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TABLE OF CONTENTS
TABLE OF CONTENTS
Table of Contents
Filed Pursuant to Rule 424(b)(5)
Registration No. 333-231320
Calculation of Registration Fee
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Title of each class of securities
offered
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Maximum
amount to be
registered
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Amount of
registration fee
(1)
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Common Stock, par value $0.001 per share
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$100,000,000
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$12,120.00
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(1)
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Calculated
in accordance with Rule 457(r) under the Securities Act of 1933, as amended (the "Securities Act"). In accordance with
Rules 456(b) and 457(r) under the Securities Act, this "Calculation of Registration Fee" table shall be deemed to update the "Calculation of Registration Fee" table in the Registration
Statement on Form S-3 (Reg. No. 333-231320).
Table of Contents
PROSPECTUS SUPPLEMENT
(To Prospectus dated May 9, 2019)
Up to $100,000,000
Common Stock
We have entered into an Open Market Sale Agreement
SM
, or sales agreement, with Jefferies LLC, or Jefferies, relating to shares of our
common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an
aggregate offering price of up to $100,000,000 million from time to time through Jefferies, acting as our agent.
Our
common stock is listed on the Nasdaq Global Market under the symbol "
RARX
." On May 7, 2019, the last reported sale price of our common stock
on the Nasdaq Global Market was $21.44 per share.
Sales
of our common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales deemed to be an "at the market offering" as defined in Rule 415(a)(4)
promulgated under the Securities Act of 1933, as amended, or the Securities Act. Jefferies is not required to sell any specific amount of securities, but will act as our sales agent using commercially
reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Jefferies and us. There is no arrangement for funds to be received in any escrow, trust or
similar arrangement.
The
compensation to Jefferies for sales of common stock sold pursuant to the sales agreement will be an amount up to 3.0% of the gross proceeds of any shares of common stock sold under the sales
agreement. See "Plan of Distribution" for additional information regarding the compensation to be paid to Jefferies. In connection with the sale of the common stock on our behalf, Jefferies will be
deemed to be an "underwriter" within the meaning of the Securities Act and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have also agreed to provide
indemnification and contribution to Jefferies with respect to certain liabilities, including liabilities under the Securities Act.
We
are an "emerging growth company" as defined by the Jumpstart Our Business Startups Act of 2012 and, as such, we have elected to comply with certain reduced public company reporting requirements for
this prospectus supplement, the accompanying prospectus and future filings.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. PLEASE READ "RISK FACTORS" BEGINNING ON PAGE S-6 OF THIS PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS INCORPORATED
BY REFERENCE INTO THIS PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR COMMON STOCK.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement
or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Jefferies
May 9, 2019
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TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is the prospectus supplement, including the documents incorporated by reference, which describes the specific
terms of this offering. The second part, the accompanying prospectus, including the documents incorporated by reference, provides more general information. Generally, when we refer to this prospectus,
we are referring to both parts of this document combined. Before you invest, you should carefully read this prospectus supplement, the accompanying prospectus, all information incorporated by
reference herein and therein, as well as the additional information described under "Where You Can Find More Information; Incorporation by Reference" on page S-16 of this prospectus supplement.
These documents contain information you should consider when making your investment decision. This prospectus supplement may add, update or change information contained in the accompanying prospectus.
To the extent that any statement that we make in this prospectus supplement is inconsistent with statements made in the accompanying prospectus, the statements made in this prospectus supplement or
any documents incorporated by reference will be deemed to modify or supersede those made in the accompanying prospectus and such documents incorporated by reference.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus and in any free writing prospectus we may provide to you in
connection with this offering. Neither we nor Jefferies have authorized any other person to provide you with any information that is different. If anyone provides you with different or inconsistent
information, you should not rely on it. We are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The distribution of
this prospectus supplement and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus
supplement must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus supplement outside the United States. This
prospectus supplement does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement by any
person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
Unless
otherwise indicated, information contained in this prospectus supplement, the accompanying prospectus or the documents incorporated by reference, concerning our industry and the markets in
which we operate, including our general expectations and market position, market opportunity and market share, is based on information from our own management estimates and research, as well as from
industry and general publications and research, surveys and studies conducted by third parties. Management estimates are derived from publicly available information, our knowledge of our industry and
assumptions based on such information and knowledge, which we believe to be reasonable. In addition, assumptions and estimates of our and our industry's future performance are necessarily subject to a
high degree of uncertainty and risk due to a variety of factors, including those described in "Risk Factors" in this prospectus supplement, the accompanying prospectus, in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, which are incorporated by reference into
this prospectus supplement. These and other important factors could cause our future performance to differ materially from our assumptions and estimates. See "Special Note Regarding Forward-Looking
Statements."
When
we refer to "Ra Pharmaceuticals," "Ra Pharma," "we," "our," "us," the "Company" and "our company" in this prospectus supplement, we mean Ra Pharmaceuticals, Inc., unless otherwise
specified. When we refer to "you," we mean the holders of the applicable series of securities.
Ra
Pharmaceuticals, Inc. holds registered trademarks to the word marks Ra Pharmaceuticals and Ra Pharma, as well as to the Ra Pharma logo mark, each of which is used in this prospectus
supplement, the
S-1
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accompanying
prospectus and the documents incorporated by reference. This prospectus supplement, the accompanying prospectus and the documents incorporated by reference also include trademarks,
tradenames and service marks that are the property of other organizations. Solely for convenience, trademarks and tradenames referred to in this prospectus supplement appear without the ®
and ™ symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under
applicable law, our rights or that the applicable owner will not assert its rights, to these trademarks and tradenames.
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PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights selected information about us, this offering and information appearing elsewhere in this prospectus supplement,
in the accompanying prospectus and in the documents we incorporate by reference. This summary is not complete and does not contain all the information you should consider before investing in our
common stock pursuant to this prospectus supplement and the accompanying prospectus. Before making an investment decision, to fully understand this offering and its consequences to you, you should
carefully read this entire prospectus supplement and the accompanying prospectus, including "Risk Factors" beginning on page S-6 of this prospectus supplement, the financial statements and
related notes, and the other information that we incorporate by reference into this prospectus supplement, including the section "Risk Factors" in our Annual Report on Form 10-K for the fiscal
year ended December 31, 2018 and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019. As used in this prospectus supplement and the accompanying prospectus, the
terms "we," "our," "us," or "the Company" refer to Ra Pharmaceuticals, Inc., and its subsidiaries, taken as a whole, unless the context otherwise indicates.
Overview
We are a clinical-stage biopharmaceutical company using our proprietary peptide chemistry platform to create novel therapeutics to treat life-threatening
diseases that are caused by excessive or uncontrolled activation of the complement system, an essential component of the body's innate immune system. Our lead product candidate, zilucoplan, is being
developed as a convenient self-administered subcutaneous injection, which is an injection into the tissue under the skin, for the treatment of various complement-mediated diseases, including
generalized myasthenia gravis and other complement mediated disorders. Additionally, we are pursuing discovery and pre-clinical programs targeting selective inhibition of other uncontrolled complement
pathway factors to treat a variety of neurologic, renal, and inflammatory diseases. In addition to our focus on developing novel therapeutics to treat complement-mediated diseases, we have validated
our Extreme Diversity platform by successfully identifying and delivering orally-available cyclic peptides for a non-complement cardiovascular target with a large market opportunity in a collaboration
with Merck & Co., Inc.
Corporate Information
We were incorporated under the laws of the State of Delaware in June 2008. Our principal executive offices are located at 87 Cambridge Park Drive, Cambridge,
Massachusetts 02140, and our telephone number is (617) 401-4060. Our website address is
www.rapharma.com
. The information contained in, or
accessible through, our website should not be considered a part of this prospectus supplement.
Implications of Being an Emerging Growth Company
We qualify as an "emerging growth company" as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. As an emerging growth
company, we may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. These provisions
include:
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§
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only two years of audited financial statements in addition to any required unaudited
interim financial statements with correspondingly reduced "Management's Discussion and Analysis of Financial Condition and Results of Operations" disclosure;
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reduced disclosure about our executive compensation arrangements;
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no non-binding advisory votes on executive compensation or golden parachute arrangements;
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exemption from the auditor attestation requirement in the assessment of our internal
control over financial reporting; and
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an exemption from new or revised financial accounting standards until they would apply to
private companies and from compliance with any new requirements adopted by the Public Company Accounting Oversight Board requiring mandatory audit firm rotation.
We
may take advantage of these exemptions for up to five years or such earlier time that we are no longer an emerging growth company. We would 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, 2021; (iii) the date
on which we have issued more than $1 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the
rules of the Securities and Exchange Commission, or SEC. We may choose to take advantage of some but not all of these exemptions. We have irrevocably elected to "opt out" of the exemption for the
delayed adoption of certain accounting standards and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
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THE OFFERING
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Common stock offered by us
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Shares of our common stock having an aggregate offering price of up to $100 million.
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Common stock outstanding immediately after the offering
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Assuming all $100 million of our common stock is sold in this offering at an assumed offering price of $21.44 per share,
the last reported sale price of our common stock on the Nasdaq Global Market on May 7, 2019, we would have had 46,918,316 shares of common stock outstanding as of March 31, 2019.
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Plan of Distribution
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"At the market offering" that may be made from time to time through our sales agent, Jefferies. See "Plan of Distribution"
on page S-14.
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Use of Proceed
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We intend to use the net proceeds of this offering, if any, to fund our clinical and preclinical programs and for working
capital and general corporate purposes. Please see "Use of Proceeds" on page S-10.
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Risk Factors
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See "Risk Factors" beginning on page S-6 of this prospectus supplement and in the documents incorporated by reference
into this prospectus supplement, for a discussion of factors that you should read and consider before investing in our common stock.
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The Nasdaq Global Market symbol
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"RARX"
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The
number of shares of our common stock to be outstanding after this offering is based on 42,254,137 shares of our common stock outstanding as of March 31, 2019, and
excludes:
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§
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5,410,764 shares of common stock issuable upon the exercise of outstanding options under
our 2016 Stock Award and Incentive Plan, or the 2016 Plan, and under our 2010 Stock Award and Incentive Plan, or the 2010 Plan, with a weighted-average exercise price of $12.83 per share, as of
March 31, 2019;
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§
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212,869 shares of common stock issuable upon the vesting of outstanding restricted stock
units under our 2016 Plan, as of March 31, 2019;
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§
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70,875 shares of common stock issuable upon exercise of stock options granted after
March 31, 2019, at a weighted average exercise price of $21.66 per share;
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§
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966,317 shares of common stock available for future issuance under the 2016 Plan as of
March 31, 2019, as well as shares that become available pursuant to provisions in the 2016 Plan that automatically increase the share reserve under the 2016 Plan on January 1 of each
calendar year; and
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§
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920,401 shares of common stock available for future issuance under our 2016 Employee
Stock Purchase Plan, or the 2016 ESPP, as of March 31, 2019, as well as shares that become available pursuant to provisions in the 2016 ESPP that automatically increase the share reserve under
the 2016 ESPP on January 1 of each calendar year.
Except
as otherwise indicated, all information contained in this prospectus supplement assumes no exercise of any outstanding options.
S-5
Table of Contents
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before investing in our common stock, you should consider carefully the risks described below, together with the
other information contained in this prospectus supplement, the accompanying prospectus or incorporated by reference herein or therein, including the risks and uncertainties discussed under "Risk
Factors" in our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2018
and in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, which are incorporated by reference into this prospectus
supplement, any amendment or update thereto reflected in subsequent filings with the Securities and Exchange Commission, including in our Annual Reports on Form 10-K and Quarterly Reports on
Form 10-Q and all other information contained or incorporated by reference in this prospectus supplement, as updated by our subsequent
filings under the Exchange Act. If any of the risks incorporated by reference or set forth below occur, our business, financial condition, results of operations and future growth prospects could be
materially and adversely affected. In these circumstances, the market price of our common stock could decline, and you may lose all or part of your investment.
Risks Related to this Offering
If you purchase shares of our common stock sold in this offering, you will experience immediate and
substantial dilution in the net tangible book value of your shares. In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution to
you.
The price per share of our common stock being offered may be higher than the net tangible book value per share of our outstanding common stock prior to this
offering. Assuming that an aggregate of 4,664,179 shares of our common stock are sold at a public offering price of $21.44 per share, the last reported sale price of our common stock on the Nasdaq
Global Market on May 7, 2019, for aggregate gross proceeds of approximately $100.0 million, and after deducting estimated commissions and estimated offering expenses payable by us, new
investors in this offering will incur immediate and substantial dilution of approximately $15.31 per share, representing the difference between the assumed public offering price and our as adjusted
net tangible book value as of March 31, 2019. For a more detailed discussion of the foregoing, see the section entitled "Dilution" below. To the extent outstanding stock options are exercised,
there may be further dilution to new investors. In addition, to the extent we need to raise additional capital in the future and we issue additional shares of common stock or securities convertible
into or exchangeable for our common stock, our then existing stockholders may experience dilution and the new securities may have rights senior to those of our common stock offered in this offering.
A substantial number of shares of common stock may be sold in the market following this offering, which may
depress the market price for our common stock.
Sales of a substantial number of shares of our common stock in the public market following this offering could cause the market price of our common stock to
decline. A substantial majority of the outstanding shares of our common stock are, and the shares of common stock sold in this offering upon issuance will be, freely tradable without restriction or
further registration under the Securities Act of 1933, as amended.
We have broad discretion to determine how to use the funds raised in this offering, and may use them in ways
that may not enhance our operating results or the price of our common stock.
Our management will have broad discretion over the use of proceeds from this offering, and we could spend the proceeds from this offering in ways our
stockholders may not agree with or that do not yield a favorable return, if at all. We intend to use the net proceeds of this offering to fund our clinical and preclinical programs and for working
capital and general corporate purposes. However, our use of these proceeds may differ substantially from our current plans. If we do not invest or apply the proceeds of this offering in ways
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that
improve our operating results, we may fail to achieve expected financial results, which could cause our stock price to decline.
The actual number of shares we will issue under the sales agreement, at any one time or in total, is
uncertain.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to Jefferies at
any time throughout the term of the sales agreement. The number of shares that are sold by Jefferies after delivering a placement notice will fluctuate based on the market price of our common stock
during the sales period and limits we set with Jefferies. Because the price per share of each share sold will fluctuate based on the market price of our common stock during the sales period, it is not
possible at this stage to predict the number of shares that will be ultimately issued.
The common stock offered hereby will be sold in "at the market offerings," and investors who buy shares at
different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their
investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience
a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, and the filings with the Securities and Exchange Commission that are incorporated by reference into
this prospectus supplement and the accompanying prospectus contain or incorporate by reference "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995,
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. We have based these forward-looking statements largely on our
current expectations and projections about future events and financial trends affecting the financial condition of our business. Forward-looking statements should not be read as a guarantee of future
performance or results, and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved. Any forward-looking statements are qualified in
their entirety by reference to the factors discussed throughout this prospectus supplement and the accompanying prospectus, and in particular those factors set forth under the heading "Risk Factors."
Forward-looking
statements include all statements that are not historical facts. In some cases, you can identify forward-looking statements by terms such as "may," "might," "will," "objective,"
"intend," "should," "could," "can," "would," "expect," "believe," "anticipate," "project," "target," "design," "estimate," "predict," "potential," "plan" or the negative of these terms, and similar
expressions and comparable terminology intended to identify forward-looking statements. The forward-looking statements contained in this prospectus supplement, the accompanying prospectus, and the SEC
filings that are incorporated by reference into this prospectus supplement and the accompanying prospectus reflect our current views with respect to future events and are based on assumptions and
subject to risks and uncertainties and other important factors that could cause our actual results, performance or achievements to differ materially from those expressed or implied by the
forward-looking statements, including, but not limited to:
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the initiation, timing, progress and results of our research and development programs and
future preclinical and clinical studies;
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our ability to advance any product candidates into, and successfully complete, clinical
studies and obtain regulatory approval for them;
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our ability to identify additional product candidates using our Extreme
Diversity™ platform;
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the timing or likelihood of regulatory filings and approvals;
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our ability to commercialize, market and manufacture our product candidates, if approved;
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the pricing and reimbursement of our product candidates, if approved;
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the rate and degree of market acceptance and clinical utility of any products for which
we receive marketing approval;
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the implementation of our strategic plans for our business, product candidates and
technology;
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the scope of protection we are able to establish and maintain for intellectual property
rights covering our product candidates and technology;
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our expectations related to the use of proceeds from our public offering, and estimates
of our expenses, future revenues, capital requirements and our needs for additional financing;
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our ability to maintain and establish collaborations;
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our financial performance;
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developments relating to our competitors and our industry, including the impact of
government regulation;
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the intended use of proceeds from this offering; and
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other risks and uncertainties, including the important factors listed under the caption
"Risk Factors" in this prospectus supplement and the accompanying prospectus or any other documents incorporated by reference in this prospectus supplement and the accompanying prospectus.
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Given
these uncertainties, you should not place undue reliance on these forward-looking statements. These forward-looking statements represent our estimates and assumptions only as of the date on
which the statements were made and, except as required by law, we undertake no obligation to update or revise publicly any forward-looking-statements, whether as a result of new information, future
events or otherwise after the date of this prospectus supplement. We qualify all of our forward-looking statements by these cautionary statements.
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USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sales proceeds of up to $100 million from time to time. The amount of proceeds from
this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under or
fully utilize the sales agreement with Jefferies as a source of financing. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering
amount, commissions paid to Jefferies and proceeds to us, if any, are not determinable at this time. We intend to use the net proceeds we receive in this offering to fund our clinical and preclinical
programs and for working capital and general corporate purposes.
We
have not determined the amounts we plan to spend in any of the areas identified above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net
proceeds to us from this offering, and investors will be relying on the judgment of our management regarding the application of the proceeds from this offering. We reserve the right to change the use
of these proceeds as a result of certain contingencies such as competitive developments, the results of our commercialization efforts, acquisition and investment opportunities and other factors.
Pending use of the proceeds as described above, we intend to invest the net proceeds of this offering in short-term, interest-bearing, investment-grade securities or certificates of deposit.
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DIVIDEND POLICY
We have never declared or paid any cash dividends on our capital stock. We intend to retain future earnings, if any, to finance the operation and expansion of
our business and do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend policy will be made at the discretion of our board of directors
after considering our financial condition, results of operations, capital requirements, business prospects and other factors the board of directors deems relevant, and subject to the restrictions
contained in any future financing instruments.
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DILUTION
If you invest in our common stock in this offering, your ownership interest will be immediately diluted to the extent of the difference between the public
offering price per share and the as adjusted net tangible book value per share of our common stock after this offering.
As
of March 31, 2019, we had a net tangible book value of approximately $191.0 million, or $4.52 per share of common stock. Our net tangible book value per share represents total
tangible assets less total liabilities, divided by the number of shares of common stock outstanding at March 31, 2019.
After
giving effect to the issuance and sale by us of our common stock in the aggregate amount of $100 million at an assumed public offering price of $21.44 per share, the last reported sale
price of our common stock on the
Nasdaq Global Market on May 7, 2019, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2019 would
have been approximately $287.4 million, or approximately $6.13 per share. This amount represents an immediate increase in as adjusted net tangible book value of approximately $1.61 per share to
our existing stockholders and an immediate dilution in as adjusted net tangible book value of approximately $15.31 per share to new investors in this offering.
The
following table illustrates this calculation on a per share basis. The as adjusted information is illustrative only and will adjust based on the actual public offering price, the actual number of
shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this prospectus supplement. The as adjusted information assumes that all of our
common stock in the aggregate amount of $100 million is sold at the assumed public offering price of $21.44 per share, the last reported sale price of our common stock on the Nasdaq Global
Market on May 7, 2019. The shares sold in this offering, if any, will be sold from time to time at various prices.
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Assumed public offering price per share
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$
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21.44
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Net tangible book value per share as of March 31, 2019
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$
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4.52
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Increase in as adjusted net tangible book value per share attributable to this offering
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1.61
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As adjusted net tangible book value per share after this offering
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6.13
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Dilution per share to new investors participating in this offering
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$
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15.31
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The
above discussion and table are based on 42,254,137 shares of our common stock outstanding as of March 31, 2019, and
excludes:
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5,410,764 shares of common stock issuable upon the exercise of outstanding options under
our 2016 Stock Award and Incentive Plan, or the 2016 Plan, and under our 2010 Stock Award and Incentive Plan, or the 2010 Plan, with a weighted-average exercise price of $12.83 per share, as of
March 31, 2019;
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§
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212,869 shares of common stock issuable upon the vesting of outstanding restricted stock
units under our 2016 Plan, as of March 31, 2019;
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§
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70,875 shares of common stock issuable upon exercise of stock options granted after
March 31, 2019, at a weighted average exercise price of $21.66 per share;
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§
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966,317 shares of common stock available for future issuance under the 2016 Plan as of
March 31, 2019, as well as shares that become available pursuant to provisions in the 2016 Plan that automatically increase the share reserve under the 2016 Plan on January 1 of each
calendar year; and
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§
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920,401 shares of common stock available for future issuance under our 2016 Employee
Stock Purchase Plan, or the 2016 ESPP, as of March 31, 2019, as well as shares that become available pursuant to provisions in the 2016 ESPP that automatically increase the share reserve under
the 2016 ESPP on January 1 of each calendar year.
The
foregoing table does not give effect to the exercise of the outstanding options described above. To the extent options are exercised, there may be further dilution to new investors.
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PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies under which we may issue and sell shares of our common stock from time to time up to an aggregate sales
price of $100,000,000 through Jefferies. The sales agreement has been filed with the SEC as an exhibit to our Current Report on Form 8-K and incorporated by reference herein. Sales of our
common stock, if any, under this prospectus supplement will be made by any method that is deemed an "at the market offering" as defined in Rule 415(a)(4) under the Securities Act, including
sales made directly on or through The Nasdaq Global Market, or any other existing trading market for our common stock.
When
requested by us, Jefferies will offer the shares of common stock subject to the terms and conditions of the sales agreement, which may be on a daily basis for periods of time, or as we may
otherwise agree with Jefferies. We will designate the maximum amount of shares of common stock to be sold through Jefferies when we request Jefferies to do so. Jefferies has agreed, subject to the
terms and conditions of the sales agreement, to use its commercially reasonable efforts to execute our orders to sell, as our sales agent and on our behalf, shares of our common stock submitted to
Jefferies from time to time by us, consistent with its normal sales and trading practices. We may instruct Jefferies not to place shares of common stock at or below a price designated by us. We or
Jefferies may suspend the offering of shares of common stock under the sales agreement upon proper notice to the other party.
We
will pay Jefferies a commission of up to 3.0% of the gross proceeds of any shares sold through it pursuant to this prospectus supplement, and reimburse Jefferies for up to $50,000 of its expenses,
including fees and disbursements to its legal counsel. The estimated offering expenses payable by us, in addition to such commission and reimbursement of expenses, are approximately
$0.5 million, which includes legal, accounting and printing costs and various other fees associated with registering the shares of common stock. The remaining sale proceeds, after deducting any
other transaction fees, will equal our net proceeds from the sale of such shares.
Jefferies
will provide written confirmation to us before the open on The Nasdaq Global Market on the day following each day on which shares of common stock are sold under the sales agreement. Each
confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to the Company. Settlement for sales of common stock will occur, unless
otherwise agreed, on the second business day following the date on which such sales were made.
In
connection with the sale of our common stock on our behalf, Jefferies will be deemed to be an "underwriter" within the meaning of the Securities Act and the compensation of Jefferies will be deemed
to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain liabilities, including liabilities under the Securities Act. We have also agreed to contribute to
payments Jefferies may be required to make in respect of such liabilities.
The
offering of shares of common stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of common stock subject to the sales agreement and this
prospectus supplement and (ii) the termination of the sales agreement according to its terms by either Jefferies or us.
Jefferies
and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other services to us and our affiliates and may in the future receive
customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long
or short positions in such securities. As a sales agent, Jefferies will not engage in any transaction that stabilizes our common stock, to the extent prohibited by law.
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LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Latham & Watkins LLP. Jefferies LLC is being
represented in connection with this offering by Cooley LLP, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus supplement by reference from the Company's Annual Report on Form 10-K, have been
audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial
statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the Securities and Exchange Commission, or the SEC. The SEC maintains a web site that contains
reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is
www.sec.gov
.
Our
web site address is
www.rapharma.com
. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus
supplement.
This
prospectus supplement and the accompanying prospectus are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The
full registration statement may be obtained from the SEC or us, as provided below. Other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration
statement. Statements in this prospectus
supplement or the accompanying prospectus about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the
actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC's website, as provided above.
Incorporation by Reference
The SEC's rules allow us to "incorporate by reference" information into this prospectus supplement and the accompanying prospectus, which means that we can
disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus supplement
and the accompanying prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in a previously filed document
incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus supplement and the accompanying prospectus to the extent that a statement contained in this
prospectus supplement or the accompanying prospectus modifies or replaces that statement.
This
prospectus supplement incorporates by reference the documents set forth below that have previously been filed with the
SEC:
-
§
-
our Annual Report on Form 10-K for the year ended
December 31, 2018, filed with the SEC on March 7, 2019;
-
§
-
our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2019, filed with the SEC on May 9, 2019;
-
§
-
our Definitive Proxy Statement on Schedule 14A, as
amended, filed with the SEC on April 26, 2019;
-
§
-
our Current Report on Form 8-K filed with the SEC on
May 9, 2019; and
-
§
-
the description of our common stock contained in our
registration statement on Form 8-A filed with the SEC on October 21, 2016, including any amendments or reports filed for the purposes of updating this description.
We
incorporate by reference into this prospectus supplement and accompanying prospectus all reports and other documents we subsequently file with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, between the date of this prospectus supplement and the termination of the offering of the securities described in this prospectus
supplement. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed "filed" with the SEC,
including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K. The
S-16
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reports
and documents specifically listed above or filed in the future (excluding any information furnished to, rather than filed with, the SEC) are deemed to be part of this prospectus supplement and
accompanying prospectus from the date of the filing of such reports and documents.
You
may request a free copy of any of the documents incorporated by reference in this prospectus supplement (other than exhibits, unless they are specifically incorporated by reference in this
prospectus supplement and the accompanying prospectus supplement) by writing or telephoning us at the following address:
Ra Pharmaceuticals, Inc.
87 Cambridge Park Drive
Cambridge, Massachusetts 02140
(617) 401-4060
S-17
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PROSPECTUS
RA PHARMACEUTICALS, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell the securities identified above from time to time in one or more offerings. This prospectus provides you with a general
description of the securities.
Each
time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering and the amounts, prices and terms of the
securities. The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the
applicable prospectus supplement before you invest in any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or
through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus
entitled "About this Prospectus" and "Plan of Distribution" for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the
method and terms of the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE "RISK FACTORS" ON PAGE 5 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE
APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS INCLUDED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR
SECURITIES.
Our common stock is listed on the Nasdaq Global Market under the symbol "
RARX
." On May 7,
2019, the last reported sale price of our common stock on the Nasdaq Global Market was $21.44 per share.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 9, 2019.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, as a "well-known
seasoned issuer" as defined in Rule 405 under the Securities Act of 1933, as amended, using a "shelf" registration process. By using a shelf registration statement, we may sell securities from
time to time and in one or more offerings as described in this prospectus. Each time that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains
specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may
contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to
that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus
supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free
writing prospectuses), together with the additional information described under the heading "Where You Can Find More Information; Incorporation by Reference."
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement or
any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing
in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing
prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by
reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any
prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and
other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this
information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing
prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading "Risk Factors" contained
in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this
prospectus. Accordingly, investors should not place undue reliance on this information.
When
we refer to "Ra Pharma," "we," "our company," "our," "us" and the "Company" in this prospectus, we mean Ra Pharmaceuticals, Inc. and its consolidated subsidiaries, unless
otherwise specified. When we refer to "you," we mean the potential holders of the applicable series of securities.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information
statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is
http://www.sec.gov
.
Our
website address is
http://www.rapharma.com
. The information on our website, however, is not, and should not be deemed to be, a part of
this prospectus.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The
full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as
exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are
summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant
matters. You may inspect a copy of the registration statement through the SEC's website, as provided above.
Incorporation by Reference
The SEC's rules allow 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 information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file
with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that
statement.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC (other than those documents
or the portions of those documents not deemed to be filed):
-
•
-
Our Annual Report on
Form 10-K for the year ended December 31, 2018, filed with the SEC on March 7, 2019.
-
•
-
The information specifically incorporated by reference into our
Annual Report on Form 10-K
from our
Definitive Proxy Statement on Schedule 14A, filed with the SEC on
April 26, 2019.
-
•
-
Our Quarterly Report on
Form 10-Q for the quarter ended March 31, 2019, filed with the SEC on May 9, 2019.
-
•
-
The description of our
Common Stock contained in our Registration Statement on Form 8-A, filed with the SEC on October 21, 2016, and any amendment or report filed with the SEC for the purpose of updating the
description.
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, which we refer to as the "Exchange Act"
in this prospectus, prior to the termination of this offering but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus
and deemed to be part of this prospectus from the date of the filing of such reports and documents.
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You
may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
Ra
Pharmaceuticals, Inc.
87 Cambridge Park Drive
Cambridge, Massachusetts 02140
(617) 401-4060
Exhibits
to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
3
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THE COMPANY
We are a clinical-stage biopharmaceutical company using our proprietary peptide chemistry platform to create novel therapeutics to treat
life-threatening diseases that are caused by excessive or uncontrolled activation of the complement system, an essential component of the body's innate immune system. Our lead product candidate,
zilucoplan, is being developed as a convenient self-administered subcutaneous injection, which is an injection into the tissue under the skin, for the treatment of various complement-mediated
diseases, including generalized myasthenia gravis and other complement mediated disorders. Additionally, we are pursuing discovery and pre-clinical programs targeting selective inhibition of other
uncontrolled complement pathway factors to treat a variety of neurologic, renal, and inflammatory diseases. In addition to our focus on developing novel therapeutics to treat complement-mediated
diseases, we have validated our Extreme Diversity platform by successfully identifying and delivering orally-available cyclic peptides for a non-complement cardiovascular target with a large market
opportunity in a collaboration with Merck & Co., Inc.
We
were incorporated in Delaware in June 2008. Our principal executive offices are located at 87 Cambridge Park Drive, Cambridge, Massachusetts 02140 and our telephone number
is (617) 401-4060. Our website address is
www.rapharma.com
. The information contained on our website is not incorporated by reference into
this prospectus, and you should not consider any information contained
on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities. Our common stock is listed on the Nasdaq Global Market under the symbol
"RARX."
We
use various trademarks and trade names in our business, including without limitation our corporate name and logo. All other trademarks or trade names, including without limitation
corporate names and logos, referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this report may be referred to without
the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law,
their rights thereto.
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RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves significant risks. You should
carefully consider the risk factors incorporated by reference to our most recent
Annual Report on Form 10-K
and any subsequent
Quarterly Reports on Form 10-Q
or
Current Reports on Form 8-K
we file after the date of this
prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other
information contained in the applicable prospectus supplement and any applicable free writing prospectus before making a decision about investing in our securities. The risks and uncertainties we have
described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of
these risks might cause you to lose all or part of your investment in the offered securities.
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USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
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DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and may not contain all the information you should consider before investing in
our capital stock. This description is summarized from, and qualified in its entirety by reference to, our third amended and restated certificate of incorporation, which has been publicly filed with
the SEC. See "Where You Can Find More Information; Incorporation by Reference."
Our
authorized capital stock consists of:
-
•
-
150,000,000 shares of common stock, par value $0.001 per share; and
-
•
-
5,000,000 shares of preferred stock, par value $0.001 per share.
Common Stock
Our common stock is listed on the Nasdaq Global Market under the symbol "RARX."
Voting Rights.
We are authorized to issue one class of common stock. The holders of our common stock are entitled to one vote for each
share held on
all matters submitted to a vote of the stockholders. The holders of our common stock do not have any cumulative voting rights.
Rights Upon Liquidation.
In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to
share ratably in
all assets remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock.
Other Rights.
Holders of our common stock are entitled to receive ratably any dividends declared by our board of directors out of funds
legally
available for that purpose, subject to any preferential dividend rights of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription rights or
redemption or sinking fund provisions.
The
rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock
that we may designate and issue in the future. Except as described under "Anti-Takeover Effects of Delaware Law and our Certificate of Incorporation and Bylaws" below, a majority vote of the holders
of common stock is
generally required to take action under our third amended and restated certificate of incorporation and amended and restated by-laws.
Transfer Agent
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
Dividend
Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any
preferential dividend rights of outstanding preferred stock. We have never declared or paid any cash dividends on our common stock. We do not intend to declare or pay cash dividends for the
foreseeable future. We currently expect to retain all future earnings, if any, for use in the development, operation and expansion of our business. Any determination to pay cash dividends in the
future will depend upon, among other things, our results of operations, plans for expansion, tax considerations, available net profits and reserves, limitations under law, financial condition, capital
requirements and other factors that our board of directors considers to be relevant.
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Preferred Stock
Our board of directors is authorized, without action by the stockholders, to designate and issue up to an aggregate of 5,000,000 shares of
preferred stock in one or more series. Our board of directors can designate the rights, preferences and privileges of the shares of each series and any of its qualifications, limitations or
restrictions. 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 common stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings and acquisitions and other corporate purposes
could, under certain circumstances, have the effect of restricting dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock,
or delaying, deferring or preventing a change in control of our company, which might harm the market price of our common stock. See "Anti-Takeover Effects of Delaware Law and our Certificate of
Incorporation and Bylaws" below.
Our
board of directors will make any determination to issue such shares based on its judgment as to our company's best interests and the best interests of our stockholders. We have no
shares of preferred stock outstanding and we have no current plans to issue any shares of preferred stock.
Options
As of March 31, 2019, options to purchase an aggregate of 1,591,497 shares of our common stock were outstanding under our 2010 Stock
Option and Grant Plan and options to purchase an aggregate of 3,819,267 shares of our common stock were outstanding under our 2016 Stock Award and Incentive Plan.
Restricted Stock Units
As of March 31, 2019, 212,869 shares of common stock were issuable upon the vesting of outstanding restricted stock units under our 2016
Stock Award and Incentive Plan. Our restricted stock units represent an unsecured promise to grant at no cost a set number of shares of our common stock upon the completion of the vesting schedule and
vest over three years. With respect to our restricted stock units, recipients are not entitled to cash dividends and have no voting rights on the stock during the vesting period.
Registration Rights
Certain holders of our common stock are entitled to rights with respect to the registration of such shares for public resale under the
Securities Act, pursuant to an amended and
restated investors' rights agreement by and among us and certain of our stockholders, until the rights otherwise terminate pursuant to the terms of the investors' rights agreement. The registration of
shares of common stock as a result of the following rights being exercised would enable holders to trade these shares without restriction under the Securities Act when the applicable registration
statement is declared effective.
Form S-1 Registration Rights
If the holders of a majority of the registrable securities request in writing that we effect a registration with respect to all or part of such
registrable securities then outstanding having an anticipated aggregate offering price that would exceed $10,000,000, net of expenses, we may be required to register their shares. We are obligated to
effect at most three registrations in response to these demand registration rights. If the holders requesting registration intend to distribute their shares by means of an underwriting, the managing
underwriter of such offering will have the right to limit the numbers of shares to be underwritten for reasons related to the marketing of the shares.
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Piggyback Registration Rights
If at any time we propose to register any shares of our common stock under the Securities Act, subject to certain exceptions, the holders of
registrable securities will be entitled to notice of the registration and to include their shares of registrable securities in the registration. If our proposed registration involves an underwriting,
the managing underwriter of such offering will have the right to limit the number of shares to be underwritten for reasons related to the marketing of the shares.
Form S-3 Registration Rights
If, at any time after we become entitled under the Securities Act to register our shares on a registration statement on Form S-3, the
holders of a majority of the registrable securities request in writing that we effect a registration with respect to registrable securities at an aggregate price to the public in the offering of at
least $1,000,000, we will be required to effect such registration;
provided
,
however
, that we will not
be required to effect such a registration if, within any 12-month period, we have already effected two registrations on Form S-3 for the holders of registrable securities.
Expenses and Indemnification
Ordinarily, other than underwriting discounts and commissions, we will be required to pay all expenses incurred by us related to any
registration effected pursuant to the exercise of these registration rights. These expenses may include all registration and filing fees, printing expenses, fees and disbursements of our counsel,
reasonable fees and disbursements of a counsel for the selling security holders and blue sky fees and expenses. Additionally, we have agreed to indemnify selling stockholders for damages, and any
legal or other expenses reasonably incurred, arising from or based upon any untrue statement of a material fact contained in any registration statement, any omission or alleged omission to state a
material fact in any registration statement or necessary to make the statements therein not misleading, or any violation or alleged violation by the indemnifying party of securities laws, subject to
certain exceptions.
Termination of Registration Rights
The registration rights terminate upon the earlier of October 31, 2021, the closing of a deemed liquidation event, as set forth in the
investors' rights agreement and, with respect to any holder of registrable securities, such time when such holder holds less than one percent (1%) of our outstanding securities and all registrable
securities of such holder may be sold without restriction pursuant to SEC Rule 144 within a three (3) month period.
Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
Some provisions of Delaware law, our third amended and restated certificate of incorporation and our amended and restated by-laws could make the
following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and
directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our
best interests, including transactions which provide for payment of a premium over the market price for our shares.
These
provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking
to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased protection of our potential ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of
their terms.
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Undesignated Preferred Stock
The ability of our board of directors, without action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with
voting or other rights or preferences as designated by our board of directors could impede the success of any attempt to change control of us. These and other provisions may have the effect of
deferring hostile takeovers or delaying changes in control or management of our company.
Stockholder Meetings
Our amended and restated by-laws provide that a special meeting of stockholders may be called only by a resolution adopted by a majority of our
board of directors and only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders. Our amended and restated by-laws limit
the business that may be conducted at an annual meeting of stockholders to those matters properly brought before the meeting.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our amended and restated by-laws establish advance notice procedures with respect to stockholder proposals to be brought before a stockholder
meeting and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent
Our third amended and restated certificate of incorporation eliminates the right of stockholders to act by written consent without a meeting.
Staggered Board
Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each
year by our stockholders. This system of electing and removing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it
generally makes it more difficult for stockholders to replace a majority of the directors.
Removal of Directors
Our third amended and restated certificate of incorporation and amended and restated by-laws provide that, subject to the rights of holders of
any series of preferred stock, no member of our board of directors may be removed from office by our stockholders except for cause and, in addition to any other vote required by law, upon the approval
of the holders of at least 75% in voting power of the outstanding shares of capital stock entitled to vote in the election of directors. Subject to the rights of holders of any series of preferred
stock, any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office.
Stockholders Not Entitled to Cumulative Voting
Our third amended and restated certificate of incorporation does not permit stockholders to cumulate their votes in the election of directors.
Accordingly, the holders of a majority of the outstanding shares of our common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they choose,
other than any directors that holders of our preferred stock may be entitled to elect.
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Delaware Anti-Takeover Statute
We are subject to Section 203 of the General Corporation Law of the State of Delaware, which prohibits persons deemed to be "interested
stockholders" from engaging in a "business combination" with a publicly held Delaware corporation for three years following the date these persons become interested stockholders unless the business
combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an "interested
stockholder" is a person who, together with
affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation's voting stock. Generally, a "business
combination" includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover
effect with respect to transactions not approved in advance by the board of directors.
Amendment of Charter Provisions
The amendment of any of the above provisions, except for the provision making it possible for our board of directors to issue preferred stock
and the provision prohibiting cumulative voting, would require approval by holders of at least 75% in voting power of the outstanding shares of capital stock entitled to vote thereon.
The
provisions of Delaware law, our third amended and restated certificate of incorporation and our amended and restated by-laws could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover
attempts. These provisions may also have the effect of preventing changes in the composition of our board and management. It is possible that these provisions could make it more difficult to
accomplish transactions that stockholders may otherwise deem to be in their best interests.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement or free writing
prospectus, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general terms and provisions described in this prospectus apply
to a particular series of debt securities.
We
may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities
may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and
may be issued in one or more series.
The
debt securities will be issued under an indenture between us and a trustee to be named in the applicable indenture. We have summarized select portions of the indenture below. The
summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions that may be important to you. In the
summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the
meanings specified in the indenture.
As
used in this section only, "Ra Pharma," "we," "our" or "us" refer to Ra Pharmaceuticals, Inc., excluding our subsidiaries, unless expressly stated or the context otherwise
requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of directors, in an officer's certificate or by a supplemental indenture. (Section 2.2) The particular terms of each series of
debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We
can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount.
(Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal
amount and the following terms of the debt securities, if applicable:
-
•
-
the title and ranking of the debt securities (including the terms of any subordination provisions);
-
•
-
the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
-
•
-
any limit on the aggregate principal amount of the debt securities;
-
•
-
the date or dates on which the principal of the securities of the series is payable;
-
•
-
the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will
commence and be payable and any regular record date for the interest payable on any interest payment date;
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•
-
the place or places where principal of, and interest, if any, on, the debt securities will be payable (and the method of such payment), where
the securities of such series may be surrendered for
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-
•
-
any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series,
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and
-
•
-
whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if
any, of such guarantees. (Section 2.2)
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable
prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and
interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the
Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a "book-entry debt security"), or a certificate issued in definitive registered
form (we will refer to any debt security represented by a certificated security as a "certificated debt security") as set forth in the applicable prospectus supplement. Except as set forth under the
heading "Global Debt Securities and Book-Entry System" below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities.
You may transfer or exchange certificated debt securities at any office we maintain for this purpose in
accordance with
the terms of the indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7)
You
may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the
certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to
the new holder.
Global Debt Securities and Book-Entry System.
Each global debt security representing book-entry debt securities will be deposited with,
or on behalf
of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see "Global Securities."
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
(Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders
of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which
could adversely affect holders of debt securities.
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Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any
person (a "successor person") unless:
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•
-
we are the surviving corporation or the successor person (if other than Ra Pharma) is a corporation organized and validly existing under the
laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and
-
•
-
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
"Event of Default" means with respect to any series of debt securities, any of the following:
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•
-
default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default
for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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•
-
default in the payment of principal of any security of that series at its maturity;
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•
-
default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice
from the trustee or we and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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•
-
certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of Ra Pharma; or
-
•
-
any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement.
(Section 6.1)
No
Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default
under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We
will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice
will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof. (Section 6.1)
If
an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal
amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or,
if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all
debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the
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principal
(or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act
on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul
the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as
provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating to any series of debt
securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of
Default.
The
indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to
it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. (Section 7.1(e)) Subject to certain rights of the trustee, the
holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series. (Section 6.12)
No
holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
-
•
-
that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series;
and
-
•
-
the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered
indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal
amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7)
Notwithstanding
any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and
any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment. (Section 6.8)
The
indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a
Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each holder of
the securities of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or
Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default
(except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the
holders of those debt securities. (Section 7.5)
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Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any
debt security:
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•
-
to cure any ambiguity, defect or inconsistency;
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•
-
to comply with covenants in the indenture described above under the heading "Consolidation, Merger and Sale of Assets";
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•
-
to provide for uncertificated securities in addition to or in place of certificated securities;
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•
-
to add guarantees with respect to debt securities of any series or secure debt securities of any series;
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•
-
to surrender any of our rights or powers under the indenture;
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•
-
to add covenants or events of default for the benefit of the holders of debt securities of any series;
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•
-
to comply with the applicable procedures of the applicable depositary;
-
•
-
to make any change that does not adversely affect the rights of any holder of debt securities;
-
•
-
to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
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•
-
to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate administration by more than one trustee; or
-
•
-
to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act.
(Section 9.1)
We
may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment
will:
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•
-
reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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•
-
reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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•
-
reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
-
•
-
reduce the principal amount of discount securities payable upon acceleration of maturity;
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•
-
waive a default in the payment of the principal of, premium on or interest on any debt security (except a rescission of acceleration of the
debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that
resulted from such acceleration);
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•
-
make the principal of, premium on or interest on any debt security payable in currency other than that stated in the debt security;
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•
-
make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive
payment of the principal of, premium and interest on
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Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt
securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the outstanding debt securities of any series may
on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the
principal of, premium on or any interest on any debt security of that series;
provided
,
however
, that
the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted
from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance.
The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we
may be
discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee, in
trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of interest and
principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or
investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the indenture and those debt securities.
This
discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the U.S.
Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit,
defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and
discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants.
The indenture provides that, unless otherwise provided by the terms of the applicable series of debt
securities,
upon compliance with certain conditions:
-
•
-
we may omit to comply with the covenant described under the heading "Consolidation, Merger and Sale of Assets" and certain other covenants set
forth in the indenture, as well as any additional covenants that may be set forth in the applicable prospectus supplement; and
-
•
-
any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that
series ("covenant defeasance").
The
conditions include:
-
•
-
depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other
than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of
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interest
and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to
pay and discharge each installment of principal of, premium on and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those debt securities; and
-
•
-
delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4)
No Personal Liability of Directors, Officers, Employees or Stockholders
None of our past, present or future directors, officers, employees or stockholders, as such, will have any liability for any of our obligations
under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases
all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However,
this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be
governed by the laws of the State of New York.
The
indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the
debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further
provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party's address set forth in the indenture will
be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by
their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section 10.10)
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock or preferred stock or of debt securities.
We
may issue warrants independently or together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary of material provisions of the warrants and 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 a particular series of warrants. The terms of any warrants
offered under a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the
complete warrant agreements and warrant certificates that contain the terms of the warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
-
•
-
the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at
which such number of shares may be purchased upon such exercise;
-
•
-
the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of
preferred stock purchasable upon exercise of warrants to purchase preferred stock;
-
•
-
the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which
may be payable in cash, securities or other property;
-
•
-
the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately
transferable;
-
•
-
the terms of any rights to redeem or call the warrants;
-
•
-
the date on which the right to exercise the warrants will commence and the date on which the right will expire;
-
•
-
U.S. Federal income tax consequences applicable to the warrants; and
-
•
-
any additional terms of the warrants, including terms, procedures and limitations relating to the exchange, exercise and settlement of the
warrants.
Holders
of equity warrants will not be entitled:
-
•
-
to vote, consent or receive dividends;
-
•
-
receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or
-
•
-
exercise any rights as stockholders of Ra Pharma.
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in, or
calculable as set forth 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.
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A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate
trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will
not have any rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal of, premium on or interest on the underlying debt
securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised, the holders of the warrants will not have any rights of
holders of the underlying common stock or preferred stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock,
if any.
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DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may
evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company
that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under
this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the
complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions, and we will file as an exhibit to the registration
statement of which this
prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as
applicable:
-
•
-
the title of the series of units;
-
•
-
identification and description of the separate constituent securities comprising the units;
-
•
-
the price or prices at which the units will be issued;
-
•
-
the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
-
•
-
a discussion of certain U.S. federal income tax considerations applicable to the units; and
-
•
-
any other terms of the units and their constituent securities.
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GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in
book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository
Trust Company, New York, New York, as depositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates
evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary,
or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC
has advised us that it is:
-
•
-
a limited-purpose trust company organized under the New York Banking Law;
-
•
-
a "banking organization" within the meaning of the New York Banking Law;
-
•
-
a member of the Federal Reserve System;
-
•
-
a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and
-
•
-
a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC
holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in participants' accounts, thereby eliminating the need for physical movement of securities certificates. "Direct participants"
in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository
Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing
agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or
maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC's records. The ownership interest of
the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants' records. Beneficial owners of securities will not
receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic
statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries
made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under
the limited circumstances described below.
To
facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC's partnership nominee, Cede & Co.,
or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee
will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC's records reflect only the identity of the direct participants
to whose accounts the securities are credited,
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which
may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So
long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in respect of the securities and the
indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance
of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC's practice is to determine by lot the amount of the interest of
each direct participant in the securities of such series to be redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us
as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such
series are credited on the record date, identified in a listing attached to the omnibus proxy.
So
long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of
immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise provided in the description of the
applicable securities herein or in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire
transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons
entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit direct participants' accounts upon DTC's receipt of funds and corresponding detail information from us on the payment date in accordance with their
respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the
account of customers in bearer form or registered in "street name." Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements
in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and
indirect participants.
Except
under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery
of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
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The
laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or
pledge beneficial interests in securities.
DTC
may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event
that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As
noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However,
if:
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•
-
DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of
securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days
of the notification to us or of our becoming aware of DTC's ceasing to be so registered, as the case may be;
-
•
-
we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
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•
-
an Event of Default has occurred and is continuing with respect to such series of securities,
we
will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is
exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is
expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A.,
which we refer to as "Clearstream," or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as "Euroclear," either directly if you are a participant in Clearstream
or Euroclear or indirectly through organizations that are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through
customers' securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers'
securities accounts in such depositaries' names on DTC's books.
Clearstream
and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the
clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of
certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the
rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC's rules and
procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global
securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for
business in the United States.
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Cross-market
transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the
DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear
or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or
Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in the global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or
Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due
to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be
credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear
or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant in
Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of
the business day for Euroclear or Clearstream following DTC's settlement date.
Other
The information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been
obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and
procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has
any control over those entities and none of us takes
any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to discuss those matters. In addition, although we expect
that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such procedures may be changed or
discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and Euroclear or their respective participants of
these or any other rules or procedures governing their respective operations.
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PLAN OF DISTRIBUTION
We may sell the offered securities from time to time:
-
•
-
through underwriters or dealers;
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•
-
through agents;
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•
-
directly to one or more purchasers; or
-
•
-
through a combination of any of these methods of sale.
We
will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in the applicable prospectus supplement.
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LEGAL MATTERS
Latham & Watkins LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on
behalf of Ra Pharmaceuticals, Inc. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from Ra Pharmaceuticals, Inc.'s
Annual Report on Form 10-K
have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been so
incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
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Up to $100,000,000
Common Stock
PROSPECTUS SUPPLEMENT
Jefferies
May 9, 2019
Ra Pharmaceuticals (NASDAQ:RARX)
Historical Stock Chart
From Apr 2024 to May 2024
Ra Pharmaceuticals (NASDAQ:RARX)
Historical Stock Chart
From May 2023 to May 2024
