(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)
Charles P. Theuer, M.D., Ph.D.
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Scott B. Brown, CPA
Vice President, Finance
TRACON Pharmaceuticals, Inc.
4350 La Jolla Village Drive, Suite 800
San Diego, California 92122
(858) 550-0780
|
Sean M. Clayton
Cooley LLP
4401 Eastgate Mall
San Diego, California 92121
(858) 550-6000
|
From time to time after the effective date of this registration statement
(Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
☒
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.
☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
|
☐
|
|
Accelerated filer
|
☐
|
Non-accelerated filer
|
☐
|
|
Smaller reporting company
|
☒
|
|
|
|
Emerging growth company
|
☒
|
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☒
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
|
Amount
to be
Registered
|
Proposed
Maximum
Aggregate
Offering Price
|
Amount of
Registration Fee (1)
|
Common Stock, par value $0.001 per share
|
(2)
|
(3)
|
—
|
Preferred Stock, par value $0.001 per share
|
(2)
|
(3)
|
—
|
Warrants
|
(2)
|
(3)
|
—
|
Total
|
(2)
|
$100,000,000(1)
|
$0
|
(1)
|
Calculated pursuant to Rule 457(o) under the Securities Act. Pursuant to Rule 415(a)(6) under the Securities Act, securities with a maximum aggregate price of $100,000,000 registered hereunder are unsold shares (the “Unsold Shares”) previously covered by the registrant’s registration statement on Form S-3 (File No. 333-209313), initially filed with the Securities and Exchange Commission on February 1, 2016 (the “Prior Registration Statement”). Pursuant to Rule 415(a)(6) under the Securities Act, the registration fees of $10,070 that were previously paid in connection with the Unsold Shares under the Prior Registration Statement are being carried forward and will continue to be applied to the Unsold Shares.
|
(2)
|
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, and such indeterminate number of warrants to purchase common stock or preferred stock, as shall have an aggregate initial offering price not to exceed $100,000,000. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
(3)
|
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act.
|
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 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.
EXPLANATORY NOTE
This registration statement contains:
|
•
|
a base prospectus which covers the offering, issuance and sale by the registrant of up to a maximum aggregate offering price of $100,000,000 of our common stock, preferred stock and/or warrants; and
|
|
•
|
a sales agreement prospectus covering the offering, issuance and sale of up to $8,031,948 of shares of our common stock that may be issued and sold under the
Capital on Demand
TM
Sales Agreement,
dated September 6, 2018, as amended by Amendment No. 1 to Sales Agreement, dated February 28, 2019, or Sales Agreement, between us and JonesTrading Institutional Services LLC.
|
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The common stock that may be offered, issued and sold by us under the sales agreement prospectus is included in the $100,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales Agreement, any portion of the $8,031,948 included in the sales agreement prospectus that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus.
The
information
in
this
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
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.
SUBJECT
TO
COMPLETION,
DATED FEBRUARY 28,
2
019
PROSPECTUS
$100,000,000
Common
Stock
Preferred
Stock
Warrants
From
time
to
time,
we
may
offer
up
to
$100,000,000
of
any
combination
of
the
securities
described
in
this
prospectus
in
one
or
more
offerings.
We
may
also
offer
securities
as
may
be
issuable
upon
conversion,
redemption,
repurchase,
exchange
or
exercise
of
any
securities
registered
hereunder,
including
any
applicable
anti-dilution
provisions.
This
prospectus
provides
a
general
description
of
the
securities
we
may
offer.
Each
time
we
offer
securities,
we
will
provide
specific
terms
of
the
securities
offered
in
a
supplement
to
this
prospectus.
We
may
also
authorize
one
or
more
free
writing
prospectuses
to
be
provided
to
you
in
connection
with
these
offerings.
A
prospectus
supplement
and
any
related
free
writing
prospectus
may
also
add,
update
or
change
information
contained
in
this
prospectus.
You
should
carefully
read
this
prospectus,
the
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
as
well
as
any
documents
incorporated
by
reference,
before
you
invest
in
any
of
the
securities
being
offered.
This
prospectus
may
not
be
used
to
consummate
a
sale
of
any
securities
unless
accompanied
by
a
prospectus
supplement.
Our
common
stock
is
traded
on
the
Nasdaq
Global
Market
under
the
symbol
“TCON.”
On February 6
,
2019,
the
last
reported
sales
price
of our
common
stock
was
$1.12
per
share.
The
applicable
prospectus
supplement
will
contain
information,
where
applicable,
as
to
any
other
listing
on
the
Nasdaq
Global
Market
or
any
securities
market
or
other
exchange
of
the
securities,
if
any,
covered
by
the
prospectus
supplement.
As of February 6, 2019, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately $24.1 million, based on 21,514,147 shares of outstanding common stock held by non-affiliates as of such date, at a price of $1.12 per share, which was the last reported sale price of our common stock on the Nasdaq Global Market on February 6, 2019. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on the registration statement of which this prospectus is a part in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75.0 million. We have not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar months prior to and including the date of this prospectus.
We
may
sell
these
securities
directly
to
investors,
through
agents
designated
from
time
to
time
or
to
or
through
underwriters
or
dealers,
on
a
continuous
or
delayed
basis.
For
additional
information
on
the
methods
of
sale,
you
should
refer
to
the
section
entitled
“Plan
of
Distribution”
in
this
prospectus.
If
any
agents
or
underwriters
are
involved
in
the
sale
of
any
securities
with
respect
to
which
this
prospectus
is
being
delivered,
the
names
of
such
agents
or
underwriters
and
any
applicable
fees,
commissions,
discounts
or
options to purchase securities
will
be
set
forth
in
a
prospectus
supplement.
The
price
to
the
public
of
such
securities
and
the
net
proceeds
we
expect
to
receive
from
such
sale
will
also
be
set
forth
in
a
prospectus
supplement.
Investing
in
our
securities
involves
a
high
degree
of
risk.
You
should
review
carefully
the
risks
and
uncertainties
described
under
the
heading
“Risk
Factors”
contained
in
the
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
and
under
similar
headings
in
the
other
documents
that
are
incorporated
by
reference
into
this
prospectus.
NEITHER
THE
SECURITIES
AND
EXCHANGE
COMMISSION
NOR
ANY
STATE
SECURITIES
COMMISSION
HAS
APPROVED
OR
DISAPPROVED
OF
THESE
SECURITIES
OR
DETERMINED
IF
THIS
PROSPECTUS
IS
TRUTHFUL
OR
COMPLETE.
ANY
REPRESENTATION
TO
THE
CONTRARY
IS
A
CRIMINAL
OFFENSE.
The
date
of
this
prospectus
is
,
2019.
TABLE
OF
CONTENTS
ABOUT
THIS
PROSPECTUS
This
prospectus
is
a
part
of
a
registration
statement
on
Form
S-3
that
we
filed
with
the
Securities
and
Exchange
Commission,
or
SEC,
utilizing
a
“shelf”
registration
process.
Under
this
shelf
registration
process,
we
may
sell
any
combination
of
the
securities
described
in
this
prospectus
in
one
or
more
offerings
up
to
a
total
aggregate
offering
price
of
$100,000,000.
This
prospectus
provides
you
with
a
general
description
of
the
securities
we
may
offer.
Each
time
we
sell
securities
under
this
prospectus,
we
will
provide
a
prospectus
supplement
that
will
contain
specific
information
about
the
terms
of
that
offering.
We
may
also
authorize
one
or
more
free
writing
prospectuses
to
be
provided
to
you
that
may
contain
material
information
relating
to
these
offerings.
The
prospectus
supplement
and
any
related
free
writing
prospectus
that
we
may
authorize
to
be
provided
to
you
may
also
add,
update
or
change
information
contained
in
this
prospectus
or
in
any
documents
that
we
have
incorporated
by
reference
into
this
prospectus.
You
should
read
this
prospectus,
any
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
together
with
the
information
incorporated
herein
by
reference
as
described
under
the
heading
“Incorporation
of
Certain
Information
By
Reference,”
before
investing
in
any
of
the
securities
offered.
THIS
PROSPECTUS
MAY
NOT
BE
USED
TO
CONSUMMATE
A
SALE
OF
SECURITIES
UNLESS
IT
IS
ACCOMPANIED
BY
A
PROSPECTUS
SUPPLEMENT.
Neither
we,
nor
any
agent,
underwriter
or
dealer
has
authorized
any
person
to
give
any
information
or
to
make
any
representation
other
than
those
contained
or
incorporated
by
reference
in
this
prospectus,
any
applicable
prospectus
supplement
or
any
related
free
writing
prospectus
prepared
by
or
on
behalf
of
us
or
to
which
we
have
referred
you.
This
prospectus,
any
applicable
supplement
to
this
prospectus
or
any
related
free
writing
prospectus
do
not
constitute
an
offer
to
sell
or
the
solicitation
of
an
offer
to
buy
any
securities
other
than
the
registered
securities
to
which
they
relate,
nor
do
this
prospectus,
any
applicable
supplement
to
this
prospectus
or
any
related
free
writing
prospectus
constitute
an
offer
to
sell
or
the
solicitation
of
an
offer
to
buy
securities
in
any
jurisdiction
to
any
person
to
whom
it
is
unlawful
to
make
such
offer
or
solicitation
in
such
jurisdiction.
You
should
not
assume
that
the
information
contained
in
this
prospectus,
any
applicable
prospectus
supplement
or
any
related
free
writing
prospectus
is
accurate
on
any
date
subsequent
to
the
date
set
forth
on
the
front
of
the
document
or
that
any
information
we
have
incorporated
by
reference
is
correct
on
any
date
subsequent
to
the
date
of
the
document
incorporated
by
reference,
even
though
this
prospectus,
any
applicable
prospectus
supplement
or
any
related
free
writing
prospectus
is
delivered,
or
securities
are
sold,
on
a
later
date.
This
prospectus
contains
summaries
of
certain
provisions
contained
in
some
of
the
documents
described
herein,
but
reference
is
made
to
the
actual
documents
for
complete
information.
All
of
the
summaries
are
qualified
in
their
entirety
by
the
actual
documents.
Copies
of
some
of
the
documents
referred
to
herein
have
been
filed,
will
be
filed
or
will
be
incorporated
by
reference
as
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part,
and
you
may
obtain
copies
of
those
documents
as
described
below
under
the
heading
“Where
You
Can
Find
More
Information.”
i
SUM
MARY
This
summary
highlights
selected
information
from
this
prospectus
and
does
not
contain
all
of
the
information
that
you
need
to
consider
in
making
your
investment
decision.
You
should
carefully
read
the
entire
prospectus,
the
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
including
the
risks
of
investing
in
our
securities
discussed
under
the
heading
“Risk
Factors”
contained
in
the
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
and
under
similar
headings
in
the
other
documents
that
are
incorporated
by
reference
into
this
prospectus.
You
should
also
carefully
read
the
information
incorporated
by
reference
into
this
prospectus,
including
our
financial
statements,
and
the
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part.
Unless
the
context
indicates
otherwise,
as
used
in
this
prospectus,
the
terms
“TRACON,”
“the
Company,”
“we,”
“us”
and
“our”
refer
to
TRACON Pharmaceuticals
,
Inc.,
a
Delaware
corporation.
This
prospectus
contains
references
to
our
trademarks
and
to
trademarks
and
to
trademarks
belonging
to
other
entities.
Solely
for
convenience,
trademarks
and
trade
names
referred
to
in
this
prospectus,
including
logos,
artwork
and
other
visual
displays,
may
appear
without
the
®
or
TM
symbols,
but
such
references
are
not
intended
to
indicate,
in
any
way,
that
their
respective
owners
will
not
assert,
to
the
fullest
extent
under
applicable
law,
their
rights
thereto.
We
do
not
intend
our
use
or
display
of
other
companies’
trade
names
or
trademarks
to
imply
a
relationship
with,
or
endorsement or
sponsorship
of
us
by,
any
other
companies.
Company
Overview
We are a biopharmaceutical company focused on the development and commercialization of novel targeted therapeutics for cancer and, through our license to Santen Pharmaceutical Co. Ltd., or Santen, wet age-related macular degeneration, or wet AMD. We are a leader in the field of endoglin biology and are using our expertise to develop antibodies that bind to the endoglin receptor. Endoglin is essential to angiogenesis, the process of new blood vessel formation required for solid cancer growth and wet AMD. We are developing our lead product candidate, TRC105 (carotuximab), an endoglin antibody, for the treatment of multiple solid tumor types in combination with inhibitors of the vascular endothelial growth factor, or VEGF, pathway, or in combination with inhibitors of the programmed cell death protein 1, or PD-1, pathway. The VEGF pathway regulates vascular development in the embryo, or vasculogenesis, and angiogenesis, while the PD-1 pathway represents an adaptive immune resistance mechanism that protects tumors from host immunity. We believe treatment with TRC105 in combination with VEGF inhibitors or PD-1 inhibitors may improve survival in cancer patients when compared to treatment with a VEGF inhibitor or PD-1 inhibitor alone. TRC105 has been studied in 13 completed Phase 2 clinical trials and four completed Phase 1 clinical trials, and is currently being dosed in one Phase 3 clinical trial, three Phase 2 clinical trials and one Phase 1 clinical trial. Our TRC105 oncology clinical development plan is broad and involves a tiered approach. We are initially focused on angiosarcoma which is a tumor that highly expresses endoglin, the target of TRC105, and therefore may be more responsive to treatment with TRC105. We have seen complete durable responses in this tumor type and are currently enrolling the international multicenter Phase 3 TAPPAS trial in angiosarcoma. We obtained Special Protocol Assessment agreement from the U.S. Food and Drug Administration, or FDA, on our clinical trial design for the Phase 3 trial in angiosarcoma and also incorporated scientific advice from the European Medicines Agency, or EMA, regarding the adequacy of the trial design. We also received orphan drug designation from the FDA and the EMA for TRC105 for the treatment of soft tissue sarcoma, including angiosarcoma, in 2016.
We utilize a product development platform that emphasizes capital efficiency. Our experienced clinical operations, data management, quality assurance, product development and regulatory affairs groups manage significant aspects of our clinical trials with internal resources. We use these internal resources to minimize the costs associated with utilizing contract research organizations, or CROs. In our experience, this model has resulted in capital efficiencies and improved communication with clinical trial sites, which expedites patient enrollment and allows direct access to patient data as compared to a CRO-managed model, and we have leveraged this capital efficient model in all of our ongoing clinical trials including our international Phase 3 TAPPAS trial in angiosarcoma. We have also leveraged our product development platform to diversify our product pipeline through a license agreement with Janssen Pharmaceutica N.V., or Janssen, as well as through our strategic collaboration agreements with I-Mab Biopharma, and continue to evaluate potential value creating business opportunities with other companies utilizing our product development platform. We continue to evaluate ex-U.S. companies who are in need of a rapid and capital-efficient U.S. drug development solution that includes U.S. and European Union clinical development expertise and U.S. commercialization expertise. We believe we can become a preferred clinical developmental and U.S. commercialization partner through a cost- and risk-sharing partnership structure which may include U.S. commercialization.
We have produced a formulation of TRC105 called DE-122 for ophthalmology indications, which is being developed by Santen for the treatment of wet AMD, the leading cause of blindness in the Western world. In March 2014, Santen licensed from us exclusive worldwide rights to develop and commercialize our endoglin antibodies for ophthalmology indications, and in July 2017 Santen initiated dosing in a randomized Phase 2 clinical trial of DE-122 in wet AMD.
Our other product candidates are TRC102, which is a small molecule that is in Phase 2 clinical development for the treatment of mesothelioma and glioblastoma, and TRC253, which is a small molecule in a Phase 1/2 clinical trial for the treatment of metastatic castration-resistant prostate cancer that we licensed from Janssen in September 2016.
TRC102 is a small molecule in clinical development to reverse resistance to specific chemotherapeutics by inhibiting base‑excision repair, or BER. In initial clinical trials of more than 100 patients, TRC102 has shown good tolerability and promising anti-tumor activity in combination with alkylating and antimetabolite chemotherapy in the treatment of lung cancer and glioblastoma TRC102 is being studied in a Phase 2 trial with Temodar in patients with ovarian, colorectal and lung cancer and with Alimta (pemetrexed) in patients with mesothelioma, in addition to two Phase 1 trials.
1
All current TRC102 trials are sponsored and funded by the National Cancer Institute, or NCI. We retain global rights to develop and commercialize TRC102 in all indications.
TRC253 is a competitive inhibitor of the wild type androgen receptor as well as mutations in the ligand binding domain of the AR that mediate resistance to Xtandi and Erleada. We initiated a Phase 1/2 clinical trial of TRC253 in March 2017 and the recommended Phase 2 dose was established in July 2018, allowing dosing to commence in the Phase 2 portion of the Phase 1/2 trial, which is currently enrolling.
We have also collaborated with the NCI, which selected TRC105 and TRC102 for federal funding of clinical development, as well as Case Western Cancer Center, or Case Western, the University of Alabama – Birmingham, and Cedars-Sinai Medical Center. Under these collaborations, NCI sponsored or is sponsoring ten completed or ongoing clinical trials of TRC105 and TRC102, Case Western sponsored two clinical trials of TRC102, the University of Alabama – Birmingham is sponsoring one clinical trial of TRC105, and Cedars-Sinai Medical Center is sponsoring one clinical trial of TRC105. All TRC105 NCI sponsored trials have been completed.
Corporate
Information
We were incorporated in the state of Delaware in October 2004 as Lexington Pharmaceuticals, Inc. and we subsequently changed our name to TRACON Pharmaceuticals, Inc. in March 2005, at which time we relocated to San Diego, California. Our principal executive offices are located at 4350 La Jolla Village Drive, Suite 800, San Diego, California 92122, and our telephone number is (858) 550‑0780. Our corporate website is www.traconpharma.com. The information on, or that can be accessed through, our website is not part of this prospectus.
We
are
an
“emerging
growth
company,”
as
defined
in
the
Jumpstart
Our
Business
Startups
Act
of
2012.
We
will
cease
to
be
an
emerging
growth
company
on
the
date
that
is
the
earliest
of
(i)
the
last
day
of
the
fiscal
year
in
which
we
have
total
annual
gross
revenues
of
$1.07
billion
or
more;
(ii)
December
31,
2020;
(iii)
the
date
on
which
we
have
issued
more
than
$1.0
billion
in
non-convertible
debt
during
the
previous
three
years;
or
(iv)
the
last day of the fiscal year in
which
we
are
deemed
to
be
a
large
accelerated
filer
under
the
rules
of
the
SEC.
The
Securities
We
May
Offer
We
may
offer
shares
of
our
common
stock
and
preferred
stock,
and
warrants
to
purchase
any
of
such
securities,
up
to
a
total
aggregate
offering
price
of
$100,000,000
from
time
to
time
in
one
or
more
offerings
under
this
prospectus,
together
with
any
applicable
prospectus
supplement
and
any
related
free
writing
prospectus,
at
prices
and
on
terms
to
be
determined
by
market
conditions
at
the
time
of
the
relevant
offering.
This
prospectus
provides
you
with
a
general
description
of
the
securities
we
may
offer.
Each
time
we
offer
a
type
or
series
of
securities
under
this
prospectus,
we
will
provide
a
prospectus
supplement
that
will
describe
the
specific
amounts,
prices
and
other
important
terms
of
the
securities,
including,
to
the
extent
applicable:
|
•
|
designation
or
classification;
|
|
•
|
aggregate
offering
price;
|
|
•
|
rates
and
times
of
payment
of
dividends,
if
any;
|
|
•
|
redemption,
conversion,
exchange
or
sinking
fund
terms,
if
any;
|
|
•
|
conversion
or
exchange
prices
or
rates,
if
any,
and,
if
applicable,
any
provisions
for
changes
to
or
adjustments
in
the
conversion
or
exchange
prices
or
rates
and
in
the
securities
or
other
property
receivable
upon
conversion
or
exchange;
|
|
|
•
|
ranking,
if
applicable;
|
|
•
|
restrictive
covenants,
if
any;
|
|
•
|
voting
or
other
rights,
if
any;
and
|
|
•
|
important
United
States
federal
income
tax
considerations.
|
The
prospectus
supplement
and
any
related
free
writing
prospectus
that
we
may
authorize
to
be
provided
to
you
may
also
add,
update
or
change
information
contained
in
this
prospectus
or
in
documents
we
have
incorporated
by
reference.
However,
no
prospectus
supplement
or
free
writing
prospectus
will
offer
a
security
that
is
not
registered
and
described
in
this
prospectus
at
the
time
of
the
effectiveness
of
the
registration
statement
of
which
this
prospectus
is
a
part.
2
This
prospectus
may
not
be
used
to
consummate
a
sale
of
securities
unless
it
is
accompanied
by
a
prospectus
supplement.
We
may
sell
the
securities
directly
to
investors
or
through
underwriters,
dealers
or
agents.
We,
and
our
underwriters
or
agents,
reserve
the
right
to
accept
or
reject
all
or
part
of
any
proposed
purchase
of
securities.
If
we
do
offer
securities
through
underwriters
or
agents,
we
will
include
in
the
applicable
prospectus
supplement:
|
•
|
the
names
of
those
underwriters
or
agents;
|
|
•
|
applicable
fees,
discounts
and
commissions
to
be
paid
to
them;
|
|
•
|
details
regarding
options to purchase additional securities,
if
any;
and
|
|
•
|
the
estimated
net
proceeds
to
us.
|
Common
Stock
.
We
may
issue
shares
of
our
common
stock
from
time
to
time.
The
holders
of
our
common
stock
are
entitled
to
one
vote
for
each
share
held
of
record
on
all
matters
submitted
to
a
vote
of
stockholders
and
do
not
have
cumulative
voting
rights.
Subject
to
preferences
that
may
be
applicable
to
any
outstanding
shares
of
preferred
stock,
the
holders
of
our
common
stock
are
entitled
to
receive
ratably
such
dividends
as
may
be
declared
by
our
board
of
directors
out
of
legally
available
funds.
Upon
our
liquidation,
dissolution
or
winding
up,
holders
of
our
common
stock
are
entitled
to
share
ratably
in
all
assets
remaining
after
payment
of
liabilities
and
the
liquidation
preferences
of
any
then
outstanding
shares
of
preferred
stock.
Our
common
stock
does
not
carry
any
preemptive
rights
enabling
a
holder
to
subscribe
for,
or
receive
shares
of,
any
class
of
our
common
stock
or
any
other
securities
convertible
into
shares
of
any
class
of
our
common
stock,
or
any
redemption
rights.
Preferred
Stock
.
We
may
issue
shares
of
our
preferred
stock
from
time
to
time,
in
one
or
more
series.
Under
our
amended
and
restated
certificate
of
incorporation,
our
board
of
directors
has
the
authority,
without
further
action
by
the
stockholders
(unless
such
stockholder
action
is
required
by
applicable
law
or
the
rules
of
any
stock
exchange
or
market
on
which
our
securities
are
then
traded),
to
designate
up
to
10,000,000
shares
of
preferred
stock
in
one
or
more
series
and
to
determine
the
designations,
voting
powers,
preferences
and
rights
of
each
series
of
the
preferred
stock,
as
well
as
the
qualifications,
limitations
or
restrictions
thereof,
including
dividend
rights,
conversion
rights,
preemptive
rights,
terms
of
redemption
or
repurchase,
liquidation
preferences,
sinking
fund
terms
and
the
number
of
shares
constituting
any
series
or
the
designation
of
any
series,
any
or
all
of
which
may
be
greater
than
the
rights
of
the
common
stock.
Any
convertible
preferred
stock
we
may
issue
will
be
convertible
into
our
common
stock
or
our
other
securities.
Conversion
may
be
mandatory
or
at
the
holder’s
option
and
would
be
at
prescribed
conversion
rates.
If
we
sell
any
series
of
preferred
stock
under
this
prospectus,
we
will
fix
the
designations,
voting
powers,
preferences
and
rights
of
such
series
of
preferred
stock,
as
well
as
the
qualifications,
limitations
or
restrictions
thereof,
in
a
certificate
of
designation
relating
to
that
series.
We
will
file
as
an
exhibit
to
the
registration
statement
of
which
this
prospectus
is
a
part,
or
will
incorporate
by
reference
from
reports
that
we
file
with
the
SEC,
the
form
of
any
certificate
of
designation
that
describes
the
terms
of
the
series
of
preferred
stock
that
we
are
offering
before
the
issuance
of
the
related
series
of
preferred
stock.
We
urge
you
to
read
the
applicable
prospectus
supplement
(and
any
free
writing
prospectus
that
we
may
authorize
to
be
provided
to
you)
related
to
the
series
of
preferred
stock
being
offered,
as
well
as the
complete
certificate
of
designation
that
contains
the
terms
of
the
applicable
series
of
preferred
stock.
Warrants.
We
may
issue
warrants
for
the
purchase
of
common
stock
and/or
preferred
stock
in
one
or
more
series.
We
may
issue
warrants
independently
or
together
with
common
stock
and/or
preferred
stock
and
the
warrants
may
be
attached
to
or
separate
from
these
securities.
In
this
prospectus,
we
have
summarized
certain
general
features
of
the
warrants.
We
urge
you,
however,
to
read
the
applicable
prospectus
supplement
(and
any
free
writing
prospectus
that
we
may
authorize
to
be
provided
to
you)
related
to
the
particular
series
of
warrants
being
offered,
as
well
as
the
complete
warrant
agreements
and
warrant
certificates
that
contain
the
terms
of
the
warrants.
Forms
of
the
warrant
agreements
and
forms
of
warrant
certificates
containing
the
terms
of
the
warrants
being
offered
have
been
filed
as
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part,
and
supplemental
warrant
agreements
and
forms
of
warrant
certificates
will
be
filed
as
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part
or
will
be
incorporated
by
reference
from
reports
that
we
file
with
the
SEC.
We
will
evidence
each
series
of
warrants
by
warrant
certificates
that
we
will
issue.
Warrants
may
be
issued
under
an
applicable
warrant
agreement
that
we
enter
into
with
a
warrant
agent.
We
will
indicate
the
name
and
address
of
the
warrant
agent,
if
applicable,
in
the
prospectus
supplement
relating
to
the
particular
series
of
warrants
being
offered.
RISK
FACTORS
Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in our Annual Report on Form 10-K for the year ended December 31, 2018, as updated by our subsequent annual, quarterly and other reports and documents that are incorporated by reference into this prospectus, before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of your investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations.
3
SPECIAL
NOTE
REGARDING
FORWARD-LOOKING
STATEMENTS
This
prospectus,
each
prospectus
supplement
and
the
information
incorporated
by
reference
in
this
prospectus
and
each
prospectus
supplement
contain
forward-looking
statements
within
the
meaning
of
Section
27A
of
the
Securities
Act of 1933, as amended, or the Securities Act,
and
Section
21E
of
the
Securities
Exchange
Act of 1934, as amended, or the Exchange Act, that
involve
a
number
of
risks
and
uncertainties.
Although
our
forward-looking
statements
reflect
the
good
faith
judgment
of
our
management
,
these
statements
can
only
be
based
on
facts
and
factors
currently
known
by
us.
Consequently,
these
forward-looking
statements
are
inherently
subject
to
risks
and
uncertainties,
and
actual
results
and
outcomes
may
differ
materially
from
results
and
outcomes
discussed
in
the
forward-looking
statements.
Forward-looking
statements
can
be
identified
by
the
use
of
forward-looking
words
such
as
“believes,”
“expects,”
“hopes,”
“may,”
“will,”
“plan,”
“intends,”
“estimates,”
“could,”
“should,”
“would,”
“continue,”
“seeks,”
“pro
forma,”
or
“anticipates,”
or
other
similar
words (including
their
use
in
the
negative),
or
by
discussions
of
future
matters
such
as
the
development
of
new
products,
technology
enhancements,
possible
collaborations,
possible
changes
in
legislation
and
other
statements
that
are
not
historical.
These
statements
include
but
are
not
limited to
statements
under
the
captions
“Business,”
“Risk
Factors”
and
“Management’s
Discussion
and
Analysis
of
Financial
Condition
and
Results
of
Operations”
and
in
other
sections
incorporated
by
reference
from
our
Annual
Report
on
Form
10-K
and
Quarterly
Reports
on
Form
10-Q,
as
applicable,
as
well
as
our
other
filings
with
the
SEC.
You
should
be
aware
that
the
occurrence
of
any
of
the
events
discussed
under
the
heading
“Risk
Factors”
in
any
applicable
prospectus
supplement
and
any
documents
incorporated
by
reference
herein
or
therein
could
substantially
harm
our
business,
operating
results
and
financial
condition
and
that
if
any
of
these
events
occurs,
it
could
adversely
affect
the
value
of
an
investment
in
our
securities.
The
cautionary
statements
made
in
this
prospectus
are
intended
to
be
applicable
to
all
related
forward-looking
statements
wherever
they
may
appear
in
this
prospectus
or
in
any
prospectus
supplement
or
any
documents
incorporated
by
reference
herein
or
therein.
We
urge
you
not
to
place
undue
reliance
on
these
forward-looking
statements,
which
speak
only
as
of
the
date
they
are
made.
Except
as
required
by
law,
we
assume
no
obligation
to
update
our
forward-looking
statements,
even
if
new
information
becomes
available
in
the
future.
USE
OF
PROCEEDS
We
will
retain
broad
discretion
over
the
use
of
the
net
proceeds
from
the
sale
of
the
securities
offered
hereby.
Unless
otherwise
indicated
in
any
prospectus
supplement,
we
intend
to
use
the
net
proceeds
from
the
sale
of
the
securities
under
this
prospectus
for
general
corporate
purposes,
which
may
include
clinical
trial
and
other
research
and
development
expenses,
expenses
in
connection
with
pre-commercial
and
commercial
activities,
capital
expenditures,
working
capital
and
general
and
administrative
expenses,
repayment of outstanding debt,
and
potential
acquisitions
of
or
investments
in
businesses,
products
and
technologies
that
complement
our
business,
although
we
have
no
present
commitments
or
agreements
to
make
any
such
acquisitions
or
investments.
We
will
set
forth
in
the
applicable
prospectus
supplement
or
free
writing
prospectus
our
intended
use
for
the
net
proceeds
received
from
the
sale
of
any
securities
sold
pursuant
to
the
prospectus
supplement
or
free
writing
prospectus.
Pending
these
uses,
we
intend
to
invest
the
net
proceeds
in
short-
and
intermediate-term,
interest-bearing
obligations,
investment-grade
instruments,
certificates
of
deposit
or
direct
or
guaranteed
obligations
of
the
U.S.
government.
DESCRIPTION
OF
CAPITAL
STOCK
As
of
the
date
of
this
prospectus,
our
amended
and
restated
certificate
of
incorporation
authorizes
us
to
issue
2
00,000,000
shares
of
common
stock,
par
value
$0.001
per
share,
and
10,000,000
shares
of
preferred
stock,
par
value
$0.001
per
share.
As
of
February 6
, 2019
,
there
were
29,898,698
shares
of
our
common
stock
outstanding
and
no
shares
of
our
preferred
stock
outstanding.
The
following
summary
description
of
our
capital
stock
is
based
on
the
provisions
of
our
amended
and
restated
certificate
of incorporation,
as
well
as
our
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,
amended
and
restated
bylaws
and
the
Delaware
General
Corporation
Law.
For
information
on
how
to
obtain
copies
of
our
amended
and
restated
certificate
of
incorporation
and
amended
and
restated
bylaws,
which
are
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part,
see
“Where
You
Can
Find
More
Information.”
Common
Stock
Each
holder
of
common
stock
is
entitled
to
one
vote
for
each
share
of
common
stock
held
on
all
matters
submitted
to
a
vote
of
the
stockholders,
including
the
election
of
directors.
Our
amended
and
restated
certificate
of
incorporation
and
amended and restated
bylaws
do
not
provide
for
cumulative
voting
rights.
Other
than
as
described
below,
holders
of
our
common
stock
have
no
preemptive,
conversion
or
subscription
rights,
and
there
are
no
redemption
or
sinking
fund
provisions
applicable
to
the
common
stock.
The
rights,
preferences
and
privileges
of
the
holders
of
common
stock
are
subject
to,
and
may
be
adversely
affected
by,
the
rights
of
the
holders
of
shares
of
any
series
of
our
preferred
stock
that
are
outstanding
or
that
we
may
designate
and
issue
in
the
future.
All
of
our
outstanding
shares
of
common
stock
are
fully
paid
and
nonassessable.
4
Preferred
Stock
Pursuant
to
our
amended
and
restated
certificate
of
incorporation
our
board
of
directors
has
the
authority,
without
further
action
by
the
stockholders
(unless
such
stockholder
action
is
required
by
applicable
law
or
stock
exchange
listing
rules),
to
designate
and
issue
up
to
10,000,000
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
designations,
powers,
preferences,
privileges
and
relative
participating,
optional
or
special
rights
and
the
qualifications,
limitations
or
restrictions
thereof,
including
dividend
rights,
conversion
rights,
voting
rights,
terms
of
redemption
and
liquidation
preferences,
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.
The
preferred
shares
may
have
voting
or
conversion
rights
that
could
have
the
effect
of
restricting
dividends
on
our
shares
of
common
stock,
diluting
the
voting
power
of
our
shares
of
common
stock,
impairing
the
rights
of
our
shares
of
common
stock
in
the
event
of
our
dissolution,
liquidation
or
winding-up
or
otherwise
adversely
affect
the
rights
of
holders
of
our
shares
of
common
stock.
The
issuance
of
preferred
shares,
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
of
control
and
may
adversely
affect
the
market
price
of
our
shares
of
common
stock
and
may
preclude
stockholders
from
realizing
a
potential
premium
over
the
market
value
of
their
shares.
Our
board
of
directors
will
fix
the
designations,
voting
powers,
preferences
and
rights
of
the
each
series,
as
well
as
the
qualifications,
limitations
or
restrictions
thereof,
of
the
preferred
stock
of
each
series
that
we
offer
under
this
prospectus
and
applicable
prospectus
supplements
in
the
certificate
of
designation
relating
to
that
series.
We
will
file
as
an
exhibit
to
the
registration
statement
of
which
this
prospectus
is
a
part,
or
will
incorporate
by
reference
from
reports
that
we
file
with
the
SEC,
the
form
of
any
certificate
of
designation
that
describes
the
terms
of
the
series
of
preferred
stock
we
are
offering.
This
description
will
include:
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the
title
and
stated
value;
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|
the
number
of
shares
we
are
offering;
|
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•
|
the
liquidation
preference
per
share;
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•
|
the
purchase
price
per
share;
|
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•
|
the
dividend
rate
per
share,
dividend
period
and
payment
dates
and
method
of
calculation
for
dividends;
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whether
dividends
will
be
cumulative
or
non-cumulative
and,
if
cumulative,
the
date
from
which
dividends
will
accumulate;
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•
|
our
right,
if
any,
to
defer
payment
of
dividends
and
the
maximum
length
of
any
such
deferral
period;
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|
the
procedures
for
any
auction
and
remarketing,
if
any;
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•
|
the
provisions
for
a
sinking
fund,
if
any;
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•
|
the
provisions
for
redemption
or
repurchase,
if
applicable,
and
any
restrictions
on
our
ability
to
exercise
those
redemption
and
repurchase
rights;
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|
any
listing
of
the
preferred
stock
on
any
securities
exchange
or
market;
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|
whether
the
preferred
stock
will
be
convertible
into
our
common
stock
or
other
securities
of
ours,
including
depositary
shares
and
warrants,
and,
if
applicable,
the
conversion
period,
the
conversion
price,
or
how
it
will
be
calculated,
and
under
what
circumstances
it
may
be
adjusted;
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|
whether
the
preferred
stock
will
be
exchangeable
into
debt
securities,
and,
if
applicable,
the
exchange
period,
the
exchange
price,
or
how
it
will
be
calculated,
and
under
what
circumstances
it
may
be
adjusted;
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|
voting
rights,
if
any,
of
the
preferred
stock;
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|
preemption
rights,
if
any;
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|
restrictions
on
transfer,
sale
or
other
assignment,
if
any;
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|
whether
interests
in
the
preferred
stock
will
be
represented
by
depositary
shares;
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|
a
discussion
of
any
material
or
special
United
States
federal
income
tax
considerations
applicable
to
the
preferred
stock;
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|
the
relative
ranking
and
preferences
of
the
preferred
stock
as
to
dividend
rights
and
rights
if
we
liquidate,
dissolve
or
wind
up
our
affairs;
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|
any
limitations
on
issuances
of
any
class
or
series
of
preferred
stock
ranking
senior
to
or
on
a
parity
with
the
series
of
preferred
stock
being
issued
as
to
dividend
rights
and
rights
if
we
liquidate,
dissolve
or
wind
up
our
affairs;
and
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|
any
other
specific
terms,
rights,
preferences,
privileges,
qualifications
or
restrictions
of
the
preferred
stock.
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The
General
Corporation
Law
of
the
State
of
Delaware,
the
state
of
our
incorporation,
provides
that
the
holders
of
preferred
stock
will
have
the
right
to
vote
separately
as
a
class
(or,
in
some
cases,
as
a
series)
on
an
amendment
to
our
amended
and
restated
certificate
of
incorporation
if
the
amendment
would
change
the
par
value
or,
unless
the
amended
and
restated
certificate
of
incorporation
provided
otherwise,
the
number
of
authorized
5
shares
of
the
class
or
change
the
powers,
preferences
or
special
rights
of
the
class
or
series
so
as
to
adversely
affect
the
class
or
series,
as
the
case
may
be.
This
right
is
in
addition
to
any
voting
rights
that
may
be
provided
for
in
the
applicable
certificate
of
designation.
Anti-takeover
Effects
of
Provisions
of
Delaware
Law
and
Charter
Documents
Delaware Anti-Takeover Law
We are subject to Section 203 of the Delaware General Corporation Law, 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:
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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;
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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
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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.
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Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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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;
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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
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|
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.
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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.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Provisions of our amended and restated certificate of incorporation and amended and restated bylaws may delay or discourage transactions involving an actual or potential change in our 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 securities. Among other things, our amended and restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to 10,000,000 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 our control);
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provide that the authorized number of directors may be changed only by resolution adopted by a majority of the board of directors;
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|
provide that the board of directors or any individual director may only be removed with cause and the affirmative vote of the holders of at least 66
2
/
3
% of the voting power of all of our then outstanding common stock;
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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;
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divide our board of directors into three classes;
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require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by written consent;
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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;
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|
do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election, if they should so choose);
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provide that special meetings of our stockholders may be called only by the chairman of the board, our Chief Executive Officer or by the 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); and
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provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (1) any derivative action or proceeding brought on our behalf, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to us or our stockholders, (3) any action asserting a claim against the us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws, or (4) any action asserting a claim against us governed by the internal affairs doctrine.
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The amendment of any of these provisions, with the exception of the ability of our board of directors to issue shares of preferred stock and designate any rights, preferences and privileges thereto, would require the affirmative vote of the holders of at least 66
2
/
3
% of the voting power of all of our then outstanding common stock.
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.
The
transfer
agent
for
any
series
of
preferred
stock
that
we
may
offer
under
this
prospectus
will
be
named
and
described
in
the
prospectus
supplement
for
that
series.
Listing
on
the
Nasdaq
Global
Market
Our
common
stock
is
listed
on
the
Nasdaq
Global
Market
under
the
symbol
“TCON.”
DESCRIPTION
OF
WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock or preferred stock and may be issued in one or more series. Warrants may be issued independently or together with common stock or preferred stock offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
have
filed
forms
of
the
warrant
agreements
as
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part.
We
will
file
as
exhibits
to
the
registration
statement
of
which
this
prospectus
is
a
part,
or
will
incorporate
by
reference
from
reports
that
we
file
with
the
SEC,
the
form
of
warrant
agreement,
if
any,
including
a
form
of
warrant
certificate,
that
describes
the
terms
of
the
particular
series
of
warrants
we
are
offering.
The
following
summaries
of
material
provisions
of
the
warrants
and
the
warrant
agreements
are
subject
to,
and
qualified
in
their
entirety
by
reference
to,
all
the
provisions
of
the
warrant
agreement
and
warrant
certificate
applicable
to
the
particular
series
of
warrants
that
we
may
offer
under
this
prospectus.
We
urge
you
to
read
the
applicable
prospectus
supplements
related
to
the
particular
series
of
warrants
that
we
may
offer
under
this
prospectus,
as
well
as
any
related
free
writing
prospectuses,
and
the
complete
warrant
agreements
and
warrant
certificates
that
contain
the
terms
of
the
warrants.
General
We
will
describe
in
the
applicable
prospectus
supplement
the
terms
relating
to
a
series
of
warrants
being
offered,
including:
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•
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the
title
of
such
securities;
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•
|
the
offering
price
or
prices
and
aggregate
number
of
warrants
offered;
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•
|
the
currency
or
currencies
for
which
the
warrants
may
be
purchased;
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•
|
if
applicable,
the
designation
and
terms
of
the
securities
with
which
the
warrants
are
issued
and
the
number
of
warrants
issued
with
each
such
security;
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|
if
applicable,
the
date
on
and
after
which
the
warrants
and
the
related
securities
will
be
separately
transferable;
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7
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|
if
applicable,
the
minimum
or
maximum
amount
of
such
warrants
which
may
be
exercised
at
any
one
time;
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|
in
the
case
of
warrants
to
purchase
common
stock
or
preferred
stock,
the
number
of
shares
of
common
stock
or
preferred
stock,
as
the
case
may
be,
purchasable
upon
the
exercise
of
one
warrant
and
the
price
at
which,
and
the
currency
in
which,
these
shares
may
be
purchased
upon
such
exercise;
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|
the
effect
of
any
merger,
consolidation,
sale
or
other
disposition
of
our
business
on
the
warrant
agreements
and
the
warrants;
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|
the
terms
of
any
rights
to
redeem
or
call
the
warrants;
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•
|
the
terms
of
any
rights
to
force
the
exercise
of
the
warrants;
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|
any
provisions
for
changes
to
or
adjustments
in
the
exercise
price
or
number
of
securities
issuable
upon
exercise
of
the
warrants;
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|
the
dates
on
which
the
right
to
exercise
the
warrants
will
commence
and
expire;
|
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|
the
manner
in
which
the
warrant
agreements
and
warrants
may
be
modified;
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|
a
discussion
of
any
material
or
special
United
States
federal
income
tax
consequences
of
holding
or
exercising
the
warrants;
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|
the
terms
of
the
securities
issuable
upon
exercise
of
the
warrants;
and
|
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|
any
other
specific
terms,
preferences,
rights
or
limitations
of
or
restrictions
on
the
warrants.
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Before
exercising
their
warrants,
holders
of
warrants
will
not
have
any
of
the
rights
of
holders
of
the
securities
purchasable
upon
such
exercise,
including
the
right
to
receive
dividends,
if
any,
or,
payments
upon
our
liquidation,
dissolution
or
winding
up
or
to
exercise
voting
rights,
if
any.
Exercise
of
Warrants
Each
warrant
will
entitle
the
holder
to
purchase
the
securities
that
we
specify
in
the
applicable
prospectus
supplement
at
the
exercise
price
that
we
describe
in
the
applicable
prospectus
supplement.
Unless
we
otherwise
specify
in
the
applicable
prospectus
supplement,
holders
of
the
warrants
may
exercise
the
warrants
at
any
time
up
to
the
specified
time
on
the
expiration
date
that
we
set
forth
in
the
applicable
prospectus
supplement.
After
the
close
of
business
on
the
expiration
date,
unexercised
warrants
will
become
void.
Unless
we
otherwise
specify
in
the
applicable
prospectus
supplement,
holders
of
the
warrants
may
exercise
the
warrants
by
delivering
the
warrant
certificate
representing
the
warrants
to
be
exercised
together
with
specified
information,
and
paying
the
required
amount
to
the
warrant
agent
in
immediately
available
funds,
as
provided
in
the
applicable
prospectus
supplement.
We
will
set
forth
on
the
reverse
side
of
the
warrant
certificate
and
in
the
applicable
prospectus
supplement
the
information
that
the
holder
of
the
warrant
will
be
required
to
deliver
to
the
warrant
agent
in
connection
with
the
exercise
of
the
warrant.
Upon
receipt
of
the
required
payment
and
the
warrant
certificate
properly
completed
and
duly
executed
at
the
corporate
trust
office
of
the
warrant
agent
or
any
other
office
indicated
in
the
applicable
prospectus
supplement,
we
will
issue
and
deliver
the
securities
purchasable
upon
such
exercise.
If
fewer
than
all
of
the
warrants
represented
by
the
warrant
certificate
are
exercised,
then
we
will
issue
a
new
warrant
certificate
for
the
remaining
amount
of
warrants.
If
we
so
indicate
in
the
applicable
prospectus
supplement,
holders
of
the
warrants
may
surrender
securities
as
all
or
part
of
the
exercise
price
for
warrants.
Governing
Law
Unless
we
provide
otherwise
in
the
applicable
prospectus
supplement,
the
warrants
and
warrant
agreements,
and
any
claim,
controversy
or
dispute
arising
under
or
related
to
the
warrants
or
warrant
agreements,
will
be
governed
by
and
construed
in
accordance
with
the
laws
of
the
State
of
New
York.
Enforceability
of
Rights
by
Holders
of
Warrants
Each
warrant
agent
will
act
solely
as
our
agent
under
the
applicable
warrant
agreement
and
will
not
assume
any
obligation
or
relationship
of
agency
or
trust
with
any
holder
of
any
warrant.
A
single
bank
or
trust
company
may
act
as
warrant
agent
for
more
than
one
issue
of
warrants.
A
warrant
agent
will
have
no
duty
or
responsibility
in
case
of
any
default
by
us
under
the
applicable
warrant
agreement
or
warrant,
including
any
duty
or
responsibility
to
initiate
any
proceedings
at
law
or
otherwise,
or
to
make
any
demand
upon
us.
Any
holder
of
a
warrant
may,
without
the
consent
of
the
related
warrant
agent
or
the
holder
of
any
other
warrant,
enforce
by
appropriate
legal
action
its
right
to
exercise,
and receive
the
securities
purchasable
upon
exercise
of,
its
warrants.
Outstanding Warrants to Purchase Common Stock
As of December 31, 2018, there were warrants to purchase 15,619,113 shares of common stock outstanding, which expire between May 2022 and May 2025. Each of these warrants entitles the holder to purchase one share of common stock at prices ranging between $0.01 and $10.86 per
8
share of
common stock. Each of these warrants has a net exercise provision under which its holder may, in lieu of payment of the exercise price in cash, surrender the warrant and receive a net amount of shares based on the fair market value of our shares of common stock at the time of exercise of the warrant after deduction of the aggregate exercise price. Each of these warrants also contains provisions for the adjustment of the exercise price and the aggregate number of shares issuable upon the exercise of the warrant in the event of dividends, stock splits, reorganizations and reclassifications and consolidations. Certain of these warrants may be subject to an acceleration of their expiration dates if certain conditions are met.
LEGAL
OWNERSHIP
OF
SECURITIES
We
can
issue
securities
in
registered
form
or
in
the
form
of
one
or
more
global
securities.
We
describe
global
securities
in
greater
detail
below.
We
refer
to
those
persons
who
have
securities
registered
in
their
own
names
on
the
books
that
we
or
any
applicable
trustee
or
depositary
maintain
for
this
purpose
as
the
“holders”
of
those
securities.
These
persons
are
the
legal
holders
of
the
securities.
We
refer
to
those
persons
who,
indirectly
through
others,
own
beneficial
interests
in
securities
that
are
not
registered
in
their
own
names,
as
“indirect
holders”
of
those
securities.
As
we
discuss
below,
indirect
holders
are
not
legal
holders,
and
investors
in
securities
issued
in
book-entry
form
or
in
street
name
will
be
indirect
holders.
Book-Entry
Holders
We
may
issue
securities
in
book-entry
form
only,
as
we
will
specify
in
the
applicable
prospectus
supplement.
This
means
securities
may
be
represented
by
one
or
more
global
securities
registered
in
the
name
of
a
financial
institution
that
holds
them
as
depositary
on
behalf
of
other
financial
institutions
that
participate
in
the
depositary’s
book-entry
system.
These
participating
institutions,
which
are
referred
to
as
participants,
in
turn,
hold
beneficial
interests
in
the
securities
on
behalf
of
themselves
or
their
customers.
Only
the
person
in
whose
name
a
security
is
registered
is
recognized
as
the
holder
of
that
security.
Global
securities
will
be
registered
in
the
name
of
the
depositary
or
its
participants.
Consequently,
for
global
securities,
we
will
recognize
only
the
depositary
as
the
holder
of
the
securities,
and
we
will
make
all
payments
on
the
securities
to
the
depositary.
The
depositary
passes
along
the
payments
it
receives
to
its
participants,
which
in
turn
pass
the
payments
along
to
their
customers
who
are
the
beneficial
owners.
The
depositary
and
its
participants
do
so
under
agreements
they
have
made
with
one
another
or
with
their
customers;
they
are
not
obligated
to
do
so
under
the
terms
of
the
securities.
As
a
result,
investors
in
a
global
security
will
not
own
securities
directly.
Instead,
they
will
own
beneficial
interests
in
a
global
security,
through
a
bank,
broker
or
other
financial
institution
that
participates
in
the
depositary’s
book-entry
system
or
holds
an
interest
through
a
participant.
As
long
as
the
securities
are
issued
in
global
form,
investors
will
be
indirect
holders,
and
not
legal
holders,
of
the
securities.
Street
Name
Holders
A
global
security
may
be
terminated
in
certain
situations
as
described
under
“—Special
Situations
When
A
Global
Security
Will
Be
Terminated,”
or
issue
securities
that
are
not
issued
in
global
form.
In
these
cases,
investors
may
choose
to
hold
their
securities
in
their
own
names
or
in
“street
name.”
Securities
held
by
an
investor
in
street
name
would
be
registered
in
the
name
of
a
bank,
broker
or
other
financial
institution
that
the
investor
chooses,
and
the
investor
would
hold
only
a
beneficial
interest
in
those
securities
through
an
account
he
or
she
maintains
at
that
institution.
For
securities
held
in
street
name,
we
or
any
applicable
trustee
or
depositary
will
recognize
only
the
intermediary
banks,
brokers
and
other
financial
institutions
in
whose
names
the
securities
are
registered
as
the
holders
of
those
securities,
and
we
or
any
such
trustee
or
depositary
will
make
all
payments
on
those
securities
to
them.
These
institutions
pass
along
the
payments
they
receive
to
their
customers
who
are
the
beneficial
owners,
but
only
because
they
agree
to
do
so
in
their
customer
agreements
or
because
they
are
legally
required
to
do
so. Investors
who
hold
securities
in
street
name
will
be
indirect
holders,
not
holders,
of
those
securities.
Legal
Holders
Our
obligations,
as
well
as
the
obligations
of
any
applicable
trustee
or
third
party
employed
by
us
or
a
trustee,
run
only
to
the
legal
holders
of
the
securities.
We
do
not
have
obligations
to
investors
who
hold
beneficial
interests
in
global
securities,
in
street
name
or
by
any
other
indirect
means.
This
will
be
the
case
whether
an
investor
chooses
to
be
an
indirect
holder
of
a
security
or
has
no
choice
because
we
are
issuing
the
securities
only
in
global
form.
For
example,
once
we
make
a
payment
or
give
a
notice
to
the
legal
holder,
we
have
no
further
responsibility
for
the
payment
or
notice
even
if
that
legal
holder
is
required,
under
agreements
with
its
participants
or
customers
or
by
law,
to
pass
it
along
to
the
indirect
holders
but
does
not
do
so.
Similarly,
we
may
want
to
obtain
the
approval
of
the
holders
to
amend
an
indenture,
to
relieve
us
of
the
consequences
of
a
default
or
of
our
obligation
to
comply
with
a
particular
provision
of
an
indenture,
or
for
other
purposes.
In
such
an
event,
we
would
seek
approval
only
from
the
legal
holders,
and
not
the
indirect
holders,
of
the
securities.
Whether
and
how
the
legal
holders
contact
the
indirect
holders
is
up
to
the
legal
holders.
9
Special
Considerations
for
Indirect
Holders
If
you
hold
securities
through
a
bank,
broker
or
other
financial
institution,
either
in
book-entry
form
because
the
securities
are
represented
by
one
or
more
global
securities
or
in
street
name,
you
should
check
with
your
own
institution
to
find
out:
|
•
|
how
it
handles
securities
payments
and
notices;
|
|
•
|
whether
it
imposes
fees
or
charges;
|
|
•
|
how
it
would
handle
a
request
for
the
holders’
consent,
if
ever
required;
|
|
•
|
whether
and
how
you
can
instruct
it
to
send
you
securities
registered
in
your
own
name
so
you
can
be
a
holder,
if
that
is
permitted
in
the
future;
|
|
•
|
how
it
would
exercise
rights
under
the
securities
if
there
were
a
default
or
other
event
triggering
the
need
for
holders
to
act
to
protect
their
interests;
and
|
|
•
|
if
the
securities
are
in
book-entry
form,
how
the
depositary’s
rules
and
procedures
will
affect
these
matters.
|
Global
Securities
A
global
security
is
a
security
that
represents
one
or
any
other
number
of
individual
securities
held
by
a
depositary.
Generally,
all
securities
represented
by
the
same
global
securities
will
have
the
same
terms.
Each
security
issued
in
book-entry
form
will
be
represented
by
a
global
security
that
we
issue
to,
deposit
with
and
register
in
the
name
of
a
financial
institution
or
its
nominee
that
we
select.
The
financial
institution
that
we
select
for
this
purpose
is
called
the
depositary.
Unless
we
specify
otherwise
in
the
applicable
prospectus
supplement,
The
Depository
Trust
Company,
New
York,
New
York,
known
as
DTC,
will
be
the
depositary
for
all
securities
issued
in
book-entry
form.
A
global
security
may
not
be
transferred
to
or
registered
in
the
name
of
anyone
other
than
the
depositary,
its
nominee
or
a
successor
depositary,
unless
special
termination
situations
arise.
We
describe
those
situations
below
under
“Special
Situations
When
A
Global
Security
Will
Be
Terminated.”
As
a
result
of
these
arrangements,
the
depositary,
or
its
nominee,
will
be
the
sole
registered
owner
and
legal
holder
of
all
securities
represented
by
a
global
security,
and
investors
will
be
permitted
to
own
only
beneficial
interests
in
a
global
security.
Beneficial
interests
must
be
held
by
means
of
an
account
with
a
broker,
bank
or
other
financial
institution
that
in
turn
has
an
account
with
the
depositary
or
with
another
institution
that
does.
Thus,
an
investor
whose
security
is
represented
by
a
global
security
will
not
be
a
legal
holder
of
the
security,
but
only
an
indirect
holder
of
a
beneficial
interest
in
the
global
security.
If
the
prospectus
supplement
for
a
particular
security
indicates
that
the
security
will
be
issued
as
a
global
security,
then
the
security
will
be
represented
by
a
global
security
at
all
times
unless
and
until
the
global
security
is
terminated.
If
termination
occurs,
we
may
issue
the
securities
through
another
book-entry
clearing
system
or
decide
that
the
securities
may
no
longer
be
held
through
any
book-entry
clearing
system.
Special
Considerations
for
Global
Securities
As
an
indirect
holder,
an
investor’s
rights
relating
to
a
global
security
will
be
governed
by
the
account
rules
of
the
investor’s
financial
institution
and
of
the
depositary,
as
well
as
general
laws
relating
to
securities
transfers.
We
do
not
recognize
an
indirect
holder
as
a
holder
of
securities
and
instead
deal
only
with
the
depositary
that
holds
the
global
security.
If
securities
are
issued
only
as
global
securities,
an
investor
should
be
aware
of
the
following:
|
•
|
an
investor
cannot
cause
the
securities
to
be
registered
in
his
or
her
name,
and
cannot
obtain
non-global
certificates
for
his
or
her
interest
in
the
securities,
except
in
the
special
situations
we
describe
below;
|
|
•
|
an
investor
will
be
an
indirect
holder
and
must
look
to
his
or
her
own
bank
or
broker
for
payments
on
the
securities
and
protection
of
his
or
her
legal
rights
relating
to
the
securities,
as
we
describe
above;
|
|
•
|
an
investor
may
not
be
able
to
sell
interests
in
the
securities
to
some
insurance
companies
and
to
other
institutions
that
are
required
by
law
to
own
their
securities
in
non-book-entry
form;
|
|
•
|
an
investor
may
not
be
able
to
pledge
his
or
her
interest
in
the
global
security
in
circumstances
where
certificates
representing
the
securities
must
be
delivered
to
the
lender
or
other
beneficiary
of
the
pledge
in
order
for
the
pledge
to
be
effective;
|
|
•
|
the
depositary’s
policies,
which
may
change
from
time
to
time,
will
govern
payments,
transfers,
exchanges
and
other
matters
relating
to
an
investor’s
interest
in
the
global
security;
|
|
•
|
we
and
any
applicable
trustee
have
no
responsibility
for
any
aspect
of
the
depositary’s
actions
or
for
its
records
of
ownership
interests
in
the
global
security,
nor
will
we
or
any
applicable
trustee
supervise
the
depositary
in
any
way;
|
10
|
•
|
the
depositary
may,
and
we
understand
that
DTC
will,
require
that
those
who
purchase
and
sell
interests
in
the
global
security
within
its
book-entry
system
use
immediately
available
funds,
and
your
broker
or
bank
may
require
you
to
do
so
as
well;
and
|
|
•
|
financial
institutions
that
participate
in
the
depositary’s
book-entry
system,
and
through
which
an
investor
holds
its
interest
in
the
global
security,
may
also
have
their
own
policies
affecting
payments,
notices
and
other
matters
relating
to
the
securities.
|
There
may
be
more
than
one
financial
intermediary
in
the
chain
of
ownership
for
an
investor.
We
do
not
monitor
and
are
not
responsible
for
the
actions
of
any
of
those
intermediaries.
Special
Situations
When
a
Global
Security
Will
Be
Terminated
In
a
few
special
situations
described
below,
a
global
security
will
terminate
and
interests
in
it
will
be
exchanged
for
physical
certificates
representing
those
interests.
After
that
exchange,
the
choice
of
whether
to
hold
securities
directly
or
in
street
name
will
be
up
to
the
investor.
Investors
must
consult
their
own
banks
or
brokers
to
find
out
how
to
have
their
interests
in
securities
transferred
to
their
own
names,
so
that
they
will
be
direct
holders.
We
have
described
the
rights
of
holders
and
street
name
investors
above.
A
global
security
will
terminate
when
the
following
special
situations
occur:
|
•
|
if
the
depositary
notifies
us
that
it
is
unwilling,
unable
or
no
longer
qualified
to
continue
as
depositary
for
that
global
security
and
we
do
not
appoint
another
institution
to
act
as
depositary
within
90
days;
|
|
•
|
if
we
notify
any
applicable
trustee
that
we
wish
to
terminate
that
global
security;
or
|
|
•
|
if
an
event
of
default
has
occurred
with
regard
to
securities
represented
by
that
global
security
and
has
not
been
cured
or
waived.
|
The
applicable
prospectus
supplement
may
also
list
additional
situations
for
terminating
a
global
security
that
would
apply
only
to
the
particular
series
of
securities
covered
by
the
prospectus
supplement.
When
a
global
security
terminates,
the
depositary,
and
neither
we
nor
any
applicable
trustee,
is
responsible
for
deciding
the
names
of
the
institutions
that
will
be
the
initial
direct
holders.
PLAN
OF
DISTRIBUTION
We
may
sell
the
securities
from
time
to
time
pursuant
to
underwritten
public
offerings,
negotiated
transactions,
block
trades
or
a
combination
of
these
methods.
We
may
sell
the
securities
to
or
through
underwriters
or
dealers,
through
agents,
or
directly
to
one
or
more
purchasers.
We
may
distribute
securities
from
time
to
time
in
one
or
more
transactions:
|
•
|
at
a
fixed
price
or
prices,
which
may
be
changed;
|
|
•
|
at
market
prices
prevailing
at
the
time
of
sale;
|
|
•
|
at
prices
related
to
such
prevailing
market
prices;
or
|
We
may
also
sell
equity
securities
covered
by
this
registration
statement
in
an
“at
the
market
offering”
as
defined
in
Rule
415
under
the
Securities
Act.
Such
offering
may
be
made
into
an
existing
trading
market
for
such
securities
in
transactions
at
other
than
a
fixed
price,
either:
|
•
|
on
or
through
the
facilities
of
the
Nasdaq
Global
Market
or
any
other
securities
exchange
or
quotation
or
trading
service
on
which
such
securities
may
be
listed,
quoted
or
traded
at
the
time
of
sale;
and/or
|
|
•
|
to
or
through
a
market
maker
otherwise
than
on
the
Nasdaq
Global
Market
or
such
other
securities
exchanges
or
quotation
or
trading
services.
|
Such
at-the-market
offerings,
if
any,
may
be
conducted
by
underwriters
acting
as
principal
or
agent.
A
prospectus
supplement
or
supplements
(and
any
related
free
writing
prospectus
that
we
may
authorize
to
be
provided
to
you)
will
describe
the
terms
of
the
offering
of
the
securities,
including,
to
the
extent
applicable:
|
•
|
the
name
or
names
of
any
underwriters,
dealers
or
agents,
if
any;
|
|
•
|
the
purchase
price
of
the
securities
and
the
proceeds
we
will
receive
from
the
sale;
|
|
•
|
any
options
under
which
underwriters
may
purchase
additional
securities
from
us;
|
|
•
|
any
agency
fees
or
underwriting
discounts
and
other
items
constituting
agents’
or
underwriters’
compensation;
|
|
•
|
any
public
offering
price;
|
11
|
•
|
any
discounts
or
concessions
allowed
or
re-allowed
or
paid
to
dealers;
and
|
|
•
|
any
securities
exchange
or
market
on
which
the
securities
may
be
listed.
|
Only
underwriters
named
in
the
prospectus
supplement
are
underwriters
of
the
securities
offered
by
the
prospectus
supplement.
If
underwriters
are
used
in
the
sale,
they
will
acquire
the
securities
for
their
own
account
and
may
resell
the
securities
from
time
to
time
in
one
or
more
transactions
at
a
fixed
public
offering
price
or
at
varying
prices
determined
at
the
time
of
sale.
The
obligations
of
the
underwriters
to
purchase
the
securities
will
be
subject
to
the
conditions
set
forth
in
the
applicable
underwriting
agreement.
We
may
offer
the
securities
to
the
public
through
underwriting
syndicates
represented
by
managing
underwriters
or
by
underwriters
without
a
syndicate.
Subject
to
certain
conditions,
the
underwriters
will
be
obligated
to
purchase
all
of
the
securities
offered
by
the
prospectus
supplement.
Any
public
offering
price
and
any
discounts
or
concessions
allowed
or
re-allowed
or
paid
to
dealers
may
change
from
time
to
time.
We
may
use
underwriters
with
whom
we
have
a
material
relationship.
We
will
describe
in
the
prospectus
supplement,
naming
the
underwriter,
the
nature
of
any
such
relationship.
We
may
sell
securities
directly
or
through
agents
we
designate
from
time
to
time.
We
will
name
any
agent
involved
in
the
offering
and
sale
of
securities,
and
we
will
describe
any
commissions
we
will
pay
the
agent
in
the
prospectus
supplement.
Unless
the
prospectus
supplement
states
otherwise,
our
agent
will
act
on
a
best-efforts
basis
for
the
period
of
its
appointment.
We
may
authorize
agents
or
underwriters
to
solicit
offers
by
certain
types
of
institutional
investors
to
purchase
securities
from
us
at
the
public
offering
price
set
forth
in
the
prospectus
supplement
pursuant
to
delayed
delivery
contracts
providing
for
payment
and
delivery
on
a
specified
date
in
the
future.
We
will
describe
the
conditions
to
these
contracts
and
the
commissions
we
must
pay
for
solicitation
of
these
contracts
in
the
prospectus
supplement.
We
may
provide
agents
and
underwriters
with
indemnification
against
civil
liabilities
related
to
this
offering,
including
liabilities
under
the
Securities
Act,
or
contribution
with
respect
to
payments
that
the
agents
or
underwriters
may
make
with
respect
to
these
liabilities.
Agents
and
underwriters
may
engage
in
transactions
with,
or
perform
services
for,
us
in
the
ordinary
course
of
business.
All
securities
we
offer,
other
than
common
stock,
will
be
new
issues
of
securities
with
no
established
trading
market.
Any
underwriters
may
make
a
market
in
these
securities,
but
will
not
be
obligated
to
do
so
and
may
discontinue
any
market
making
at
any
time
without
notice.
We
cannot
guarantee
the
liquidity
of
the
trading
markets
for
any
securities.
Any
underwriter
may
engage
in
overallotment,
stabilizing
transactions,
short
covering
transactions
and
penalty
bids.
Overallotment
involves
sales
in
excess
of
the
offering
size,
which
create
a
short
position.
Stabilizing
transactions
permit
bids
to
purchase
the
underlying
security
so
long
as
the
stabilizing
bids
do
not
exceed
a
specified
maximum.
Short
covering
transactions
involve
purchases
of
the
securities
in
the
open
market
after
the
distribution
is
completed
to
cover
short
positions.
Penalty
bids
permit
the
underwriters
to
reclaim
a
selling
concession
from
a
dealer
when
the
securities
originally
sold
by
the
dealer
are
purchased
in
a
stabilizing
or
covering
transaction
to
cover
short
positions.
Those
activities
may
cause
the
price
of
the
securities
to
be
higher
than
it
would
otherwise
be.
If
commenced,
the
underwriters
may
discontinue
any
of
the
activities
at
any
time.
These
transactions
may
be
effected
on
any
exchange
or
over-the-counter
market
or
otherwise.
Any
underwriters
who
are
qualified
market
makers
on
the
Nasdaq
Global
Market
may
engage
in
passive
market
making
transactions
in
the
securities
on
the
Nasdaq
Global
Market
in
accordance
with
Rule
103
of
Regulation
M,
during
the
business
day
prior
to
the
pricing
of
the
offering,
before
the
commencement
of
offers
or
sales
of
the
securities.
Passive
market
makers
must
comply
with
applicable
volume
and
price
limitations
and
must
be
identified
as
passive
market
makers.
In
general,
a
passive
market
maker
must
display
its
bid
at
a
price
not
in
excess
of
the
highest
independent
bid
for
such
security;
if
all
independent
bids
are
lowered
below
the
passive
market
maker’s
bid,
however,
the
passive
market
maker’s
bid
must
then
be
lowered
when
certain
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.
LEGAL
MATTERS
Unless
otherwise
indicated
in
the
applicable
prospectus
supplement,
certain
legal
matters
in
connection
with
the
offering
and
the
validity
of
the
securities
offered
by
this
prospectus,
and
any
supplement
thereto,
will
be
passed
upon
by
Cooley
LLP,
San Diego, California.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2018, as set forth in their report (which contains an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial
12
statements) which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
WHERE
YOU
CAN
FIND
MORE
INFORMATION
This
prospectus
is
part
of
a
registration
statement
we
filed
with
the
SEC.
This
prospectus
does
not
contain
all
of
the
information
set
forth
in
the
registration
statement
and
the
exhibits
to
the
registration
statement.
For
further
information
with
respect
to
us
and
the
securities
we
are
offering
under
this
prospectus,
we
refer
you
to
the
registration
statement
and
the
exhibits
and
schedules
filed
as
a
part
of
the
registration
statement.
Neither
we
nor
any
agent,
underwriter
or
dealer
has
authorized
any
person
to
provide
you
with
different
information.
We
are
not
making
an
offer
of
these
securities
in
any
state
where
the
offer
is
not
permitted.
You
should
not
assume
that
the
information
in
this
prospectus
is
accurate
as
of
any
date
other
than
the
date
on
the
front
page
of
this
prospectus,
regardless
of
the
time
of
delivery
of
this
prospectus
or
any
sale
of
the
securities
offered
by
this
prospectus.
We
file
annual,
quarterly
and
current
reports,
proxy
statements
and
other
information
with
the
SEC.
The
SEC
maintains
a
website
that
contains
reports,
proxy
statements
and
other
information
regarding
issuers
that
file
electronically
with
the
SEC,
including
TRACON.
The
address
of
the
SEC
website
is
www.sec.gov.
We
maintain
a
website
at
www.traconpharma.com.
Information
contained
in
or
accessible
through
our
website
does
not
constitute
a
part
of
this
prospectus.
I
NCORPORATION
OF
CERTAIN
INFORMATION
BY
REFERENCE
The
SEC
allows
us
to
“incorporate
by
reference”
information
into
this
prospectus,
which
means
that
we
can
disclose
important
information
to
you
by
referring
you
to
another
document
filed
separately
with
the
SEC.
The
documents
incorporated
by
reference
into
this
prospectus
contain
important
information
that
you
should
read
about
us.
The
following
documents
are
incorporated
by
reference
into
this
prospectus:
|
•
|
our
Annual
Report
on
Form
10-K
for
the
fiscal
year
ended
December
31,
2018
and
filed
with
the
SEC
on
February 28,
2019; and
|
|
•
|
the
description
of
our
common
stock
which
is
registered
under
Section
12
of
the
Exchange
Act,
in
our
registration
statement
on
Form
8-A,
filed
with
the
SEC
on
January
27,
2015,
including
any
amendments
or
reports
filed
for
the
purpose
of
updating
such
description.
|
We
also
incorporate
by
reference
into
this
prospectus
all
documents
(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)
that
are
filed
by
us
with
the
SEC
pursuant
to
Sections
13(a),
13(c),
14
or
15(d)
of
the
Exchange
Act
(i)
after
the
date
of
the
initial
filing
of
the
registration
statement
of
which
this
prospectus
forms
a
part
and
prior
to
effectiveness
of
the
registration
statement,
and
(ii)
after
the
date
of
this
prospectus
but
prior
to
the
termination
of
the
offering.
These
documents
include, without limitation,
Annual
Reports
on
Form
10-K,
Quarterly
Reports
on
Form
10-Q,
Current
Reports
on
Form
8-K,
as
well
as
proxy
statements.
We
will
provide
to
each
person,
including
any
beneficial
owner,
to
whom
a
prospectus
is
delivered,
without
charge
upon
written
or
oral
request,
a
copy
of
any
or
all
of
the
documents
that
are
incorporated
by
reference
into
this
prospectus
but
not
delivered
with
the
prospectus,
including
exhibits
which
are
specifically
incorporated
by
reference
into
such
documents.
You
should
direct
any
requests
for
documents
by
writing
us
at
4350 La Jolla Village Drive, Suite 800, San Diego, California 92122
or
telephoning
us
at
(858)
550-0780.
Any
statement
contained
herein
or
in
a
document
incorporated
or
deemed
to
be
incorporated
by
reference
into
this
prospectus
will
be
deemed
to
be
modified
or
superseded
for
purposes
of
the
document
to
the
extent
that
a
statement
contained
in
this
prospectus
or
any
other
subsequently
filed
document
that
is
deemed
to
be
incorporated
by
reference
into
this
prospectus
modifies
or
supersedes
the
statement.
DISCLOSURE
OF
COMMISSION
POSITION
ON
INDEMNIFICATION
FOR
SECURITIES
ACT
LIABILITY
Insofar
as
indemnification
for
liabilities
arising
under
the
Securities
Act
may
be
permitted
to
directors,
officers
or
persons
controlling
the
registrant
pursuant
to
the
foregoing
provisions,
the
registrant
has
been
informed
that
in
the
opinion
of
the
SEC
such
indemnification
is
against
public
policy
as
expressed
in
the
Securities
Act
and
is,
therefore,
unenforceable.
13
The information in this 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 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.
SUBJECT TO COMPLETION, DATED FEBRUARY 28, 2019
Prospectus
$8,031,948
Common Stock
We have entered into a Capital on Demand
TM
Sales Agreement, as amended, or Sales Agreement, with JonesTrading Institutional Services LLC, or JonesTrading, relating to the shares of our common stock offered by this prospectus and the accompanying prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell through or to JonesTrading, as sales agent or principal, shares of our common stock from time to time having aggregate sales proceeds of up to $8,031,948.
Our common stock is traded on the Nasdaq Global Market under the symbol “TCON.” On February 6, 2019, the last reported sales price of our common stock was $1.12 per share and the aggregate market value of our outstanding common stock held by non-affiliates was approximately $24.1 million, based on 21,514,47 shares of our outstanding common stock held by non-affiliates. During the 12 calendar-month period that ends on, and includes, the date of this prospectus, we have not sold any shares of our common stock pursuant to General Instruction I.B.6 of Form S-3. As a result, we are currently eligible to offer and sell up to an aggregate of $8,031,948 of shares of our common stock pursuant to such instruction.
Sales of our common stock, if any, under this prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. JonesTrading will act as sales agent using commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between JonesTrading and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to JonesTrading for sales of common stock sold pursuant to the Sales Agreement will be an amount equal to 2.5% of the gross proceeds of any shares of common stock sold under the Sales Agreement. In connection with the sale of the common stock on our behalf, JonesTrading will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of JonesTrading will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to JonesTrading with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act.
Investing in our common stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” on page 4 of this prospectus, and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
JonesTrading
The date of this prospectus is , 2019.
TABLE OF CONTENTS
_____________________
i
ABOUT THIS PROSPECTUS
This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with the information incorporated by reference as described under the heading “Incorporation of Certain Information by Reference” in this prospectus. These documents contain important information that you should consider when making your investment decision.
This prospectus describes the specific terms of the common stock we are offering and also adds to, and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the Securities and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference into this prospectus— the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize for use in connection with this offering. We have not, and JonesTrading has not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and JonesTrading is not, making an offer to sell or soliciting an offer to buy our common stock in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
ii
PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in our common stock. For a more complete understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus, including the information incorporated by reference into this prospectus, and the information included in any free writing prospectus that we may authorize for use in connection with this offering, including the information referred to under the heading “Risk Factors” in this prospectus on page
4
and in the documents incorporated by reference into this prospectus.
TRACON Pharmaceuticals, Inc.
Overview
We are a biopharmaceutical company focused on the development and commercialization of novel targeted therapeutics for cancer and, through our license to Santen Pharmaceutical Co. Ltd., or Santen, wet age-related macular degeneration, or wet AMD. We are a leader in the field of endoglin biology and are using our expertise to develop antibodies that bind to the endoglin receptor. Endoglin is essential to angiogenesis, the process of new blood vessel formation required for solid cancer growth and wet AMD. We are developing our lead product candidate, TRC105 (carotuximab), an endoglin antibody, for the treatment of multiple solid tumor types in combination with inhibitors of the vascular endothelial growth factor, or VEGF, pathway, or in combination with inhibitors of the programmed cell death protein 1, or PD-1, pathway. The VEGF pathway regulates vascular development in the embryo, or vasculogenesis, and angiogenesis, while the PD-1 pathway represents an adaptive immune resistance mechanism that protects tumors from host immunity. We believe treatment with TRC105 in combination with VEGF inhibitors or PD-1 inhibitors may improve survival in cancer patients when compared to treatment with a VEGF inhibitor or PD-1 inhibitor alone. TRC105 has been studied in 13 completed Phase 2 clinical trials and four completed Phase 1 clinical trials, and is currently being dosed in one Phase 3 clinical trial, three Phase 2 clinical trials and one Phase 1 clinical trial. Our TRC105 oncology clinical development plan is broad and involves a tiered approach. We are initially focused on angiosarcoma which is a tumor that highly expresses endoglin, the target of TRC105, and therefore may be more responsive to treatment with TRC105. We have seen complete durable responses in this tumor type and are currently enrolling the international multicenter Phase 3 TAPPAS trial in angiosarcoma. We obtained Special Protocol Assessment agreement from the U.S. Food and Drug Administration, or FDA, on our clinical trial design for the Phase 3 trial in angiosarcoma and also incorporated scientific advice from the European Medicines Agency, or EMA, regarding the adequacy of the trial design. We also received orphan drug designation from the FDA and the EMA for TRC105 for the treatment of soft tissue sarcoma, including angiosarcoma, in 2016.
We utilize a product development platform that emphasizes capital efficiency. Our experienced clinical operations, data management, quality assurance, product development and regulatory affairs groups manage significant aspects of our clinical trials with internal resources. We use these internal resources to minimize the costs associated with utilizing contract research organizations, or CROs. In our experience, this model has resulted in capital efficiencies and improved communication with clinical trial sites, which expedites patient enrollment and allows direct access to patient data as compared to a CRO-managed model, and we have leveraged this capital efficient model in all of our ongoing clinical trials including our international Phase 3 TAPPAS trial in angiosarcoma. We have also leveraged our product development platform to diversify our product pipeline through a license agreement with Janssen Pharmaceutica N.V., or Janssen, as well as through our strategic collaboration agreements with I-Mab Biopharma, and continue to evaluate potential value creating business opportunities with other companies utilizing our product development platform. We continue to evaluate ex-U.S. companies who are in need of a rapid and capital-efficient U.S. drug development solution that includes U.S. and European Union clinical development expertise and U.S. commercialization expertise. We believe we can become a preferred clinical developmental and U.S. commercialization partner through a cost- and risk-sharing partnership structure which may include U.S. commercialization.
We have produced a formulation of TRC105 called DE-122 for ophthalmology indications, which is being developed by Santen for the treatment of wet AMD, the leading cause of blindness in the Western world. In March 2014, Santen licensed from us exclusive worldwide rights to develop and commercialize our endoglin antibodies for ophthalmology indications, and in July 2017 Santen initiated dosing in a randomized Phase 2 clinical trial of DE-122 in wet AMD.
1
Our other product candidates are TRC102, which is a small molecule that is in Phase 2 clinical development for the treatment of mesothelioma and glioblastoma, and TRC253, which is a small molecule in a Phase 1/2 clinical trial for the treatment of metastatic castration-resistant prostate cancer that we licensed from Janssen in September 2016.
TRC102 is a small molecule in clinical development to reverse resistance to specific chemotherapeutics by inhibiting base‑excision repair, or BER. In initial clinical trials of more than 100 patients, TRC102 has shown good tolerability and promising anti-tumor activity in combination with alkylating and antimetabolite chemotherapy in the treatment of lung cancer and glioblastoma TRC102 is being studied in a Phase 2 trial with Temodar in patients with ovarian, colorectal and lung cancer and with Alimta (pemetrexed) in patients with mesothelioma, in addition to two Phase 1 trials. All current TRC102 trials are sponsored and funded by the National Cancer Institute, or NCI. We retain global rights to develop and commercialize TRC102 in all indications.
TRC253 is a competitive inhibitor of the wild type androgen receptor as well as mutations in the ligand binding domain of the AR that mediate resistance to Xtandi and Erleada. We initiated a Phase 1/2 clinical trial of TRC253 in March 2017 and the recommended Phase 2 dose was established in July 2018, allowing dosing to commence in the Phase 2 portion of the Phase 1/2 trial, which is currently enrolling.
We have also collaborated with the NCI, which selected TRC105 and TRC102 for federal funding of clinical development, as well as Case Western Cancer Center, or Case Western, the University of Alabama – Birmingham, and Cedars-Sinai Medical Center. Under these collaborations, NCI sponsored or is sponsoring ten completed or ongoing clinical trials of TRC105 and TRC102, Case Western sponsored two clinical trials of TRC102, the University of Alabama – Birmingham is sponsoring one clinical trial of TRC105, and Cedars-Sinai Medical Center is sponsoring one clinical trial of TRC105. All TRC105 NCI sponsored trials have been completed.
Corporate
Information
We were incorporated in the state of Delaware in October 2004 as Lexington Pharmaceuticals, Inc. and we subsequently changed our name to TRACON Pharmaceuticals, Inc. in March 2005, at which time we relocated to San Diego, California. Our principal executive offices are located at 4350 La Jolla Village Drive, Suite 800, San Diego, California 92122, and our telephone number is (858) 550‑0780. Our corporate website is www.traconpharma.com. The information on, or that can be accessed through, our website is not part of this prospectus.
We
are
an
“emerging
growth
company,”
as
defined
in
the
Jumpstart
Our
Business
Startups
Act
of
2012.
We
will
cease
to
be
an
emerging
growth
company
on
the
date
that
is
the
earliest
of
(i)
the
last
day
of
the
fiscal
year
in
which
we
have
total
annual
gross
revenues
of
$1.07
billion
or
more;
(ii)
December
31,
2020;
(iii)
the
date
on
which
we
have
issued
more
than
$1.0
billion
in
non-convertible
debt
during
the
previous
three
years;
or
(iv)
the
last day of the fiscal year in
which
we
are
deemed
to
be
a
large
accelerated
filer
under
the
rules
of
the
SEC.
Unless
the
context
indicates
otherwise,
as
used
in
this
prospectus,
the
terms
“TRACON,”
“the
Company,”
“we,”
“us”
and
“our”
refer
to
TRACON Pharmaceuticals
,
Inc.,
a
Delaware
corporation.
This
prospectus
contains
references
to
our
trademarks
and
to
trademarks
and
to
trademarks
belonging
to
other
entities.
Solely
for
convenience,
trademarks
and
trade
names
referred
to
in
this
prospectus,
including
logos,
artwork
and
other
visual
displays,
may
appear
without
the
®
or
TM
symbols,
but
such
references
are
not
intended
to
indicate,
in
any
way,
that
their
respective
owners
will
not
assert,
to
the
fullest
extent
under
applicable
law,
their
rights
thereto.
We
do
not
intend
our
use
or
display
of
other
companies’
trade
names
or
trademarks
to
imply
a
relationship
with,
or
endorsement or
sponsorship
of
us
by,
any
other
companies.
2
The Offering
Common stock offered by us pursuant to this prospectus
|
Shares of common stock having an aggregate offering price of up to $
8,031,948.
|
Manner of offering
|
“At the market offering” that may be made from time to time through or to JonesTrading, as sales agent or principal. See “Plan of Distribution” on page 12 of this prospectus.
|
Use of proceeds
|
We intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including research and development expenses, general and administrative expenses and manufacturing expenses. See “Use of Proceeds” on page 6 of this prospectus.
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Nasdaq Global Market listing
|
TCON
|
Risk factors
|
Investing in our common stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” on page 4 of this prospectus and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus, together with the other information included in or incorporated by reference into this prospectus, before deciding whether to invest in our common stock.
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3
RISK FACTORS
Investing in our common stock involves a high degree of risk.
Before deciding whether to invest in our common stock, you should
carefully
review
the
risks
and
uncertainties
described
below and
under
the
heading
“Risk
Factors”
contained
any
free
writing
prospectus that we may authorize for use in connection with this offering,
and
under
similar
headings
in
our
Annual
Report
on
Form
10-K
for
the
year
ended
December
31, 2018,
as
updated
by
our
subsequent
annual,
quarterly
and
other
reports
and
documents
that
are
incorporated
by
reference
into
this
prospectus.
These risks
could
adversely
affect
our
business,
operating
results
and
financial
condition,
as
well
as
adversely
affect
the
value
of
an
investment
in
our
common stock,
and
the
occurrence
of
any
of
these
risks
might
cause
you
to
lose
all
or
part
of
your
investment.
Additional
risks
not
presently
known
to
us
or
that
we
currently
believe
are
immaterial
may
also
significantly
impair
our
business
operations.
Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds from this offering, and may not use the proceeds effectively.
Because we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have broad discretion as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You may experience immediate and substantial dilution.
The offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate of 7,171,382 shares of our common stock are sold at a price of $1.12 per share pursuant to this prospectus, which was the last reported sale price of our common stock on the Nasdaq Global Market on February 6, 2019, for aggregate gross proceeds of $8.0 million, after deducting commissions and estimated aggregate offering expenses payable by us, you would experience immediate dilution of $0.33 per share, representing the difference between our as adjusted net tangible book value per share as of December 31, 2018, after giving effect to this offering and the assumed offering price. The exercise of outstanding stock options and warrants or the settlement of outstanding restricted stock units may result in further dilution of your investment. See the section entitled “Dilution” below for a more detailed illustration of the dilution you would incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
We do not intend to pay dividends in the foreseeable future.
We have never paid cash dividends on our common stock and currently do not plan to pay any cash dividends in the foreseeable future.
4
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, the documents we have filed with the SEC that are incorporated by reference
and any free writing prospectus that we have authorized for use in connection with this offering
contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of 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 that 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:
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•
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the success, cost and timing of results of our and our collaborators’ ongoing clinical trials;
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•
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our and our collaborators’ plans to develop and commercialize our product candidates
|
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•
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the potential benefits of our collaboration arrangements and our ability to enter into additional collaboration arrangements;
|
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•
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our regulatory strategy and potential benefits associated therewith;
|
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•
|
the timing of, and our ability to, obtain and maintain regulatory approvals for our product candidates;
|
|
•
|
the rate and degree of market acceptance and clinical utility of any approved product candidate;
|
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•
|
the success of competing products that are or may become available;
|
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•
|
the size and growth potential of the markets for our product candidates, and our ability to serve those markets;
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•
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our commercialization, marketing and manufacturing capabilities and strategy;
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•
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our intellectual property position;
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•
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our estimates regarding expenses, future revenues, capital requirements, the sufficiency of our current and expected cash resources, and our need for additional financing;
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•
|
our ability to realize the anticipated benefits associated with our capital efficiency focused initiatives; and
|
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•
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our anticipated use of proceeds from this offering or other financing transactions.
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In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “predicts,” “potential” and similar expressions intended to identify forward-looking statements.
These statements reflect our current views with respect to future events, 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, and incorporate by reference into this prospectus in their entirety, many of these risks under the headings “Risk Factors” on page 4 of this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated herein by reference, as may be updated or superseded by the risks and uncertainties described under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement.
You should read this prospectus, the documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we have authorized 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.
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. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements.
5
USE OF PROCEEDS
Except as described in any free writing prospectus that we have authorized for use in connection with this offering, we currently intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including research and development expenses, general and administrative expenses and manufacturing expenses.
The amounts and timing of our use of the net proceeds from this offering will depend on a number of factors, such as the
timing and progress of our clinical trials and research and development efforts, the timing and progress of any partnering efforts, any strategic transactions in which we may engage, and the competitive environment for our product candidates
.
As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. Accordingly, our management will have broad discretion in the timing and application of these proceeds. Pending application of the net proceeds as described above, we intend to temporarily invest the proceeds in short-term, interest-bearing instruments
.
DIVIDEND POLICY
To date, we have paid no cash dividends to our stockholders, and we do not intend to pay cash dividends in the foreseeable future. Additionally, our credit agreement with Silicon Valley Bank contains covenants that restrict our ability to pay dividends.
DILUTION
If you invest in this offering, your ownership 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 after giving effect to this offering. We calculate net tangible book value per share by dividing our net tangible book value, which is tangible assets less total liabilities, by the number of outstanding shares of our common stock. Dilution represents the difference between the portion of the amount per share paid by purchasers of shares in this offering and the as adjusted net tangible book value per share of our common stock immediately after giving effect to this offering. Our net tangible book value as of December 31, 2018, was approximately $21.4 million, or $0.72 per share.
After giving effect to the sale of our common stock pursuant to this prospectus in the aggregate amount of $8.0 million at an assumed offering price of $1.12 per share, the last reported sale price of our common stock on the Nasdaq Global Market on February 6, 2019, and after deducting commissions and estimated aggregate offering expenses payable by us, our net tangible book value as of December 31, 2018 would have been $29.1 million, or $0.79 per share of common stock. This represents an immediate increase in the net tangible book value of $0.07 per share to our existing stockholders and an immediate dilution in net tangible book value of $0.33 per share to new investors. The following table illustrates this per share dilution:
Assumed offering price per share
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$ 1.12
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Net tangible book value per share as of December 31, 2018
|
$ 0.72
|
|
Increase per share attributable to new investors
|
0.07
|
|
As adjusted net tangible book value per share as of
December 31, 2018
, after giving effect to this offering
|
|
0.79
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Dilution per share to new investors purchasing shares in this offering
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$ 0.33
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The table above assumes for illustrative purposes that an aggregate of 7,171,382 shares of our common stock are sold pursuant to this prospectus at a price of $1.12 per share, the last reported sale price of our common stock on the Nasdaq Global Market on February 6, 2019, for aggregate gross proceeds of $8.0 million. The shares are being sold from time to time at various prices pursuant to the Sales Agreement with JonesTrading. An increase of $0.10 per share in the price at which the shares are sold from the assumed offering price of $1.12 per share shown in the table above, assuming all of our common stock in the aggregate amount of $8.0 million is sold during the term of the Sales Agreement with JonesTrading at that price, would result in an adjusted net tangible book value per share after the offering of $0.80 per share and would increase the dilution in net tangible book value per share to new investors in this offering to $0.42 per share, after deducting commissions and estimated aggregate offering expenses payable by
6
us. A decrease of $0.10 per share in the price at which the shares are sold from the assumed offering price of $1.12 per share shown in the table above, assuming all of our common stock in the aggregate amount of $8.0 million is sold during the term of the
S
ales
A
greement with JonesTrading at that price, would decrease our adjusted net tangible book value per share after the offering to $0.77 per share and would decrease the dilution in net tangible book value per share to new investors in this offering to $0.25 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
The above discussion and table are based on 29,871,327 shares of our common stock issued and outstanding as of December 31, 2018, and excludes the following:
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•
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2,915,188 shares of common stock issuable upon the exercise of outstanding stock options as of December 31, 2018, at a weighted-average exercise price of $5.28 per share;
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•
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92,616 shares of common stock issuable upon the settlement of outstanding restricted stock units as of December 31, 2018;
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•
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15,619,113 shares of common stock issuable upon the exercise of outstanding warrants as of December 31, 2018, at a weighted-average exercise price of $2.43 per share;
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•
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501,351 shares of common stock reserved for future issuance under our 2015 employee stock purchase plan as of December 31, 2018; and
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•
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814,753 shares of common stock reserved for future issuance under our 2015 equity incentive plan as of December 31, 2018.
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To the extent that options or warrants outstanding as of
December 31, 2018,
have been or are exercised, restricted stock units outstanding as of December 31, 2018 have been or are settled, or other shares are issued, investors purchasing shares in this offering could experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
7
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the rights of our common and preferred stock and some of the provisions of our amended and restated certificate of incorporation and amended and restated bylaws and of the Delaware General Corporation Law. This summary is not complete. For more detailed information, please see our amended and restated certificate of incorporation and amended and restated bylaws, which are filed as exhibits to the registration statement of which this prospectus is a part, as well as the relevant provisions of the Delaware General Corporation Law.
General
As
of
the
date
of
this
prospectus,
our
amended
and
restated
certificate
of
incorporation
authorizes
us
to
issue
2
00,000,000
shares
of
common
stock,
par
value
$0.001
per
share,
and
10,000,000
shares
of
preferred
stock,
par
value
$0.001
per
share.
Common Stock
Outstanding Shares
As
of
February 6, 2019
,
there
were
29,898,698
shares
of
our
common
stock
outstanding
and
no
shares
of
our
preferred
stock
outstanding.
Voting
Our common stock is entitled to one vote for each share held of record. Each holder of our common stock is entitled to notice of any stockholders’ meeting, is entitled to vote upon such matters and in such manner as may be provided by law, including the election of directors, and does not have cumulative voting rights.
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, on a pro rata basis, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation
In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any 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.
Fully Paid and Nonassessable
All of our outstanding shares of common stock are, and the shares of common stock to be issued in this offering will be, fully paid and nonassessable.
8
Preferred Stock
As of the date of this prospectus, we had no shares of preferred stock outstanding.
Under the amended and restated certificate of incorporation, our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 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. We have no current plans to issue any shares of preferred stock.
Equity Awards
As of February 6, 2019, 4,463,188 shares of common stock were issuable upon the exercise of outstanding stock options, at a weighted-average exercise price of $3.72 per share, and restricted stock units covering 46,311 shares of common stock were outstanding.
Outstanding Warrants
As of February 6, 2019, there were outstanding warrants to purchase up to an aggregate of 15,619,113 shares of common stock issued to certain investors and Silicon Valley Bank, in connection with financings and loan facilities we have entered into. Each warrant is exercisable for either seven or 10 years from its issuance date. The warrants have a weighted-average exercise price of $2.43 per share and provide for cashless exercise at the option of the warrantholder, as well as the adjustment of the exercise price and the number of shares issuable upon the exercise of the warrants in the event of stock dividends, stock splits, reclassifications, exchanges, combinations or substitutions.
Registration Rights
Certain holders of our common stock, or their transferees, may require us to register their common stock for resale under the Securities Act pursuant to certain agreements between us and these holders.
Anti-Takeover Effects of Provisions of Our Amended and Restated Certificate of Incorporation, Our Amended and Restated Bylaws and Delaware Law
Delaware Anti-Takeover Law
We are subject to Section 203 of the Delaware General Corporation Law, 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:
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•
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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;
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•
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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
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•
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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.
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Section 203 defines a business combination to include:
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•
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any merger or consolidation involving the corporation and the interested stockholder;
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•
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any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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•
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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;
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•
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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
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•
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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.
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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.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Provisions of our amended and restated certificate of incorporation and amended and restated bylaws may delay or discourage transactions involving an actual or potential change in our 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 amended and restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to 10,000,000 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 our control);
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•
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provide that the authorized number of directors may be changed only by resolution adopted by a majority of the board of directors;
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•
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provide that the board of directors or any individual director may only be removed with cause and the affirmative vote of the holders of at least 66
2
/
3
% of the voting power of all of our then outstanding common stock;
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•
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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;
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divide our board of directors into three classes;
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•
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require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by written consent;
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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;
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•
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do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election, if they should so choose);
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10
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•
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provide that special meetings of our stockholders may be called only by the chairman of the board, our Chief Executive Officer or by the 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); and
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provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (1) any derivative action or proceeding brought on our behalf, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to us or our stockholders, (3) any action asserting a claim against the us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws, or (4) any action asserting a claim against us governed by the internal affairs doctrine.
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The amendment of any of these provisions, with the exception of the ability of our board of directors to issue shares of preferred stock and designate any rights, preferences and privileges thereto, would require the affirmative vote of the holders of at least 66
2
/
3
% of the voting power of all of our then outstanding common stock.
Nasdaq Global Market Listing
Our common stock is listed on the Nasdaq Global Market under the symbol “TCON”.
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.
11
PLAN OF DISTRIBUTION
We have entered into a
Capital on Demand
TM
Sales Agreement, as amended, with JonesTrading under which we may issue and sell shares of our common stock having aggregate sales proceeds of up to $8,031,948 from time to time through or to JonesTrading acting as agent or principal. JonesTrading may sell the common stock by any method that is deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act.
Each time we wish to issue and sell common stock under the Sales Agreement, we will notify JonesTrading of the number of shares to be issued, the dates on which such sales are anticipated to be made and any minimum price below which sales may not be made. Once we have so instructed JonesTrading, unless JonesTrading declines to accept the terms of this notice, JonesTrading has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of JonesTrading under the Sales Agreement to sell our common stock are subject to a number of conditions that we must meet.
The settlement between us and JonesTrading is generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and JonesTrading may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay JonesTrading a commission equal to 2.5% of the gross proceeds we receive from the sales of our common stock. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In connection with the sale of the common stock on our behalf, JonesTrading will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of JonesTrading will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to JonesTrading with respect to certain civil liabilities, including liabilities under the Securities Act. We have also agreed to reimburse JonesTrading for certain expenses incurred in connection with the offering of our common stock pursuant to the Sales Agreement, up to a maximum of $40,000. We estimate that the total expenses for the offering, excluding compensation payable to JonesTrading under the terms of the Sales Agreement, will be approximately $350,000.
The offering of our common stock pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all of our common stock provided for in this prospectus or (ii) termination of the Sales Agreement as permitted therein.
This summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions. A copy of the sales agreement is filed with the SEC and is incorporated by reference into the registration statement of which this prospectus is a part. A copy of the Amendment No. 1 to Sales Agreement is filed as an exhibit hereto. See “Where You Can Find More Information”.
To the extent required by Regulation M, JonesTrading will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus.
12
LEGAL MATTERS
Cooley LLP, San Diego, California, has passed upon the validity of the common stock offered by this prospectus
. Duane Morris LLP, New York, New York, is counsel for JonesTrading in connection with this offering.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2018, as set forth in their report (which contains an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements) which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference in this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
We maintain a website at www.traconpharma.com.
Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus or part of any prospectus supplement
.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The
SEC
allows
us
to
“incorporate
by
reference”
information
into
this
prospectus,
which
means
that
we
can
disclose
important
information
to
you
by
referring
you
to
another
document
filed
separately
with
the
SEC.
The
documents
incorporated
by
reference
into
this
prospectus
contain
important
information
that
you
should
read
about
us.
The
following
documents
are
incorporated
by
reference
into
this
prospectus:
|
•
|
our
Annual
Report
on
Form
10-K
for
the
fiscal
year
ended
December
31,
2018
and
filed
with
the
SEC
on
February 28, 2019; and
|
|
•
|
the
description
of
our
common
stock
which
is
registered
under
Section
12
of
the
Exchange
Act,
in
our
registration
statement
on
Form
8-A,
filed
with
the
SEC
on
January
27,
2015,
including
any
amendments
or
reports
filed
for
the
purpose
of
updating
such
description.
|
We also incorporate by reference into this prospectus all documents (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) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, and (ii) after the date of this prospectus but prior to the termination of the offering. These documents include, without limitation, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, as well as proxy statements.
We
will
provide
to
each
person,
including
any
beneficial
owner,
to
whom
a
prospectus
is
delivered,
without
charge
upon
written
or
oral
request,
a
copy
of
any
or
all
of
the
documents
that
are
incorporated
by
reference
into
this
prospectus
but
not
delivered
with
the
prospectus,
including
exhibits
which
are
specifically
incorporated
by
reference
into
such
documents.
You
should
direct
any
requests
for
documents
by
writing
us
at
4350 La Jolla Village Drive, Suite 800, San Diego, California 92122
or
telephoning
us
at
(858)
550-0780.
Any
statement
contained
herein
or
in
a
document
incorporated
or
deemed
to
be
incorporated
by
reference
into
this
prospectus
will
be
deemed
to
be
modified
or
superseded
for
purposes
of
the
document
to
the
extent
that
a
statement
contained
in
this
prospectus
or
any
other
subsequently
filed
document
that
is
deemed
to
be
incorporated
by
reference
into
this
prospectus
modifies
or
supersedes
the
statement.
13
$8,031,948
Common Stock
___________________________
Prospectus
_________________________
JonesTrading
, 2019
Neither
we
nor
JonesTrading have
authorized
anyone to
provide information di
f
ferent from
that contained
in
this
prospectus.
Neither
the
delivery
of
this prospectus
nor
the
sale
of
our
common
stock
means
that
information
contained
in
this
prospectus
is
correct
after the
date
of this
prospectus.
This
prospectus
is not
an
o
f
fer
to sell
or solicitation
of an
o
f
fer
to buy
these
shares
of common
stock
in
any
circumstances
under
which
the
o
f
fer
or
solicitation
is
unlawful.
PART
II
INFORMATION
NOT
REQUIRED
IN
THE
PROSPECTUS
Item
14.
Other
Expenses
of
Issuance
and
Distribution
The
following
table
sets
forth
the
estimated
costs
and
expenses,
other
than
underwriting
discounts
and
commissions,
payable
by
us
in
connection
with
the
offering
of
the
securities
being
registered.
All
the
amounts
shown
are
estimates,
except
for
the
SEC
registration
fee.
|
|
SEC
registration
fee
|
$ 0
|
Accounting
fees
and
expenses
|
50,000
|
Legal
fees
and
expenses
|
50,000
|
Transfer
agent
fees
and
expenses
|
5,000
|
Printing
and
miscellaneous
expenses
|
45,000
|
Total
|
$150,000
|
Item
15.
Indemnification
of
Officers
and
Directors
We
are
incorporated
under
the
laws
of
the
State
of
Delaware.
Section
145
of
the
Delaware
General
Corporation
Law
provides
that
a
Delaware
corporation
may
indemnify
any
persons
who
were,
are,
or
are
threatened
to
be
made,
parties
to
any
threatened,
pending
or
completed
action,
suit
or
proceeding,
whether
civil,
criminal,
administrative
or
investigative
(other
than
an
action
by
or
in
the
right
of
such
corporation), by
reason
of
the
fact
that
such
person
is
or
was
an
officer,
director,
employee
or
agent
of
such
corporation,
or
is
or
was
serving
at
the
request
of
such
corporation
as
an
officer,
director,
employee
or
agent
of
another
corporation
or
enterprise.
The
indemnity
may
include
expenses
(including
attorneys’
fees),
judgments,
fines
and
amounts
paid
in
settlement
actually
and
reasonably
incurred
by
such
person
in
connection
with
such
action,
suit
or
proceeding,
provided
that
such
person
acted
in
good
faith
and
in
a
manner
he
or
she
reasonably
believed
to
be
in
or
not
opposed
to
the
corporation’s
best
interests
and,
with
respect
to
any
criminal
action
or
proceeding,
had
no
reasonable
cause
to
believe
that
his
or
her
conduct
was
illegal.
A
Delaware
corporation
may
indemnify
any
persons
who
were,
are,
or
are
threatened
to
be
made,
a
party
to
any
threatened,
pending
or
completed
action
or
suit
by
or
in
the
right
of
the
corporation
by
reason
of
the
fact
that
such
person
is
or
was
a
director,
officer,
employee
or
agent
of
such
corporation,
or
is
or
was
serving
at
the
request
of
such
corporation
as
a
director,
officer,
employee
or
agent
of
another
corporation
or
enterprise.
The
indemnity
may
include
expenses
(including
attorneys’
fees)
actually
and
reasonably
incurred
by
such
person
in
connection
with
the
defense
or
settlement
of
such
action
or
suit
provided
such
person
acted
in
good
faith
and
in
a
manner
he
or
she
reasonably
believed
to
be
in
or
not
opposed
to
the
corporation’s
best
interests
except
that
no
indemnification
is
permitted
without
judicial
approval
if
the
officer
or
director
is
adjudged
to
be
liable
to
the
corporation.
Where
an
officer
or
director
is
successful
on
the
merits
or otherwise
in
the
defense
of
any
action
referred
to
above,
the
corporation
must
indemnify
him
or
her
against
the
expenses
(including
attorneys’
fees)
actually
and
reasonably
incurred.
Our
amended
and
restated
certificate
of
incorporation
and
amended
and
restated
bylaws
provide
for
the
indemnification
of
our
directors
and
officers
to
the
fullest
extent
permitted
under
the
Delaware
General
Corporation
Law.
Section
102(b)(7)
of
the
Delaware
General
Corporation
Law
permits
a
corporation
to
provide
in
its
certificate
of
incorporation
that
a
director
of
the
corporation
shall
not
be
personally
liable
to
the
corporation
or
its
stockholders
for
monetary
damages
for
breach
of
fiduciary
duties
as
a
director,
except
for
liability
for
any:
|
•
|
transaction
from
which
the
director
derives
an
improper
personal
benefit;
|
|
•
|
act
or
omission
not
in
good
faith
or
that
involves
intentional
misconduct
or
a
knowing
violation
of
law;
|
|
•
|
unlawful
payment
of
dividends
or
redemption
of
shares;
or
|
|
•
|
breach
of
a
director’s
duty
of
loyalty
to
the
corporation
or
its
stockholders.
|
Our
amended
and
restated
certificate
of
incorporation
includes
such
a
provision.
Expenses
incurred
by
any
officer
or
director
in
defending
any
such
action,
suit
or
proceeding
in
advance
of
its
final
disposition
will
be
paid
by
us
upon
delivery
to
us
of
an
undertaking,
by
or
on
behalf
of
such
director
or
officer,
to
repay
all
amounts
so
advanced
if
it
shall
ultimately
be
determined
that
such
director
or
officer
is
not
entitled
to
be
indemnified
by
us.
Section
174
of
the
Delaware
General
Corporation
Law
provides,
among
other
things,
that
a
director
who
willfully
or
negligently
approves
of
an
unlawful
payment
of
dividends
or
an
unlawful
stock
purchase
or
redemption,
may
be
held
liable
for
such
actions.
A
director
who
was
either
absent
when
the
unlawful
actions
were
approved
or
dissented
at
the
time
may
avoid
liability
by
causing
his
or
her
dissent
to
such
actions
to
be
entered
in
the
books
containing
minutes
of
the
meetings
of
the
board
of
directors
at
the
time
such
action
occurred
or
immediately
after such
absent
director
receives
notice
of
the
unlawful
acts.
As
permitted
by
the
Delaware
General
Corporation
Law,
we
have
entered
into
, and continue to enter, into separate
indemnity
agreements
with
each
of
our
directors
and
executive
officers
that
require
us
to
indemnify
such
persons
against
any
and
all
costs
and
expenses
(including
attorneys’,
witness
or
other
professional
fees)
actually
and
reasonably
incurred
by
such
persons
in
connection
with
any
action,
suit
or
proceeding
(including
derivative
actions),
whether
actual
or
threatened,
to
which
any
such
person
may
be
made
a
party
by
reason
of
the
fact
that
such
person
is
or
was
a
II-1
director
or
officer
or
is
or
was
acting
or
serving
as
an
officer,
director,
employee
or
agent
of
ours
or
any
of
our
affiliated
enterprises.
Under
these
agreements,
we
are
not
required
to
provide
indemnification
for
certain
matters,
including:
|
•
|
indemnification
beyond
that
permitted
by
the
Delaware
General
Corporation
Law;
|
|
•
|
indemnification
for
any
proceeding
with
respect
to
the
unlawful
payment
of
remuneration
to
the
director
or
officer;
|
|
•
|
indemnification
for
certain
proceedings
involving
a
final
judgment
that
the
director
or
officer
is
required
to
disgorge
profits
from
the
purchase
or
sale
of
our
stock;
|
|
•
|
indemnification
for
proceedings
involving
a
final
judgment
that
the
director’s
or
officer’s
conduct
was
in
bad
faith,
knowingly
fraudulent
or
deliberately
dishonest
or
constituted
willful
misconduct
or
a
breach
of
his
or
her
duty
of
loyalty,
but
only
to
the
extent
of
such
specific
determination;
|
|
•
|
indemnification for proceedings or claims brought by an officer or director against us or any of our directors, officers, employees or agents, except for (1) claims to establish a right of indemnification or proceedings, (2) claims approved by our board of directors, (3) claims required by law, (4) when there has been a change of control as defined in the indemnification agreement with each director or officer, or (5) by us in our sole discretion pursuant to the powers vested to us under the Delaware General Corporate Law
;
|
|
•
|
indemnification
for
settlements
the
director
or
officer
enters
into
without
our
consent;
or
|
|
•
|
indemnification
in
violation
of
any
undertaking
required
by
the
Securities
Act
of
1933,
as
amended,
or
the
Securities
Act,
or
in
any
registration
statement
we
file.
|
The
indemnification
agreements
also
set
forth
certain
procedures
that
will
apply
in
the
event
of
a
claim
for
indemnification
thereunder.
There
is
at
present
no
pending
litigation
or
proceeding
involving
any
of
our
directors
or
executive
officers
as
to
which
indemnification
is
required
or
permitted,
and
we
are
not
currently
aware
of
any
threatened
litigation
or
proceeding
that
may
result
in
a
claim
for
indemnification.
We
have
an
insurance
policy
in
place
that
covers
our
officers
and
directors
with
respect
to
certain
liabilities,
including
liabilities
arising
under
the
Securities
Act
or
otherwise.
Any
underwriting
agreement
that
we
may
enter
into
may
provide
that
the
underwriters
are
obligated,
under
some
circumstances,
to
indemnify
our
directors,
officers
and
controlling
persons
against
specified
liabilities,
including
liabilities
under
the
Securities
Act.
Item
16.
Exhibits
and
Financial
Statement
Schedules
Exhibit
Number
|
Description of Document
|
1.1*
|
Form
of
Underwriting
Agreement
|
3.1(1)
|
Amended
and
Restated
Certificate
of
Incorporation
|
3.2(1)
|
Amended
and
Restated
Bylaws
|
4.1(2)
|
Amended and Restated Investors’ Rights Agreement by and among TRACON Pharmaceuticals, Inc. and certain of its stockholders dated September 19, 2014
|
4.2(3)
|
Investor Agreement by and between Johnson & Johnson Innovation-JJDC, Inc. and TRACON Pharmaceuticals, Inc., dated September 27, 2016
|
4.3(4)
|
Registration Rights Agreement, dated March 14, 2017 by and between TRACON Pharmaceuticals, Inc. and Aspire Capital Fund, LLC
|
4.4(4)
|
Common Stock Purchase Agreement, dated March 14, 2017 by and between TRACON Pharmaceuticals, Inc. and Aspire Capital Fund, LLC
|
4.5(5)
|
Securities Purchase Agreement, dated March 22, 2018, among TRACON Pharmaceuticals, Inc. and the purchasers listed on Exhibit A thereto
|
4.6(2)
|
Form
of
Common
Stock
Certificate
|
4.7
|
Form
of
Common
Stock
Warrant
Agreement
and
Warrant
Certificate
|
4.8
|
Form
of
Preferred
Stock
Warrant
Agreement
and
Warrant
Certificate
|
4.9*
|
Form
of
Specimen
Preferred
Stock
Certificate
and
Certificate
of
Designations
of
Preferred
Stock
|
5.1
|
Opinion of Cooley LLP
|
23.1
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
|
II-2
*
|
To
be
filed
by
amendment
or
by
a
report
filed
under
the
Securities
Exchange
Act
of
1934,
as
amended,
and
incorporated
herein
by
reference,
if
applicable.
|
(1)
|
Incorporated
by
reference
to
TRACON Pharmaceutical, Inc.’s
Current
Report
on
Form
8-K,
filed
with
the
SEC
on
February
4
,
2015.
|
(2)
|
Incorporated
by
reference
to TRACON Pharmaceutical, Inc.’s
Registration
Statement
on
Form
S-1
(File
No.
333-201280),
as
amended.
|
(3)
|
Incorporated by reference to TRACON Pharmaceutical, Inc.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, filed with the SEC on November 9, 2016.
|
(4)
|
Incorporated by reference to TRACON Pharmaceutical, Inc.’s Current Report on Form 8-K, filed with the SEC on March 14, 2017.
|
(5)
|
Incorporated by reference to TRACON Pharmaceutical, Inc.’s Current Report on Form 8-K, filed with the SEC on March 23, 2018.
|
Item
17.
Undertakings
The
undersigned
registrant
hereby
undertakes:
(1)
To
file,
during
any
period
in
which
offers
or
sales
are
being
made,
a
post-effective
amendment
to
this
registration
statement:
|
(i)
|
To
include
any
prospectus
required
by
Section
10(a)(3)
of
the
Securities
Act
of
1933;
|
|
(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
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;
|
provided,
however,
that
the
undertakings
set
forth
in
paragraphs
(1)(i),
(1)(ii)
and
(1)(iii)
above
do
not
apply
if
the
information
required
to
be
included
in
a
post-effective
amendment
by
those
paragraphs
is
contained
in
reports
filed
with
or
furnished
to
the
Commission
by
the
registrant
pursuant
to
Section
13
or
Section
15(d)
of
the
Securities
Exchange
Act
of
1934
that
are
incorporated
by
reference
in
this
registration
statement
or
is
contained
in
a
form
of
prospectus
filed
pursuant
to
Rule
424(b)
that
is
part
of
this
registration
statement.
(2)
That,
for
the
purpose
of
determining
any
liability
under
the
Securities
Act
of
1933,
each
such
post-effective
amendment
shall
be
deemed
to
be
a
new
registration
statement
relating
to
the
securities
offered
therein,
and
the
offering
of
such
securities
at
that
time
shall
be
deemed
to
be
the
initial
bona
fide
offering
thereof.
(3)
To
remove
from
registration
by
means
of
a
post-effective
amendment
any
of
the
securities
being
registered
which
remain
unsold
at
the
termination
of
the
offering.
(4)
That,
for
the
purpose
of
determining
liability
under
the
Securities
Act
of
1933
to
any
purchaser:
(i)
Each
prospectus
filed
by
the
registrant
pursuant
to
Rule
424(b)(3)
shall
be
deemed
to
be
part
of
the
registration
statement
as
of
the
date
the
filed
prospectus
was
deemed
part
of
and
included
in
the
registration
statement;
and
(ii)
Each
prospectus
required
to
be
filed
pursuant
to
Rule
424(b)(2),
(b)(5),
or
(b)(7)
as
part
of
a
registration
statement
in
reliance
on
Rule
430B
relating
to
an
offering
made
pursuant
to
Rule
415(a)(1)(i),
(vii),
or
(x)
for
the
purpose
of
providing
the
information
required
by
Section
10(a)
of
the
Securities
Act
of
1933
shall
be
deemed
to
be
part
of
and
included
in
the
registration
statement
as
of
the
earlier
of
the
date
such
form
of
prospectus
is
first
used
after
effectiveness
or
the
date
of
the
first
contract
of
sale
of
securities
in
the
offering
described
in
the
prospectus.
As
provided
in
Rule
430B,
for
liability
purposes
of
the
issuer
and
any
person
that
is
at
that
date
an
underwriter,
such
date
shall
be
deemed
to
be
a
new
effective
date
of
the
registration
statement
relating
to
the
securities
in
the
registration
statement
to
which
that
prospectus
relates,
and
the
offering
of
such
securities
at
that
time
shall
be
deemed
to
be
the
initial
bona
fide
offering
thereof.
Provided,
however
,
that
no
statement
made
in
a
registration
statement
or
prospectus
that
is
part
of
the
registration
statement
or
made
in
a
document
incorporated
or
deemed
incorporated
by
reference
into
the
registration
II-3
statement
or
prospectus
that
is
part
of
the
registration
statement
will,
as
to
a
purchaser
with
a
time
of
contract
of
sale
prior
to
such
effective
date,
supersede
or
modify
any
statement
that
was
made
in
the
registration
statement
or
prospectus
that
was
part
of
the
registration
statement
or
made
in
any
such
document
immediately
prior
to
such
effective
date.
(5)
That,
for
the
purpose
of
determining
liability
of
the
registrant
under
the
Securities
Act
of
1933
to
any
purchaser
in
the
initial
distribution
of
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
underwriting
method
used
to
sell
the
securities
to
the
purchaser,
if
the
securities
are
offered
or
sold
to
such
purchaser
by
means
of
any
of
the
following
communications,
the
undersigned
registrant
will
be
a
seller
to
the
purchaser
and
will
be
considered
to
offer
or
sell
such
securities
to
such
purchaser:
(i)
any
preliminary
prospectus
or
prospectus
of
the
undersigned
registrant
relating
to
the
offering
required
to
be
filed
pursuant
to
Rule
424;
(ii)
any
free
writing
prospectus
relating
to
the
offering
prepared
by
or
on
behalf
of
the
undersigned
registrant
or
used
or
referred
to
by
the
undersigned
registrant;
(iii)
the
portion
of
any
other
free
writing
prospectus
relating
to
the
offering
containing
material
information
about
the
undersigned
registrant
or
its
securities
provided
by
or
on
behalf
of
the
undersigned
registrant;
and
(iv)
any
other
communication
that
is
an
offer
in
the
offering
made
by
the
undersigned
registrant
to
the
purchaser.
(6)
That,
for
purposes
of
determining
any
liability
under
the
Securities
Act
of
1933,
each
filing
of
the
registrant’s
annual
report
pursuant
to
Section
13(a)
or
15(d)
of
the
Securities
Exchange
Act
of
1934
(and,
where
applicable,
each
filing
of
an
employee
benefit
plan’s
annual
report
pursuant
to
Section
15(d)
of
the
Securities
Exchange
Act
of
1934)
that
is
incorporated
by
reference
in
the
registration
statement
shall
be
deemed
to
be
a
new
registration
statement
relating
to
the
securities
offered
therein,
and
the
offering
of
such
securities
at
that
time
shall
be
deemed
to
be
the
initial
bona
fide
offering
thereof.
(7)
That
for
purposes
of
determining
any
liability
under
the
Securities
Act
of
1933,
(i)
the
information
omitted
from
the
form
of
prospectus
filed
as
part
of
the
registration
statement
in
reliance
upon
Rule
430A
and
contained
in
the
form
of
prospectus
filed
by
the
registrant
pursuant
to
Rule
424(b)(l)
or
(4)
or
497(h)
under
the
Securities
Act
shall
be
deemed
to
be
a
part
of
the
registration
statement
as
of
the
time
it
was
declared
effective;
and
(ii)
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
offing
of
such
securities
at
that
time
shall
be
deemed
to
be
the
initial
bona
fide
offering
thereof.
Insofar
as
indemnification
for
liabilities
arising
under
the
Securities
Act
of
1933
may
be
permitted
to
directors,
officers
and
controlling
persons
of
the
registrant
pursuant
to
the
foregoing
provisions,
or
otherwise,
the
registrant
has
been
advised
that
in
the
opinion
of
the Commission
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
of
1933
and
will
be
governed
by
the
final
adjudication
of
such
issue.
II-4
SIGNATURES
Pursuant
to
the
requirements
of
the
Securities
Act
of
1933,
the
registrant
certifies
that
it
has
reasonable
grounds
to
believe
that
it
meets
all
of
the
requirements
for
filing
on
Form
S-3
and
has
duly
caused
this
registration
statement
to
be
signed
on
its
behalf
by
the
undersigned,
thereunto
duly
authorized,
in
the
City
of
San Diego,
State
of
California,
on
the
28
th
day
of
February,
2019.
|
TRACON PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
/s/ Charles P. Theuer, M.D., Ph.D.
|
|
|
Charles P. Theuer, M.D., Ph.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
Charles P. Theuer, M.D., Ph.D.
and
Scott B. Brown
,
and
each
of
them,
as
his
or
her
true
and
lawful
attorneys-in-fact
and
agents, each
with
full
power
of
substitution
and
re-substitution,
for
him
or
her
and
in
his
or her
name,
place
or
stead,
in
any
and
all
capacities,
to
sign
any
and
all
amendments
(including
post-
effective
amendments
and
registration
statements
filed
pursuant
to
Rule
462
under
the
Securities
Act)
to
this
registration
statement,
and
to
file
the
same,
with
all
exhibits
thereto,
and
other
documents
in
connection
therewith,
with
the
Securities
and
Exchange
Commission,
granting
unto
said
attorneys-in-fact
and
agents,
and
each
of
them,
full
power
and
authority
to
do
and
perform
each
and
every
act
and
thing
requisite
and
necessary
to
be
done
in
connection
therewith,
as
fully
to
all
intents
and
purposes
as
he
or she
might
or
could
do
in
person,
hereby
ratifying
and
confirming
all
that
said
attorneys-in-fact
and
agents,
or
any
of
them,
or
their
or
his
substitutes
or
substitute,
may
lawfully
do
or
cause
to
be
done
by
virtue
hereof.
Pursuant
to
the
requirements
of
the
Securities
Act of 1933, as amended,
this
registration
statement
has
been
signed
by
the
following
persons
in
the
capacities
and
on
the
dates
indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Charles P. Theuer, M.D., Ph.D.
|
|
President, Chief Executive Officer and Member of the Board of Directors
|
|
February 28, 2019
|
Charles P. Theuer, M.D., Ph.D.
|
|
(Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/ William R. LaRue
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
William R. LaRue
|
|
|
|
|
|
|
|
|
|
/s/ Martin A. Mattingly, Pharm.D.
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
Martin A. Mattingly, Pharm.D.
|
|
|
|
|
|
|
|
|
|
/s/ J. Rainer Twiford, J.D., Ph.D.
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
J. Rainer Twiford, J.D., Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ Paul Walker
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
Paul Walker
|
|
|
|
|
|
|
|
|
|
/s/ Theodore Wang, Ph.D.
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
Theodore Wang, Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ Stephen T. Worland, Ph.D.
|
|
Member of the Board of Directors
|
|
February 28, 2019
|
Stephen T. Worland, Ph.D.
|
|
|
|
|
II-5
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