officer)
|
|
February 6, 2019
|
/s/ MARGARET A. ECHERD
Margaret A. Echerd
|
|
Vice President, Corporate Controller
(Principal Accounting Officer)
|
|
February 6, 2019
|
/s/ RICHARD J. MARKHAM
Richard J. Markham
|
|
Chairman of the Board
|
|
February 6, 2019
|
II-7
Table of Contents
|
|
|
|
|
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ MICHAEL J. FINNEY, PH.D.
Michael J. Finney, Ph.D.
|
|
Director
|
|
February 6, 2019
|
/s/ ANNE M. VANLENT
Anne M. VanLent
|
|
Director
|
|
February 6, 2019
|
/s/ GEOFFREY F. COX, PH.D.
Geoffrey F. Cox, Ph.D.
|
|
Director
|
|
February 6, 2019
|
/s/ JOHN P. RICHARD
John P. Richard
|
|
Director
|
|
February 6, 2019
|
II-8
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