Filed Pursuant to Rule 424(b)(5)
Registration No. 333-255743
PROSPECTUS SUPPLEMENT
(To Prospectus dated May 11, 2021)
Timber Pharmaceuticals, Inc.
21,325,000 Shares of Common Stock
Pre-funded Warrants to Purchase up to 2,112,500 Shares of
Common Stock
Warrants to Purchase up to 23,437,500 Shares of Common
Stock
We are offering up to 21,325,000 shares of our common stock
and warrants to purchase one shares of common stock. Each share of
our common stock is being sold with one warrant to purchase one
share of our common stock, at the combined offering price of $0.64
per share of common stock and accompanying warrant to purchase one
share of common stock, representing an offering price of $0.63 per
share of common stock and $0.01 per accompanying warrant. The
warrants are exercisable from and after the date of their issuance
and expire on the fifth anniversary of such date, at an exercise
price of $0.70 per share of common stock. The shares of common
stock and warrants will be issued separately.
We are also offering 2,112,500 pre-funded warrants, or the
Pre-funded Warrants (and the shares of common stock issuable from
time to time upon exercise of the Pre-funded Warrants), to those
purchasers whose purchase of shares of common stock in this
offering would result in the purchaser, together with its
affiliates and certain related parties, beneficially owning more
than 4.99% (or, at the election of the purchaser, 9.99%) of our
outstanding shares of common stock following the consummation of
this offering in lieu of the shares of common stock that would
result in such excess ownership. Each Pre-funded Warrant will be
exercisable for one share of common stock at an exercise price of
$0.001 per shares of common stock. The public offering price is
$0.639 per Pre-funded Warrant and accompanying warrant, which is
equal to the public offering price per share and accompanying
warrant less $0.001. Each Pre-funded Warrant will be exercisable
upon issuance and will expire when exercised in full. There is no
established public trading market for the Pre-funded Warrants, and
we do not expect a market to develop. We do not intend to apply for
listing of the Pre-funded Warrants on any securities exchange or
nationally recognized trading system. Without an active trading
market, the liquidity of the Pre-funded Warrants will be extremely
limited.
Our common stock is listed on The NYSE American, LLC (the “NYSE
American”) under the symbol “TMBR”. On November 2, 2021, the last
reported sales price of our common stock on the NYSE American was
$0.80 per share. Our common stock has recently experienced extreme
volatility in price and trading volume. For example, on March 4,
2021 and March 11, 2021, the closing price of our common stock on
the NYSE American was $1.66 and $3.55, respectively, and daily
trading volume on these days was approximately 3.5 million and
143.7 million shares, respectively. During this period, there were
no recent changes in our financial condition or results of
operations that were consistent with the change in our stock price.
Investors that purchase shares of our common stock may lose a
significant portion of their investments if the price of our common
stock declines. Please see the section of this prospectus
supplement titled “Risk Factors.” You are urged to obtain current
market quotations of our common stock. We have no preferred stock,
warrants, subscription rights or units listed on any market.
The offering is being underwritten on a firm commitment basis. The
underwriters may offer the shares of common stock and Pre-funded
Warrants from time to time to purchasers directly or through
agents, or through brokers in brokerage transactions on the NYSE
American, or to dealers in negotiated transactions or in a
combination of such methods of sale, or otherwise, at fixed price
or prices, which may be changed, or at market prices prevailing at
the time of sale, at prices related to such prevailing market
prices.
Investing in our common stock involves risks. Before buying any
shares, you should read the discussion of material risks of
investing in our common stock in “Risk Factors” beginning on page
S-8 of this prospectus supplement, on page 4 of the accompanying
prospectus and in the documents incorporated by reference in this
prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement is truthful
or complete. Any representation to the contrary is a criminal
offense.
| |
|
Per
Share and
Warrant |
|
|
Per
Pre-Funded
Warrant and
Warrant |
|
|
Total |
|
| Public
offering price |
|
$ |
0.64 |
|
|
$ |
0.639 |
|
|
$ |
14,997,887.50 |
|
| Underwriting
discounts and commissions(1) |
|
$ |
0.0384 |
|
|
$ |
0.0384 |
|
|
$ |
900,000.00 |
|
| Proceeds,
before expenses and fees, to us |
|
$ |
0.6016 |
|
|
$ |
0.6006 |
|
|
$ |
14,097.887.50 |
|
|
(1) |
In addition, we have agreed to pay
a management fee to the underwriters equal to 1.0% of the aggregate
gross proceeds in the offering and to reimburse certain expenses of
the underwriters in connection with this offering. See
“Underwriting” for additional disclosure regarding underwriting
compensation. |
We have granted the underwriters an option for a period of up to 30
days from the date of this prospectus supplement to purchase up to
3,515,625 additional shares of our common stock at the public
offering price per share, and/or warrants to purchase up to
3,515,625 shares of our common stock at the public offering
price per warrant, less the underwriting discounts and commissions.
If the underwriters exercise the option in full, the total
underwriting discounts and commissions payable by us will be
$1,035,000 and the total proceeds to us, before expenses,
will be $16,212,887.50.
Delivery of the shares of our common stock, Pre-funded Warrants and
warrants being offered pursuant to this prospectus supplement and
the accompanying prospectus is expected to be made on or about
November 5, 2021, subject to satisfaction of customary closing
conditions.
H.C. Wainwright & Co.
The date of this prospectus supplement is November 2,
2021.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS SUPPLEMENT
On May 4, 2021, we filed with the Securities and Exchange
Commission, or SEC, a registration statement on Form S-3 (File No.
333-255743) utilizing a “shelf” registration process relating to
the securities described in this prospectus supplement, which
registration statement was declared effective on May 11, 2021.
Under this shelf registration process, we may offer and sell,
either individually or in combination, in one or more offerings,
any of the securities described in the accompanying prospectus, for
total gross proceeds of up to $100,000,000.
This prospectus supplement describes the specific terms of this
offering and also adds to and updates information contained in the
accompanying prospectus and the documents incorporated by reference
herein and into the accompanying prospectus. The second part, the
accompanying prospectus, provides more general information. If the
information in this prospectus supplement or any relevant free
writing prospectus we may authorize for use in connection with this
offering is inconsistent with the accompanying prospectus or any
document incorporated by reference therein filed prior to the date
of this prospectus supplement or such free writing prospectus, you
should rely on the information in this prospectus supplement or
such free writing prospectus.
We and the underwriters have not authorized anyone to provide you
with any information or to make any representations other than
those included or incorporated by reference in this prospectus
supplement and the accompanying prospectus and any relevant free
writing prospectus we may authorize for use in connection with this
offering. If you receive any information not authorized by us, we
and the underwriters take no responsibility for, and can provide no
assurance as to the reliability of, such information. We are not
making an offer to sell the securities offered hereby in any
jurisdiction where the offer or sale is not permitted. You should
not assume that the information contained or incorporated by
reference in this prospectus supplement or the accompanying
prospectus or any relevant free writing prospectus we may authorize
for use in connection with this offering is accurate as of any date
other than its respective date, regardless of its time of delivery
or any sale of the securities covered hereby. Our business,
financial condition, results of operations and prospects may have
changed since that date.
It is important for you to read and consider all of the information
contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus and any relevant free
writing prospectus we may authorize for use in connection with this
offering in making your investment decision. This prospectus
supplement contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. We include
cross-references in this prospectus supplement and the accompanying
prospectus to captions in these materials where you can find
additional related discussions. The table of contents in this
prospectus supplement provides the pages on which these captions
are located. You should read both this prospectus supplement and
the accompanying prospectus, together with the additional
information described in the sections entitled “Where You Can Find
Additional Information” on page S-18 and “Incorporation of
Documents by Reference” on page S-19 of this prospectus supplement,
before investing in our common stock.
We are offering to sell, and seeking offers to buy, the securities
offered hereby only in jurisdictions where offers and sales are
permitted. The distribution of this prospectus supplement, the
accompanying prospectus and any relevant free writing prospectus we
may authorize for use in connection with this offering and the
offering of the securities offered hereby in certain jurisdictions
may be restricted by law. Persons outside the United States who
come into possession of this prospectus supplement, the
accompanying prospectus and any relevant free writing prospectus we
may authorize for use in connection with this offering must inform
themselves about, and observe any restrictions relating to, the
offering of the securities offered hereby and the distribution of
this prospectus supplement, the accompanying prospectus and any
relevant free writing prospectus we may authorize for use in
connection with this offering outside the United States. This
prospectus supplement, the accompanying prospectus and any relevant
free writing prospectus we may authorize for use in connection with
this offering do 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, the accompanying
prospectus and any relevant free writing prospectus we may
authorize for use in connection with this offering by any person in
any jurisdiction in which it is unlawful for such person to make
such an offer or solicitation.
Timber Pharmaceuticals, Inc. and its consolidated subsidiaries
are referred to herein as “Timber,” “the Company,” “we,” “us” and
“our,” unless the context indicates otherwise.
This prospectus supplement and the accompanying prospectus contain,
or incorporate by reference, trademarks, tradenames, service marks
and service names of Timber Pharmaceuticals, Inc. and its
subsidiaries.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement, including the documents that we
incorporate by reference, contains forward-looking statements as
that term is defined in the federal securities laws. The events
described in forward-looking statements contained in this
prospectus supplement, including the documents that we incorporate
by reference, may not occur. Generally, these statements relate to
our business plans or strategies, projected or anticipated benefits
or other consequences of our plans or strategies, financing plans,
projected or anticipated benefits from acquisitions that we may
make, or projections involving anticipated revenues, earnings or
other aspects of our operating results or financial position, and
the outcome of any contingencies. Any such forward-looking
statements are based on current expectations, estimates and
projections of management. We intend for these forward-looking
statements to be covered by the safe-harbor provisions for
forward-looking statements. Words such as “may,” “expect,”
“believe,” “anticipate,” “project,” “plan,” “intend,” “estimate,”
and “continue,” and their opposites and similar expressions are
intended to identify forward-looking statements. We caution you
that these statements are not guarantees of future performance or
events and are subject to a number of uncertainties, risks and
other influences, many of which are beyond our control that may
influence the accuracy of the statements and the projections upon
which the statements are based. Factors that may affect our results
include, but are not limited to, the risks and uncertainties
discussed in the “Risk Factors” section on page S-8 of this
prospectus supplement and on page 4 of the accompanying prospectus,
in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2020 or in other reports we file with the
Securities and Exchange Commission.
Any one or more of these uncertainties, risks and other influences
could materially affect our results of operations and whether
forward-looking statements made by us ultimately prove to be
accurate. Our actual results, performance and achievements could
differ materially from those expressed or implied in these
forward-looking statements. We undertake no obligation to publicly
update or revise any forward-looking statements, whether from new
information, future events or otherwise.
You should rely only on the information in this prospectus
supplement and accompanying base prospectus. We have not authorized
any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely upon it.
PROSPECTUS SUPPLEMENT
SUMMARY
The following summary highlights some information from this
prospectus supplement. It is not complete and does not contain all
of the information that you should consider before making an
investment decision. You should read this entire prospectus,
including the “Risk Factors” section on page S-8 and the
accompanying prospectus on page 4, the consolidated financial
statements and related notes and the other more detailed
information appearing elsewhere or incorporated by reference into
this prospectus supplement.
The Company
We are a clinical-stage biopharmaceutical company focused on the
development and commercialization of treatments for orphan
dermatologic diseases. Our investigational therapies have proven
mechanisms-of-action backed by decades of clinical experience and
well-established CMC (chemistry, manufacturing and control) and
safety profiles. We are initially focused on developing
non-systemic treatments for rare dermatologic diseases including
congenital ichthyosis, facial angiofibromas (“FAs”) in tuberous
sclerosis complex (“TSC”), and other sclerotic skin diseases. Our
lead programs are TMB-001, TMB-002 and TMB-003.
TMB-001
TMB-001, a patented topical formulation of isotretinoin was
recently evaluated in a Phase 2b clinical trial for the treatment
of moderate to severe subtypes of congenital ichthyosis (“CI”), a
group of rare genetic keratinization disorders that lead to dry,
thickened, and scaling skin. A prior Phase 1/2 study involving 19
patients with CI demonstrated safety and a signal of preliminary
efficacy of TMB-001, as well as minimal systemic absorption. In
2018, the FDA awarded us the first tranche of a $1.5 million grant
in the amount of $500,000 to support clinical trials evaluating
TMB-001 through its Orphan Products Grant program. In
March 2020 and March 2021, the FDA awarded us the second
and third tranches of the grant, respectively, each in the amount
of $500,000.
On July 1, 2020, we announced that all 11 sites across the United
States and Australia in the Phase 2b CONTROL study evaluating
TMB-001 in patients with moderate to severe CI were enrolling
patients. As of December 31, 2020, all sites participating in a
Phase 2b clinical trial evaluating TMB-001 were opened and
enrolling patients. On May 31, 2021, we completed patient
enrollment in the Phase 2b clinical trial with 34 patients
randomized. On October 7, 2021, we announced top line data from the
TMB-001 Phase 2b trial. The data demonstrated a reduction in
targeted and overall severity of CI in patients treated with
topical IPEG™ TMB-001 (topical isotretinoin).
|
· |
In the per protocol population (the
“PP population”), 100 percent (nominal p = 0.04 ) and 40
percent (nominal p= ns ) of patients treated with TMB-001
0.05% and 0.1%, respectively, achieved VIIS-50 compared to 40
percent in the vehicle group. |
|
· |
In the ITT population, 64 percent
(nominal p =0.17 ) and 40 percent (nominal p
=ns ) of patients treated with TMB-001 0.05% and 0.1%,
respectively, achieved VIIS-50 compared to 33 percent in the
vehicle group. |
|
· |
In the PP population, 100 percent
(nominal p =0.002 ) and 60 percent (nominal p
=ns ) of patients treated with TMB-001 0.05% and 0.1%,
respectively, achieved a ≥2 point improvement in the IGA at week 12
compared to 10 percent in the vehicle group. |
|
· |
In the ITT population, 55 percent
(nominal p =0.02 ) and 40 percent (nominal p
=ns ) of patients treated with TMB-001 0.05% and 0.1%,
respectively, achieved a ≥2 point improvement in the IGA at week 12
compared to 8 percent in the vehicle group. |
|
· |
TMB-001 was generally well
tolerated with a similar incidence of adverse events (AEs) across
treatment groups. The most frequent AEs were local adverse effects
common for such topical treatments. There were no treatment-related
serious adverse events (SAE). |
On December 15, 2020, we announced that we had received a notice of
allowance from the U.S. Patent and Trademark Office (USPTO) for a
Company patent application covering TMB-001 (U.S. Patent
Application No.: 15/772,456) and the application subsequently
issued on February 10, 2021 as US 10,933,018.
On April 28, 2021, we announced that the Japanese Patent Office had
decided to grant a patent (No. 2018542677) for TMB-001.
On May 18, 2021, we received notice that the Australian Patent
Office had decided to grant a patent (No. 2016346203) for
TMB-001.
TMB-002
TMB-002, a proprietary topical formulation of rapamycin, is
currently being evaluated in a Phase 2b clinical trial for the
treatment of FAs in TSC, a multisystem genetic disorder resulting
in the growth of hamartomas in multiple organs. TSC results from
dysregulation in the mTOR pathway, and as a topical mTOR inhibitor,
TMB-002 may address FAs in TSC without the systemic absorption of
an oral agent.
As of April 30, 2021, all sites participating in a Phase 2b
clinical trial evaluating TMB-002 were opened and are currently
enrolling patients. Site activation and patient enrollment and data
collection have been impacted by the COVID-19 pandemic in the
larger and longer TMB-002 study, especially at our contracted test
sites in Eastern Europe. Currently, we can confirm that recruitment
has been finalized on the TMB-002 Phase 2b trial with a total of
114 consented (108 randomized) patients. We expect to review top
line results from this trial in the third quarter of 2022.
On March 17, 2021, we announced that AFT Pharmaceuticals Limited
(“AFT”), one of our development partners, entered into a license
and supply agreement with Desitin Arzneimittel GmbH (“Desitin”) for
Pascomer® (TMB-002 topical rapamycin) for the treatment of FAs
associated with TSC in Europe. Pursuant to the AFT Licensing and
Development Agreement, we are entitled to receive a significant
percentage of the economics (royalties and milestones) in any
licensing transaction that AFT executes outside of North America,
Australia, New Zealand, and Southeast Asia. The current transaction
with Desitin is included in the scope of this provision and as such
in the third quarter of 2021 the Company has received €250,000
related to an upfront milestone payment paid to AFT by Desitin
during the quarter ended September 30, 2021 and has recorded
approximately $0.3 million in our financial statements.
TMB-003
The product in its earliest stage in our pipeline is TMB-003, a
proprietary formulation of Sitaxsentan, a new chemical entity in
the U.S., which is a selective endothelin-A receptor antagonist. It
is currently in preclinical development as a locally applied
formulation for the treatment of fibrotic and sclerotic skin
disorders, such as scleroderma, a rare connective tissue disorder
characterized by abnormal thickening of the skin.
On January 12, 2021, we announced that the FDA has granted orphan
drug designation for TMB-003, our locally delivered formulation of
Sitaxsentan, for the treatment of systemic sclerosis. We are
planning to pursue additional orphan drug designations in other
indications.
BPX-01 and BPX-04
Pursuant to the Merger Agreement (as defined below), BPX-01
(Topical Minocycline, 2%) and BPX-04 (Topical Minocycline, 1%) were
added to our portfolio. BPX-01 and BPX-04 are assets currently in
development for acne vulgaris and papulopustular rosacea,
respectively. On July 22, 2020, we announced that we had received
notice from the European Patent Office that it intends to grant a
patent for the Company’s topical composition of pharmaceutical
tetracycline (including minocycline) for dermatological use
(European Patent Application No. 16714168.8) and the application
subsequently issued on December 16, 2020 as EP 3273940. Patents
covering the BPX-01 and BPX-04 assets have previously been granted
in the United States, Japan, South Africa, and Australia. We are
currently evaluating our strategic options regarding these
assets.
On September 15, 2020, we announced that we had received a notice
of allowance from the USPTO for a Company patent application
covering BPX-01 and BPX-04 (U.S. Patent Application No.:
16/514,459) and the application subsequently issued on January 5,
2021 as US 10,881,672.
The Merger, Reverse Stock Split and Name Change
On May 18, 2020, we completed our business combination with
Timber Sub, in accordance with the terms of the Agreement and Plan
of Merger and Reorganization, dated as of January 28, 2020, as
amended, by and among Timber, Timber Sub and BITI Merger Sub Inc.,
a wholly-owned subsidiary of Timber (“Merger Sub”) (the “Merger
Agreement”), pursuant to which Merger Sub merged with and into
Timber Sub, with Timber Sub surviving as a wholly owned subsidiary
of Timber (the “Merger”).
In connection with, and immediately prior to the completion of, the
Merger, we effected a reverse stock split of our common stock, at a
ratio of 1-for-12 (the “Reverse Stock Split”). Under the terms of
the Merger Agreement, after taking into account the Reverse Stock
Split, we issued shares of common stock to Timber Sub’s unitholders
at an exchange rate of 629.57 shares of common stock for each
Timber Sub common unit outstanding immediately prior to the Merger.
In connection with the Merger, we changed our name from “BioPharmX
Corporation” to “Timber Pharmaceuticals, Inc.,” and the
business conducted by the Company became the business conducted by
Timber Sub.
Private Placement of Common Stock and Warrants
On May 18, 2020, Timber and Timber Sub completed a private
placement transaction (the “Pre-Merger Financing”) with the
Investors pursuant to the Securities Purchase Agreement for an
aggregate purchase price of approximately $25.0 million (comprised
of (i) approximately $5 million credit with respect to the
senior secured notes issued in connection with the bridge loan that
certain of the Investors made to Timber Sub at the time of the
execution of the Merger Agreement and (ii) approximately $20
million in cash from the Investors).
Pursuant to the Pre-Merger Financing, (i) Timber Sub issued
and sold to the Investors common units of Timber Sub which
converted pursuant to the exchange ratio in the Merger into an
aggregate of approximately 4,137,509 shares (the “Converted
Shares”) of common stock; and (ii) the Company agreed to issue
to each Investor, on the tenth trading day following the
consummation of the Merger, (A) Series A Warrants
representing the right to acquire shares of common stock equal to
75% of the sum of (a) the number of Converted Shares issued to
the Investor, without giving effect to any limitation on delivery
contained in the Securities Purchase Agreement, and (b) the
number of shares of common stock underlying the Series B
Warrants issued to the Investor (the “Series B Warrants”) and
(B) the Series B Warrants. On June 2, 2020, pursuant
to the terms of the Securities Purchase Agreement, the Company
issued the Series A Warrants and the Series B
Warrants.
In addition, pursuant to the terms of the Securities Purchase
Agreement, dated as of January 28, 2020 between Timber Sub and
several of the Investors, the Company issued to such purchasers, on
May 22, 2020, warrants to purchase 413,751 shares of our
common stock (the “Bridge Warrants”) which have an exercise price
of $2.2362 per share, subject to full ratchet anti-dilution and
adjustment if shares are sold for a price less than the exercise
price of the warrants.
Pursuant to the Waiver Agreements we entered into with the Selling
Stockholders on November 19, 2020, (A) the exercise price
of the Series A Warrants was definitively set at $1.16 per
share, (B) the number of shares underlying all of the
Series A Warrants was definitively set at 20,178,214 and
(C) the number of shares underlying all of the Series B
Warrants was definitively set at 22,766,776. As of
March 4, 2021, all Series B Warrants had been exercised
in full.
Recent Developments
Preliminary Operating Results for the Three and Nine Months
Ended September 30, 2021 and Estimated Financial Condition
Information as of September 30, 2021
Preliminary unaudited operating results for the quarter ended
September 30, 2021 and certain preliminary financial condition
information as of September 30, 2021 are as follows:
|
· |
Net operating loss for the three
and nine months ended September 30, 2021 is expected to be
approximately $3.0 million and $7.8 million, respectively. |
|
· |
The Company ended the third quarter
with approximately $3.4 million in cash and common shares
outstanding of 36,659,685 at September 30, 2021. |
The above information is preliminary financial information for the
third quarter of 2021 and subject to completion. The unaudited,
estimated results for the third quarter of 2021 are preliminary and
were prepared by our management, based upon our estimates, a number
of assumptions and currently available information, and are subject
to revision based upon, among other things, quarter-end closing
procedures and/or adjustments, the completion of our interim
consolidated financial statements and other operational procedures.
This preliminary financial information is the responsibility of
management and has been prepared in good faith on a consistent
basis with prior periods. However, we have not completed our
financial closing procedures for the quarter ended September 30,
2021, and our actual results could be materially different from
this preliminary financial information, which preliminary
information should not be regarded as a representation by us, our
management, or the underwriters as to our actual results for
quarter ended September 30, 2021. In addition, KPMG LLP, our
independent registered public accounting firm, has not audited,
reviewed, compiled, or performed any procedures with respect to
this preliminary financial information and does not express an
opinion or any other form of assurance with respect to this
preliminary financial information. During the course of the
preparation of our financial statements and related notes as of and
for the quarter ended September 30, 2021, we may identify items
that would require us to make material adjustments to this
preliminary financial information. As a result, prospective
investors should exercise caution in relying on this information
and should not draw any inferences from this information. This
preliminary financial information should not be viewed as a
substitute for full financial statements prepared in accordance
with United States generally accepted accounting principles and
reviewed by our auditors. See “Risk Factors” and “Cautionary Note
Regarding Forward-Looking Statements.”
Our financial statements and related notes as of and for the
quarter ended September 30, 2021 may not be filed with the SEC
until after this offering is completed. We currently expect to file
our Quarterly Report on Form 10-Q including our financial
statements for the quarter ended September 30, 2021 on or about
November 15, 2021.
Corporate Information
Our principal offices are located at 110 Allen Road,
Suite 401, Basking Ridge, NJ, and our telephone number is
(908) 636-7160. Our website address is www.timberpharma.com. Our
website and the information contained on, or that can be accessed
through, our website shall not be deemed to be incorporated by
reference in, and are not considered part of, this prospectus
supplement. You should not rely on any such information in making
your decision whether to purchase our common stock.
THE OFFERING
| Securities
offered by us |
|
21,325,000 shares
of common stock, warrants to purchase an aggregate
of 23,437,500 shares of common stock and Pre-funded Warrants
to purchase an aggregate of 2,112,500 shares of common
stock. |
| |
|
|
| Warrants
offered |
|
Warrants
to purchase up to 23,437,500 shares of common stock, which will be
exercisable during the period commencing on the date of their
issuance and ending five years from such date at an exercise price
of $0.70 per share of common stock. This prospectus also relates to
the offering of the shares of common stock issuable upon exercise
of the warrants. There is no established public trading market for
the warrants, and we do not expect a market to develop. In
addition, we do not intend to apply for listing of the warrants on
any national securities exchange or other nationally recognized
trading system |
| |
|
|
| Description
of Pre-funded Warrants |
|
If
the issuance of shares of common stock to a purchaser in this
offering would result in such purchaser, together with its
affiliates and certain related parties, beneficially owning more
than 4.99% (or, at the election of the purchaser, 9.99%) of our
outstanding shares of common stock following the consummation of
this offering, then such purchaser may purchase, if they so choose,
in lieu of the shares of common stock that would result in such
excess ownership, a Pre-funded Warrant to purchase shares of common
stock for a purchase price per share of common stock subject to
such Pre-funded Warrant equal to the per share public offering
price for the shares of common stock in this offering less $0.001.
Each Pre-funded Warrant will have an exercise price of $0.001 per
share of common stock, will be exercisable upon issuance and will
expire when exercised in full. This prospectus supplement also
relates to the offering of shares of common stock issuable upon
exercise of these Pre-funded Warrants. |
| |
|
|
| Option to purchase additional shares and/or
warrants |
|
We have granted the underwriter a
30-day option to purchase up to 3,515,625 additional shares of
common stock and/or warrants to purchase up to 3,515,625 shares of
our common stock at the public offering price per share of common
stock or warrant, respectively, less underwriting discounts and
commissions. |
| |
|
|
| Common
stock to be outstanding immediately after this
offering |
|
60,097,185 shares
of common stock (or 63,612,810 shares if the underwriters
exercise in full their option to purchase additional shares),
assuming the exercise in full of Pre-funded Warrants issued in this
offering. |
| |
|
| Use
of proceeds |
|
We
intend to use the net proceeds from this offering for general
corporate purposes, including, but not limited to, ongoing research
and pre-clinical studies, clinical trials, the development of new
biological and pharmaceutical technologies, investing in or
acquiring companies that are synergistic with or complementary to
our technologies, and licensing activities related to our current
and future product candidates, including a payment of $4.0 million
due to Patagonia Pharmaceuticals LLC (“Patagonia”) on the
initiation of a Phase 3 pivotal trial for TMB-001, and working
capital. See “Use of Proceeds” on page S-10. |
| |
|
| Risk
factors |
|
This
investment involves a high degree of risk. You should read the
description of risks set forth under “Risk Factors” beginning on
page S-8 of this prospectus supplement or otherwise incorporated by
reference in this prospectus supplement for a discussion of factors
to consider before deciding to purchase our securities. |
| |
|
| NYSE
American symbol |
|
Our
common stock is listed on the NYSE American under the symbol
“TMBR”. There is no established trading market for the Pre-funded
Warrants, and we do not expect a trading market to develop. We do
not intend to list the Pre-funded Warrants on any securities
exchange or nationally recognized trading system. Without a trading
market, the liquidity of the Pre-funded Warrants will be extremely
limited. |
The number of shares of our common stock to be outstanding
immediately after this offering is based on 36,659,685 shares
outstanding as of November 1, 2021, and excludes, as of that date,
the following:
| |
● |
2,657,640
shares of common stock issuable upon the exercise of outstanding
vested and unvested stock options under our 2020 Omnibus Equity
Incentive Plan at a weighted-average exercise price of $1.10 per
share, 15,781 shares of common stock underlying legacy BioPharmX
stock options at a weighted-average exercise price of $75.27 per
share, and 367,670 shares of common stock issuable upon the
exercise of outstanding value appreciation rights
(“VARs”); |
| |
|
|
| |
● |
17,329,621
shares of common stock issuable upon the exercise of outstanding
warrants, having a weighted-average exercise price of $2.25 per
share, including (i) 16,701,824 Series A Warrants with an exercise
price of $1.16, (ii) 213,992 BioPharmX legacy warrants with a
weighted-average exercise price of $87.21, and (iii) 413,751 Bridge
Warrants with an exercise price of $2.2362 that are subject to
potential anti-dilution adjustment as a result of this
offering; |
| |
|
|
| |
● |
100,753
shares of common stock issuable upon the conversion of outstanding
Series A Preferred Stock; |
| |
|
|
| |
● |
183,360
shares of treasury stock; and |
| |
|
|
| |
● |
the
shares of common stock issuable upon exercise of the warrants
issued in this offering. |
RISK FACTORS
Before deciding whether to invest in our common stock, you should
carefully consider the risk factors set forth below and
incorporated by reference in this prospectus supplement from our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2020 and any subsequent updates described in our
Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K, as well as the risks, uncertainties and additional
information set forth in our SEC reports on Forms 10-K, 10-Q and
8-K and in the other documents incorporated by reference in this
prospectus supplement. For a description of these reports and
documents, and information about where you can find them, see
“Where You Can Find Additional Information” and “Incorporation of
Certain Information By Reference”. Additional risks not presently
known or that we presently consider to be immaterial could
subsequently materially and adversely affect our financial
condition, results of operations, business and prospects.
Risks Related to this Offering and our Common Stock
We have broad discretion in the use of the net proceeds from this
offering and our existing cash and may not use them
effectively.
Our management will have broad discretion in the application of the
net proceeds from this offering, including for any of the purposes
described in the section entitled “Use of Proceeds,” as well as our
existing cash and cash equivalents, and you will be relying on the
judgment of our management regarding such application. You will not
have the opportunity, as part of your investment decision, to
assess whether the net proceeds are being used appropriately.
Because of the number and variability of factors that will
determine our use of the net proceeds from this offering, their
ultimate use may vary substantially from their currently intended
use. Our management might not apply the net proceeds or our
existing cash in ways that ultimately increase the value of your
investment. If we do not invest or apply the net proceeds from this
offering or our existing cash and cash equivalents in ways that
enhance stockholder value, we may fail to achieve expected business
and financial results, which could cause our stock price to
decline. Pending their use, we may invest the net proceeds from
this offering in short-term, investment-grade, interest-bearing
securities. These investments may not yield a favorable return to
our stockholders.
You will experience immediate dilution in the book value per share
of the securities you purchase in this offering.
Because
the price per share of our common stock being offered is
substantially higher than the net tangible book value per share of
our common stock after giving effect to this offering, you will
suffer substantial dilution in the as adjusted net tangible book
value of the common stock you purchase in this offering. If you
purchase shares of common stock in this offering, you will suffer
immediate and substantial dilution of $0.33 per share in the
as adjusted net tangible book value of the common stock you
purchase. Any exercise of outstanding stock options, warrants or
other equity awards will result in further dilution. See “Dilution”
for a more detailed discussion of the dilution you will incur if
you purchase our securities in this offering.
The issuance or sale of shares in the future to raise money or for
strategic purposes could reduce the market price of our common
stock.
In the future, we may issue securities to raise cash for
operations, to pay down then existing indebtedness, as
consideration for the acquisition of assets, as consideration for
receipt of goods or services, and to pay for the development of our
product candidates. We have and in the future may issue securities
convertible into our common stock. Any of these events may dilute
stockholders’ ownership interests in our company and have an
adverse impact on the price of our common stock.
In addition, sales of a substantial amount of our common stock in
the public market, or the perception that these sales may occur,
could reduce the market price of our common stock. This could also
impair our ability to raise additional capital through the sale of
our securities.
Any actual or anticipated sales of shares by our stockholders may
cause the trading price of our common stock to decline. The sale of
a substantial number of shares of our common stock by our
stockholders, or anticipation of such sales, could make it more
difficult for us to sell equity or equity-related securities in the
future at a time and at a price that we might otherwise wish to
effect sales.
Issuance of our common stock upon exercise of convertible
securities may depress the price of our common stock.
As of November 1, 2021, we had 36,659,685 shares of common stock
issued and outstanding, warrants to purchase 17,329,567 shares of
common stock at a weighted-average exercise price of $2.25,
including (i) 16,701,824 Series A Warrants with an exercise price
of $1.16, and (ii) 413,751 Bridge Warrants with an exercise price
of $2.2362 that are subject to potential anti-dilution as a result
of this offering, (iii) 213,992 BioPharmX legacy warrants with a
weighted-average exercise price of $87.21, and (iv) outstanding
stock options to purchase 2,657,640 shares of common stock under
our 2020 Omnibus Equity Incentive Plan at a weighted-average
exercise price of $1.10 per share, 15,781 shares of common stock
issuable upon the exercise of outstanding and vested legacy
BioPharmX stock options at a weighted-average exercise price of
$75.27 and outstanding VARs convertible into an aggregate of
367,670 shares of common stock. All warrants, and stock
options are convertible, or exercisable into, one share of common
stock. The issuance of shares of our common stock upon the exercise
of outstanding convertible securities could result in substantial
dilution to our stockholders, which may have a negative effect on
the price of our common stock.
There is no public market for
the Pre-funded Warrants being offered by us in this
offering.
There is no established public trading market for
the Pre-funded Warrants being offered in this offering,
and we do not expect a market to develop. In addition, we do not
intend to apply to list the Pre-Funded warrants on any
national securities exchange or other nationally recognized trading
system, including the NYSE American. Without an active market, the
liquidity of the Pre-funded Warrants will be limited.
Holders of the Pre-funded Warrants offered hereby
will have no rights as common stockholders with respect to the
common stock underlying the Pre-funded Warrants until
such holders exercise their Pre-funded Warrants and
acquire our common stock, except as otherwise provided in
the Pre-funded Warrants.
Until holders of the Pre-funded Warrants acquire our common
stock upon exercise thereof, such holders will have no rights with
respect to the common stock underlying
such Pre-funded Warrants, except to the extent that
holders of such Pre-Funded warrants will have certain
rights to participate in distributions or dividends paid on our
common stock as set forth in the Pre-funded Warrants.
Upon exercise of the Pre-funded Warrants, the holders
will be entitled to exercise the rights of a common stockholder
only as to matters for which the record date occurs after the
exercise date.
There is no public market for the warrants to purchase common stock
being offered in this offering.
There is no established public trading market for the warrants
being offered in this offering, and we do not expect a market to
develop. In addition, we do not intend to apply for listing of the
warrants on any securities exchange. Without an active market, the
liquidity of the warrants will be limited.
Holders of our warrants will
have no rights as a common stockholder until such holders exercise
their warrants and acquire our common
stock, except as provided in the
warrants.
Until holders of warrants acquire shares of our common stock upon
exercise of the warrants, holders of warrants will have no rights
with respect to the shares of our common stock underlying such
warrants, except as provided in the warrants. Upon exercise of the
warrants, the holders thereof will be entitled to exercise the
rights of a common stockholder only as to matters for which the
record date occurs after the exercise date.
USE OF PROCEEDS
We estimate that the net proceeds from the offering will be
approximately $13.5 million (or approximately $15.6 million if the
underwriters exercise in full their option to purchase up to
3,515,625 additional shares of common stock and/or warrants to
purchase 3,515,625 additional shares of common stock), after
deducting the underwriting discounts and commissions and estimated
offering expenses payable by us.
We intend to use the net proceeds from the offering for general
corporate purposes, which includes, without limitation, ongoing
research and pre-clinical studies, clinical trials, the development
of new biological and pharmaceutical technologies, investing in or
acquiring companies that are synergistic with or complementary to
our technologies, licensing activities related to our current and
future product candidates (including a payment of $4.0 million due
to Patagonia on the initiation of a Phase 3 pivotal trial for
TMB-001), the development of emerging technologies, investing in or
acquiring companies that are developing emerging technologies,
licensing activities, or the acquisition of other businesses and
working capital. The amounts and timing of these expenditures will
depend on numerous factors, including the development of our
current business initiatives. We have no specific acquisition
contemplated at this time. As of the date of this prospectus
supplement, we cannot specify with certainty all of the particular
uses for the net proceeds from this offering. The amounts and
timing of our actual expenditures will depend on numerous factors,
including factors described under “Risk Factors” in this prospectus
supplement, the accompanying base prospectus and the documents
incorporated by reference herein and therein.
DILUTION
If you invest in our securities in this offering, your interest
will be diluted immediately to the extent of the difference between
the public offering price paid by the purchasers of the shares of
common stock and warrants sold in this offering and the as-adjusted
net tangible book value per shares of common stock after this
offering.
The net tangible book value of our common stock as of June 30, 2021
was approximately $4.8 million, or approximately $0.13 per shares
of common stock. Net tangible book value per share represents the
amount of our total tangible assets less total liabilities divided
by the total number of our shares of common stock outstanding as of
June 30, 2021.
After giving effect to the sale by us in this offering of
21,325,000 shares of common stock, 2,112,500 Pre-Funded
Warrants and 23,437,500 warrants at a price per share and related
warrant of $0.64 after deducting estimated underwriting discounts
and commissions and estimated offering expenses payable by us, and
assuming the exercise in full of Pre-funded Warrants issued in this
offering, our as adjusted net tangible book value as of June 30,
2021 would have been approximately $18.3 million, or approximately
$0.31 per share of common stock. This represents an immediate
increase in net tangible book value of approximately $0.18 per
share of common stock to our existing security holders and an
immediate dilution in as adjusted net tangible book value of
approximately $0.33 per share of common stock to purchasers of
common stock in this offering, as illustrated by the following
table:
| Public
offering price per share of common stock and related
warrant |
|
|
|
|
|
$ |
0.64 |
|
| Consolidated
net tangible book value per share as of June 30, 2021 |
|
$ |
0.13 |
|
|
|
|
|
| Increase
in consolidated net tangible book value per share of common stock
attributable to the offering |
|
$ |
0.18 |
|
|
|
|
|
| As
adjusted consolidated net tangible book value per share of common
stock as of June 30, 2021 |
|
$ |
0.31 |
|
|
|
|
|
| Dilution
per share of common stock to new investors participating in this
offering |
|
|
|
|
|
$ |
0.33 |
|
If the underwriters exercise their option to purchase up
to 3,515,625 additional shares of common stock and/or warrants
to purchase 3,515,625 additional shares in full, the as adjusted
net tangible book value will increase to $0.32 per share,
representing an immediate increase in net tangible book value of
$0.19 per share of our common stock to existing stockholders and an
immediate dilution of $0.32 per share to purchasers of our common
stock in this offering.
The figures above are based on 36,659,685 shares outstanding as of
June 30, 2021, and excludes as of such date:
| |
● |
184,456
shares of common stock issuable upon the exercise of outstanding
vested and unvested stock options under our 2020 Omnibus Equity
Incentive Plan at a weighted-average exercise price of $2.87 per
share (excluding aggregate of 2,473,184 shares of common stock
issuable upon the exercise of outstanding options with a
weighted-average exercise price of $0.96 granted in the third
quarter of 2021), 15,781 shares of common stock issuable upon the
exercise of outstanding and vested legacy BioPharmX stock options
at a weighted-average exercise price of $75.27, and 367,670 shares
of common stock issuable upon the exercise of outstanding vested
and unvested VARs; |
| |
|
|
| |
● |
17,335,503
shares of common stock issuable upon the exercise of outstanding
warrants, having a weighted-average exercise price of $2.25 per
share, including (i) 16,701,824 Series A Warrants with an exercise
price of $1.16, (ii) 214,046 BioPharmX legacy warrants with a
weighted-average exercise price of $87.25, and (iii) 413,751 Bridge
Warrants with an exercise price of $2.2362 that are subject to
potential anti-dilution adjustment as a result of this
offering; |
| |
|
|
| |
● |
100,753
shares of common stock issuable upon the conversion of outstanding
Series A Preferred Stock; |
| |
|
|
| |
● |
183,360
shares of treasury stock; and |
| |
|
|
| |
● |
the
shares of common stock issuable upon exercise of the warrants
issued in this offering. |
To the extent that outstanding exercisable options or warrants are
exercised, including the warrants issued in this offering, you may
experience further dilution. In addition, we may need to raise
additional capital and to the extent that we raise additional
capital by issuing equity or convertible debt securities your
ownership will be further diluted.
DESCRIPTION OF SECURITIES
OFFERED
We are offering 21,325,000 shares of our common
stock and warrants to purchase up to 23,437,500 shares of common
stock. We are also offering 2,112,500 Pre-funded Warrants to
those purchasers whose purchase of shares of common stock in this
offering would result in the purchaser, together with its
affiliates and certain related parties, beneficially owning more
than 4.99% (or, at the election of the purchaser, 9.99%) of our
outstanding shares of common stock following the consummation of
this offering in lieu of the shares of common stocks that would
result in such excess ownership. Each Pre-funded Warrant will be
exercisable for one share of common stock. No warrant for
fractional shares of common stock will be issued, rather warrants
will be issued only for whole shares of common stock. We are also
registering the shares of common stock issuable from time to time
upon exercise of the Pre-funded Warrants and warrants offered
hereby.
Common Stock
The descriptions of our common stock included in the accompanying
prospectus on page 7 under the heading “Description of Capital
Stock” are incorporated herein by reference.
Warrants
The
following is a summary of all material terms and provisions of the
warrants that are being offered hereby, the form of which
will be filed as an exhibit to a Current Report on Form 8 K in
connection with this offering and incorporated by reference into
the registration statement of which this prospectus supplement
forms a part. Prospective investors should carefully review the
terms and provisions of the form of warrant for a complete
description of the terms and conditions of the warrants.
Duration and Exercise Price
Each warrant offered hereby will have an exercise price equal to
$0.70. The warrants will be immediately exercisable and may be
exercised until the fifth anniversary of the issuance date. The
exercise price and number of shares of common stock issuable upon
exercise is subject to appropriate adjustment in the event of stock
dividends, stock splits, reorganizations or similar events
affecting our common stock and the exercise price. The warrants
will be issued separately from the common stock or pre-funded
warrants, respectively, and may be transferred separately
immediately thereafter. Warrants will be issued in certificated
form only.
Exercisability
The warrants will be exercisable, at the option of each holder, in
whole or in part, by delivering to us a duly executed exercise
notice accompanied by payment in full for the number of shares of
our common stock purchased upon such exercise (except in the case
of a cashless exercise as discussed below). A holder (together with
its affiliates) may not exercise any portion of such holder’s
warrants to the extent that the holder would own more than 4.99% of
the outstanding common stock immediately after exercise, except
that upon at least 61 days’ prior notice from the holder to us, the
holder may increase the amount of ownership of outstanding stock
after exercising the holder’s warrants up to 9.99% of the number of
shares of our common stock outstanding immediately after giving
effect to the exercise, as such percentage ownership is determined
in accordance with the terms of the warrants.
Cashless Exercise
If, at the time a holder exercises its warrants, a registration
statement registering the issuance or resale of the shares of
common stock underlying the warrants under the Securities Act is
not then effective or available for the issuance of such shares,
then in lieu of making the cash payment otherwise contemplated to
be made to us upon such exercise in payment of the aggregate
exercise price, the holder may elect instead to receive upon such
exercise (either in whole or in part) the net number of shares of
common stock determined according to a formula set forth in the
warrant. The warrants will be automatically exercised on a cashless
basis on the expiration date.
Fundamental Transactions
In the event of any fundamental transaction, as described in the
warrants and generally including any merger with or into another
entity, sale of all or substantially all of our assets, tender
offer or exchange offer, or reclassification of our common stock,
then upon any subsequent exercise of a warrant, the holder will
have the right to receive as alternative consideration, for each
share of our common stock that would have been issuable upon such
exercise immediately prior to the occurrence of such fundamental
transaction, the number of shares of common stock of the successor
or acquiring corporation or of our company, if it is the surviving
corporation, and any additional consideration receivable upon or as
a result of such transaction by a holder of the number of shares of
our common stock for which the warrant is exercisable immediately
prior to such event. Notwithstanding the foregoing, in the event of
a fundamental transaction, the holders of the warrants have the
right to require us or a successor entity to redeem the warrants
for cash in the amount of the Black-Scholes Value (as defined in
each warrant) of the unexercised portion of the warrants
concurrently with or within 30 days following the consummation of a
fundamental transaction. However, in the event of a fundamental
transaction which is not in our control, including a fundamental
transaction not approved by our board of directors, the holders of
the warrants will only be entitled to receive from us or our
successor entity, as of the date of consummation of such
fundamental transaction the same type or form of consideration (and
in the same proportion), at the Black Scholes Value of the
unexercised portion of the warrant that is being offered and paid
to the holders of our common stock in connection with the
fundamental transaction, whether that consideration is in the form
of cash, stock or any combination of cash and stock, or whether the
holders of our common stock are given the choice to receive
alternative forms of consideration in connection with the
fundamental transaction.
Transferability
Subject to applicable laws, a warrant may be transferred at the
option of the holder upon surrender of the warrant to us together
with the appropriate instruments of transfer.
Fractional Shares
No fractional shares of common stock will be issued upon the
exercise of the warrants. Rather, the number of shares of common
stock to be issued will, at our election, either be rounded up to
the nearest whole number or we will pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction
multiplied by the exercise price.
Trading Market
There is no established trading market for the warrants, and we do
not expect an active trading market to develop. We do not intend to
apply to list the warrants on any securities exchange or other
trading market. Without a trading market, the liquidity of the
warrants will be extremely limited.
Right as a Stockholder
Except as otherwise provided in the warrants or by virtue of the
holder’s ownership of shares of our common stock, such holder of
warrants does not have the rights or privileges of a holder of our
common stock, including any voting rights, until such holder
exercises such holder’s warrants.
Waivers and Amendments
No term of the warrants may be amended or waived without the
written consent of the majority of the holders of the warrants
purchased in this offering.
Pre-funded Warrants
The following summary of certain terms and provisions of
the Pre-funded Warrants that are being offered hereby is
not complete and is subject to, and qualified in its entirety by,
the provisions of the Pre-funded Warrant, the form of
which will be filed with the SEC as an exhibit to a Current Report
on Form 8-K in connection with this offering and
incorporated by reference into the registration statement of which
this prospectus supplement forms a part. Prospective investors
should carefully review the terms and provisions of the form
of Pre-funded Warrant for a complete description of the
terms and conditions of the Pre-funded Warrants.
Duration and Exercise Price
Each Pre-funded Warrant offered hereby will have an
initial exercise price per share of common stock equal to $0.001.
The Pre-funded Warrants will be immediately exercisable
and will expire when exercised in full. The exercise price and
number of shares of common stock issuable upon exercise is subject
to appropriate adjustment in the event of share dividends, share
splits, reorganizations or similar events affecting our shares of
common stock and the exercise price. Subject to the rules and
regulations of the applicable trading market, we may at any time
during the term of the Pre-funded Warrant, subject to the
prior written consent of the holders, reduce the then current
exercise price to any amount and for any period of time deemed
appropriate by our board of directors.
Exercisability
The Pre-funded Warrants will be exercisable, at the
option of each holder, in whole or in part, by delivering to us a
duly executed exercise notice accompanied by payment in full for
the number of shares of common stock purchased upon such exercise
(except in the case of a cashless exercise as discussed below). A
holder (together with its affiliates) may not exercise any portion
of the Pre-funded Warrant to the extent that the holder
would own more than 4.99% of the outstanding shares of common stock
immediately after exercise, except that upon at least 61 days’
prior notice from the holder to us, the holder may increase the
amount of beneficial ownership of outstanding shares after
exercising the holder’s Pre-funded Warrants up to 9.99%
of the number of our shares of common stock outstanding immediately
after giving effect to the exercise, as such percentage ownership
is determined in accordance with the terms of
the Pre-funded Warrants. Purchasers
of Pre-funded Warrants in this offering may also elect
prior to the issuance of the Pre-funded Warrants to have
the initial exercise limitation set at 9.99% of our outstanding
shares of common stock.
Cashless Exercise
In lieu of making the cash payment otherwise contemplated to be
made to us upon such exercise in payment of the aggregate exercise
price, the holder may elect instead to receive upon such exercise
(either in whole or in part) the net number of shares of common
stock determined according to a formula set forth in
the Pre-funded Warrants.
Fractional Shares
No fractional shares of common stock will be issued upon the
exercise of the Pre-funded Warrants. Rather, at the
Company’s election, the number of shares of common stock to be
issued will be rounded up to the nearest whole number or the
Company will pay a cash adjustment in an amount equal to such
fraction multiplied by the exercise price.
Transferability
Subject to applicable laws, a Pre-funded Warrant may be
transferred at the option of the holder upon surrender of
the Pre-funded Warrant to us together with the
appropriate instruments of transfer.
Trading Market
There is no trading market available for
the Pre-funded Warrants on any securities exchange or
nationally recognized trading system, and we do not expect a
trading market to develop. We do not intend to list
the Pre-funded Warrants on any securities exchange or
nationally recognized trading market. Without a trading market, the
liquidity of the Pre-funded Warrants will be extremely
limited. The shares of common stock issuable upon exercise of
the Pre-funded Warrants are currently traded on the NYSE
American.
Right as a Shareholder
Except as otherwise provided in the Pre-funded Warrants
or by virtue of such holder’s ownership of shares of common stock,
the holders of the Pre-funded Warrants do not have the
rights or privileges of holders of our shares of common stock,
including any voting rights, until they exercise
their Pre-funded Warrants.
The Pre-funded Warrants will provide that holders have
the right to participate in distributions or dividends paid on our
shares of common stock.
Fundamental Transaction
In the event of a fundamental transaction, as described in
the Pre-funded Warrants and generally including any
reorganization, recapitalization or reclassification of our shares
of common stock, the sale, transfer or other disposition of all or
substantially all of our properties or assets, our consolidation or
merger with or into another person, the acquisition of more than
50% of our outstanding shares of common stock, or any person or
group becoming the beneficial owner of 50% of the voting power
represented by our outstanding shares of common stock, the holders
of the Pre-funded Warrants will be entitled to receive
upon exercise of the Pre-funded Warrants the kind and
amount of securities, cash or other property that the holders would
have received had they exercised the Pre-funded Warrants
immediately prior to such fundamental transaction on a net exercise
basis.
UNDERWRITING
Pursuant to the underwriting agreement with H.C. Wainwright &
Co., LLC (the “Representative”), as Representative of the several
underwriters in this offering, we have agreed to issue and sell,
and each of the underwriters have agreed to purchase, the number of
shares of common stock, warrants and Pre-funded Warrants listed
opposite its name below, less the underwriting discounts and
commissions, on the closing date, subject to the terms and
conditions contained in the underwriting agreement. The
underwriting agreement provides that the obligations of the
underwriters are subject to certain customary conditions precedent,
representations and warranties contained therein.
|
Underwriter |
|
Number of
Shares |
|
|
Number of
Warrants |
|
|
Number of
Pre-funded
Warrants |
|
|
H.C. Wainwright & Co., LLC |
|
|
21,325,000 |
|
|
|
23,437,500 |
|
|
|
2,112,500 |
|
|
Total |
|
|
21,325,000 |
|
|
|
23,437,500 |
|
|
|
2,112,500 |
|
Pursuant to the underwriting agreement, the underwriters have
agreed to purchase all of the shares and warrants sold under the
underwriting agreement if any of these shares and warrants are
purchased, other than those shares and warrants covered by the
underwriters’ option to purchase additional shares of common stock
described below. The underwriters have advised us that they do not
intend to confirm sales to any account over which they exercise
discretionary authority.
Discount, Commissions and Expenses
The underwriters may offer the shares of common stock and warrants
from time to time to purchasers directly or through agents, or
through brokers in brokerage transactions on the NYSE American, or
to dealers in negotiated transactions or in a combination of such
methods of sale, or otherwise, at a fixed price or prices, which
may be changed, or at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated
prices, subject to receipt and acceptance by them and subject to
their right to reject any order in whole or in part. The difference
between the price at which the underwriters purchase shares and
warrants from us and the price at which the underwriters resell
such shares may be deemed underwriting compensation. If the
underwriters effect such transactions by selling shares of common
stock and warrants to or through dealers, such dealers may receive
compensation in the form of discounts, concessions or commissions
from the underwriters and/or purchasers of shares of common stock
and warrants for whom they may act as agents or to whom they may
sell as principal.
While the underwriters intend to offer the shares of common stock
at the price set forth on the cover of this prospectus supplement,
the underwriters may offer the shares of common stock from time to
time to purchasers directly or through agents, or through brokers
in brokerage transactions on NYSE American, or to dealers in
negotiated transactions or in a combination of such other methods
of sale, or otherwise, at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at
prices related to such prevailing market price or at negotiated
prices. Any shares and warrants sold by the underwriters to
securities dealers will be sold at the public offering price less a
selling concession not in excess of $0.0288 per share and related
warrant.
We have granted to the Representative an option, exercisable for 30
days from the date of this prospectus supplement, to purchase up to
3,515,625 additional shares of common stock and/or warrants to
purchase up to 3,515,625 shares of our common stock at the public
offering price per share of common stock or warrant, respectively,
less underwriting discounts and commissions.
The following table shows the public offering price, underwriting
discounts and commissions and proceeds, before expenses, to us.
| |
|
Per
Share and
Related
Warrant |
|
|
Per
Pre-funded
Warrant and
Related Warrant |
|
Total
Without
Option |
|
|
Total
With
Option |
|
| Public
offering price |
|
$ |
0.64 |
|
|
$ |
0.639 |
|
$ |
14,997,887.50 |
|
|
$ |
17,247,887.50 |
|
| Underwriting
discounts and commissions |
|
$ |
0.0384 |
|
|
$ |
0.0384 |
|
$ |
900,000.00 |
|
|
$ |
1,035,000.00 |
|
| Proceeds,
before expenses and fees, to us |
|
$ |
0.6016 |
|
|
$ |
0.6006 |
|
$ |
14,097,887.50 |
|
|
$ |
16,212,887.50 |
|
We have agreed to pay the legal fees and expenses of the
underwriters, in the sum of up to $100,000 in connection with this
offering, $50,000 for non-accountable expenses and clearing fees of
$15,950. We have also agreed to pay the underwriters a management
fee equal to 1.0% of the aggregate gross proceeds in this offering.
We estimate that the total expenses of the offering, excluding the
underwriting discounts and commissions, will be approximately
$410,000 and are payable by us.
Right of First Refusal
We have granted the Representative a six-month right of first
refusal to act as sole book-running manager, sole underwriter, or
sole placement agent if we or any of our subsidiaries raise funds
by means of a public offering or a private placement or any other
capital-raising financing of equity or equity-linked securities
using an underwriter or placement agent. If the Representative or
an affiliate of the Representative accept any such engagement, the
agreement governing such engagement will contain, among other
things, provisions for customary fees and terms for transactions of
similar size and nature, including indemnification, which are
appropriate to such a transaction.
Tail
If an offering is not consummated by November 15, 2021, we shall
pay the Representative the cash compensation provided above on the
gross proceeds provided to us by investors that were brought
over-the-wall or introduced to the Company by the Representative
during our engagement of the Representative in a public or private
offering or other financing or capital-raising transaction within
six months following the termination of our engagement of the
Representative.
Indemnification
We have agreed to indemnify the underwriters against certain
liabilities, including civil liabilities under the Securities Act,
or to contribute to payments that the underwriters may be required
to make in respect of those liabilities.
Lock-Up Agreements
We have agreed to not sell any shares of our common stock, or any
securities convertible into or exercisable or exchangeable into
shares of common stock, subject to certain exceptions, for a period
of 90 days after the closing of this offering unless we obtain
prior written consent of the underwriters. This consent may be
given at any time without public notice, and the underwriters may
consent in their sole discretion. The exceptions to the restriction
include, among other things, the issuance of any shares of our
capital stock or securities convertible into shares of our capital
stock that are issued (i) pursuant to a stock or option plan, (ii)
pursuant to the exercise or exchange of or conversion of any
securities exercisable or exchangeable for or convertible into
shares of common stock issued and outstanding on the date of this
prospectus supplement, (iii) as consideration in an acquisition,
merger or similar strategic transaction approved by a majority of
the disinterested directors, provided that such securities are
issued as “restricted securities” as defined in Rule 144 and carry
no registration rights that require or permit the filing of any
registration statement in connection therewith within 90 days
following the closing of this offering, and provided that any such
issuance shall only be to a person providing us business synergies
and additional benefits in addition to the investment of funds, but
shall not include a transaction in which we are issuing securities
primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
In addition, each of our directors and executive officers has
entered into a lock-up agreement with the Representative. Under the
lock-up agreements, subject to certain limited circumstances, our
directors and officers may not, directly or indirectly, sell, offer
to sell, contract to sell, or grant any option for the sale
(including any short sale), grant any security interest in, pledge,
hypothecate, hedge, establish an open “put equivalent position”
(within the meaning of Rule 16a-1(h) under the Exchange Act), or
otherwise dispose of, or enter into any transaction which is
designed to or could be expected to result in the disposition of,
any shares of our common stock or securities convertible into or
exchangeable for shares of our common stock, or publicly announce
any intention to do any of the foregoing, unless such directors and
executive officers obtain prior written consent of the
Representative for a period of 90 days from the date of this
prospectus supplement. This consent may be given at any time
without public notice, and the Representative may consent in its
sole discretion.
Price Stabilization, Short Positions and Penalty Bids
In connection with this offering, the underwriters may engage in
stabilizing transactions, syndicate covering transactions and
penalty bids in connection with our common stock.
Stabilizing transactions permit bids to purchase shares of common
stock so long as the stabilizing bids do not exceed a specified
maximum.
Syndicate covering transactions involve purchases of common stock
in the open market after the distribution has been completed in
order to cover syndicate short positions. Such a naked short
position would be closed out by buying securities in the open
market. A naked short position is more likely to be created if the
underwriters are concerned that there could be downward pressure on
the price of the securities in the open market after pricing that
could adversely affect investors who purchase in the offering.
Penalty bids permit the underwriters to reclaim a selling
concession from a syndicate member when the securities originally
sold by the syndicate member are purchased in a stabilizing or
syndicate covering transaction to cover syndicate short positions.
These stabilizing transactions, syndicate covering transactions and
penalty bids may have the effect of raising or maintaining the
market price of our common stock or preventing or retarding a
decline in the market price of our common stock. As a result, the
price of our common stock in the open market may be higher than it
would otherwise be in the absence of these transactions. Neither we
nor the underwriters make any representation or prediction as to
the effect that the transactions described above may have on the
price of our common stock. These transactions may be effected on
the NYSE American, in the over-the-counter market or otherwise and,
if commenced, may be discontinued at any time.
In connection with this offering, the underwriters also may engage
in passive market making transactions in our common stock in
accordance with Regulation M during a period before the
commencement of offers or sales of shares of our common stock in
this offering and extending through the completion of the
distribution. In general, a passive market maker must display its
bid at a price not in excess of the highest independent bid for
that security. However, if all independent bids are lowered below
the passive market maker’s bid that bid must then be lowered when
specific purchase limits are exceeded. Passive market making may
stabilize the market price of the securities at a level above that
which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
Electronic Distribution
A prospectus supplement and the accompanying prospectus in
electronic format may be made available on the websites maintained
by the underwriters, if any, participating in this offering and the
underwriters may distribute such prospectuses electronically. Other
than the prospectus supplement and the accompanying prospectus in
electronic format, the information on these websites is not part of
this prospectus supplement and the accompanying prospectus or the
registration statement of which this prospectus supplement and the
accompanying prospectus form a part, has not been approved or
endorsed by us or the underwriters, and should not be relied upon
by investors.
Other Relationships
From time to time, the underwriters and their affiliates have
provided, and may provide in the future, various advisory,
investment and commercial banking and other services to us in the
ordinary course of business, for which it has received and may
continue to receive customary fees and commissions.
Transfer Agent
The transfer agent for our common stock is Computershare Trust
Company, N.A. The transfer agent address is 520 Pike Street Suite
1305, Seattle, WA 98101, (206) 674-3050.
Listing on the NYSE American
Our common stock is listed on the NYSE American under the symbol
“TMBR”. We do not plan to list the warrants or the Pre-funded
Warrants on the NYSE American or any other securities exchange or
trading market.
LEGAL MATTERS
The validity of the common stock being offered will be passed upon
for us by Lowenstein Sandler LLP, Roseland, New Jersey. Ellenoff
Grossman & Schole LLP is counsel for the underwriters in
connection with this offering.
EXPERTS
The consolidated financial statements of Timber
Pharmaceuticals, Inc. as of December 31, 2020 and 2019,
and for the year ended December 31, 2020 and the period from
February 26, 2019 (Inception) through December 31, 2019,
have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing. The audit report covering the
December 31, 2020 consolidated financial statements contains
an explanatory paragraph that states that the Company's recurring
losses from operations raise substantial doubt about the entity's
ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from
the outcome of that uncertainty.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
This prospectus supplement is part of a registration statement on
Form S-3 that we have filed with the SEC relating to our
securities being offered hereby. This prospectus does not contain
all of the information in the registration statement and its
exhibits. The registration statement, its exhibits and the
documents incorporated by reference in this prospectus supplement
and their exhibits, all contain information that is material to the
offering of the securities hereby. Whenever a reference is made in
this prospectus supplement to any of our contracts or other
documents, the reference may not be complete. You should refer to
the exhibits that are a part of the registration statement in order
to review a copy of the contract or documents. The registration
statement and the exhibits are available at the SEC’s Public
Reference Room or through its website.
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains an Internet site
at http://www.sec.gov that contains reports, proxy and information
statements, and other information regarding issuers, such as us,
that file electronically with the SEC. Additionally, you may access
our filings with the SEC through our website at
www.timberpharma.com. We have included our website address as an
inactive textual reference only and our website and the information
contained on, or that can be accessed through, our website will not
be deemed to be incorporated by reference in, and are not
considered part of, this prospectus supplement.
We will provide you without charge, upon your oral or written
request, with an electronic or paper copy of any or all reports,
proxy statements and other documents we file with the SEC, as well
as any or all of the documents incorporated by reference in this
prospectus supplement (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to:
Timber Pharmaceuticals, Inc.
Attn: John Koconis, Chief Executive Officer and Chairman of
the Board
110 Allen Road, Suite 401 Basking Ridge, NJ 07920
Telephone number: (908) 636-7160
You should rely only on the information in this prospectus
supplement and the additional information described above and under
the heading “Incorporation of Certain Information by Reference”
below. We have not authorized any other person to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely upon it. We are not
making an offer to sell these securities in any jurisdiction where
such offer or sale is not permitted. You should assume that the
information in this prospectus supplement was accurate on the date
of the front cover of this prospectus supplement only. Our
business, financial condition, results of operations and prospects
may have changed since that date.
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information that we
file with it into this prospectus supplement, which means that we
can disclose important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus supplement. The information
incorporated by reference is considered to be a part of this
prospectus supplement, and information that we file later with the
SEC will automatically update and supersede information contained
in this prospectus supplement.
We incorporate by reference the documents listed below that we have
previously filed with the SEC:
| |
● |
our Annual Report on Form 10-K
for the year ended December 31, 2020, filed with the SEC on
March 23, 2021, as amended
on Form 10-K/A, filed with the SEC on May 17, 2021; |
| |
|
|
| |
● |
our Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2021,
filed with the SEC on May 11, 2021 and June 30, 2021,
filed with the SEC on August 10, 2021; |
| |
|
|
| |
● |
our Current Reports on Form 8-K dated
January 12, 2021, January 19, 2021, February 4, 2021 (other than
any portions thereof deemed furnished and not filed), March 16, 2021, March 17, 2021, April 16, 2021, April 23, 2021, April 28, 2021, May 26, 2021, June 3, 2021, July 1, 2021 (including Item
7.01), July 2, 2021, August 24, 2021, September 13, 2021, September 16, 2021, September 29, 2021, and October 7, 2021; |
| |
|
|
| |
● |
our definitive Proxy Statement on
Schedule 14A, filed with the SEC on April 23, 2021 (solely
with respect to those portions incorporated by reference into our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2020), as supplemented by the Proxy Supplement on Schedule 14A,
filed with the SEC on April 29, 2021; and |
| |
|
|
| |
● |
the
description of the Company’s common stock contained in the
Company’s Registration Statement on Form 8-A filed
with the SEC on June 1, 2015 under Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description. |
All reports and other documents (other than current reports
furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed in such forms that are related to such items unless such Form
8-K expressly provides to the contrary) we subsequently file
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of this offering, will also be
incorporated by reference in this prospectus supplement and deemed
to be part of this prospectus supplement from the date of the
filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus supplement shall be
deemed modified, superseded or replaced for purposes of this
prospectus supplement to the extent that a statement contained in
this prospectus supplement, or in any subsequently filed document
that also is deemed to be incorporated by reference in this
prospectus supplement, modifies, supersedes or replaces such
statement. Any statement so modified, superseded or replaced shall
not be deemed, except as so modified, superseded or replaced, to
constitute a part of this prospectus supplement. None of the
information that we disclose under Items 2.02 or 7.01 of any
Current Report on Form 8-K or any corresponding information, either
furnished under Item 9.01 or included as an exhibit therein, that
we may from time to time furnish to the SEC will be incorporated by
reference into, or otherwise included in, this prospectus
supplement, except as otherwise expressly set forth in the relevant
document. Subject to the foregoing, all information appearing in
this prospectus supplement is qualified in its entirety by the
information appearing in the documents incorporated by
reference.
PROSPECTUS
Timber Pharmaceuticals, Inc.
$100,000,000
Common Stock
Preferred Stock
Warrants
Subscription Rights
Units
We may offer, issue and sell from time to time together or
separately, in one or more offerings, any combination of
(i) our common stock, (ii) our preferred stock, which we
may issue in one or more series, (iii) warrants,
(iv) subscription rights and (v) units. The preferred
stock, warrants and subscription rights may be convertible into, or
exercisable or exchangeable for, common or preferred stock or other
securities of ours. The units may consist of any combination of the
securities listed above.
The aggregate public offering price of the securities that we may
offer will not exceed $100,000,000. We will offer the securities in
an amount and on terms that market conditions will determine at the
time of the offering. Our common stock is presently listed on The
NYSE American, LLC (the “NYSE American”) under the symbol “TMBR”.
On April 30, 2021, the last reported sale price of our Common
Stock on the NYSE American was $1.58 per share. Our common stock
has recently experienced extreme volatility in price and trading
volume. For example, on March 4, 2021 and March 11, 2021,
the closing price of our common stock on the NYSE American was
$1.66 and $3.55, respectively, and daily trading volume on these
days was approximately 3.5 million and 143.7 million shares,
respectively. During this period, there were no recent changes in
our financial condition or results of operations that were
consistent with the recent change in our stock price. Investors
that purchase shares of our common stock may lose a significant
portion of their investments if the price of our common stock
declines. Please see the section of this prospectus supplement
titled “Risk Factors.” Each prospectus supplement will indicate if
the securities offered thereby will be listed on any securities
exchange. You are urged to obtain current market quotations of our
common stock. We have no preferred stock, warrants, subscription
rights or units listed on any market. Each prospectus supplement
will indicate if the securities offered thereby will be listed on
any securities exchange.
Investing in our securities involves risk. You should carefully
consider the risks that we refer you to under the section captioned
“Risk Factors” in this prospectus on page 4 before buying our
securities.
Should we offer any of the securities described in this prospectus,
we will provide you with the specific terms of the particular
securities being offered in supplements to this prospectus. You
should read this prospectus and any supplement, together with
additional information described under the headings “Additional
Information” and “Incorporation of Certain Information by
Reference” carefully before you invest. This prospectus may not be
used to sell securities unless accompanied by a prospectus
supplement.
We may sell these securities directly to our stockholders or to
other purchasers or through agents on our behalf or through
underwriters or dealers as designated from time to time. If any
agents or underwriters are involved in the sale of any of these
securities, the applicable prospectus supplement will provide the
names of the agents or underwriters and any applicable fees,
commissions or discounts.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is May 11, 2021.
TABLE OF CONTENTS
Timber Pharmaceuticals, Inc. and its consolidated subsidiaries
are referred to herein as “Timber,” “the Company,” “we,” “us” and
“our,” unless the context indicates otherwise.
You may only rely on the information contained in this prospectus
or that we have referred you to. We have not authorized anyone to
provide you with different information. This prospectus does not
constitute an offer to sell or a solicitation of an offer to buy
any securities other than the securities offered by this
prospectus. This prospectus and any future prospectus supplement do
not constitute an offer to sell or a solicitation of an offer to
buy any securities in any circumstances in which such offer or
solicitation is unlawful. Neither the delivery of this prospectus
or any prospectus supplement nor any sale made hereunder shall,
under any circumstances, create any implication that there has been
no change in our affairs since the date of this prospectus or such
prospectus supplement or that the information contained by
reference to this prospectus or any prospectus supplement is
correct as of any time after its date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission, or SEC, using a
“shelf” registration process. Under this shelf registration
process, we may from time to time offer and sell, in one or more
offerings, any or all of the securities described in this
prospectus, separately or together, up to an aggregate offering
price of $100,000,000. This prospectus provides you with a general
description of our securities being offered. When we issue the
securities being offered by this prospectus, we will provide a
prospectus supplement (which term includes, as applicable, the
at-the-market sale agreement prospectus filed with the registration
statement of which this prospectus forms a part) that will contain
specific information about the terms of that offering. The
prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information
described under the heading “Additional Information” and
“Incorporation of Certain Information by Reference.”
PROSPECTUS
SUMMARY
The following summary highlights some information from this
prospectus. It is not complete and does not contain all of the
information that you should consider before making an investment
decision. You should read this entire prospectus, including the
“Risk Factors” section on page 4, the consolidated financial
statements and related notes and the other more detailed
information appearing elsewhere or incorporated by reference into
this prospectus.
The Company
We are a clinical-stage biopharmaceutical company focused on the
development and commercialization of treatments for orphan
dermatologic diseases. Our investigational therapies have proven
mechanisms-of-action backed by decades of clinical experience and
well-established CMC (chemistry, manufacturing and control) and
safety profiles. We are initially focused on developing
non-systemic treatments for rare dermatologic diseases including
congenital ichthyosis, facial angiofibromas (“FAs”) in tuberous
sclerosis complex (“TSC”), and scleroderma. Our lead programs are
TMB-001, TMB-002 and TMB-003.
TMB-001
TMB-001, a patented topical formulation of isotretinoin is
currently being evaluated in a Phase 2b clinical trial for the
treatment of moderate to severe subtypes of congenital ichthyosis
(“CI”), a group of rare genetic keratinization disorders that lead
to dry, thickened, and scaling skin. A prior Phase 1/2 study
involving 19 patients with CI demonstrated safety and a signal of
preliminary efficacy of TMB-001, as well as minimal systemic
absorption. In 2018, the FDA awarded us the first tranche of a $1.5
million grant in the amount of $500,000 to support clinical trials
evaluating TMB-001 through its Orphan Products Grant program. In
March 2020 and March 2021, the FDA awarded us the second
and third tranches of the grant, respectively, each in the amount
of $500,000.
On July 1, 2020, we announced that all 11 sites across the United
States and Australia in the Phase 2b CONTROL study evaluating
TMB-001 in patients with moderate to severe CI were enrolling
patients. As of December 31, 2020, all sites participating in a
Phase 2b clinical trial evaluating TMB-001 were opened and
enrolling patients. On March 15, 2021, we announced that 50% of
patients in the Phase 2b clinical trial have been enrolled. We
continue to anticipate topline data readout in Q3 for the Phase IIb
TMB-001 trial. We are currently evaluating the sample size,
including a potential reduction, in order to maintain forward
progress towards phase III.
On December 15, 2020, we announced that we had received a notice of
allowance from the U.S. Patent and Trademark Office (USPTO) for a
Company patent application covering TMB-001 (U.S. Patent
Application No.: 15/772,456) and the application subsequently
issued on February 10, 2021 as US 10,933,018.
On April 28, 2021, we announced that the Japanese Patent Office had
decided to grant a patent (No. 2018542677) for TMB-001.
TMB-002
TMB-002, a proprietary topical formulation of rapamycin is
currently being evaluated in a Phase 2b clinical trial for the
treatment of FAs in TSC, a multisystem genetic disorder resulting
in the growth of hamartomas in multiple organs. TSC results from
dysregulation in the mTOR pathway, and as a topical mTOR inhibitor,
TMB-002 may address FAs in TSC without the level of systemic
absorption of an oral agent.
The impact of the worldwide spread of a novel strain of coronavirus
(“COVID-19”) has been unprecedented and unpredictable. Site
activation and patient enrollment have been impacted by the
COVID-19 pandemic in the TMB-002 study, especially at our
contracted test sites in Eastern Europe. We are expecting that
there will be some delay to the completion of recruitment and in
the topline data readout for the TMB-002 program and we are
currently working with our partners and the sites to better qualify
this situation. We fully expect recruitment to be completed by the
end of Q3 2021. The Company is also continuing to assess the effect
of COVID-19 on the TMB-002 study as well as the Company’s overall
operations by monitoring the spread of COVID-19 and the actions
implemented to combat the virus throughout the world. The Company’s
assessment of the impact of COVID-19 may change in the future.
On March 17, 2021, we announced that AFT Pharmaceuticals Limited
(“AFT”), one of our development partners, entered into a license
and supply agreement with Desitin Arzneimittel GmbH (“Desitin”) for
Pascomer® (TMB-002 topical rapamycin) for the treatment of FAs
associated with TSC in Europe. Pursuant to the AFT Licensing and
Development Agreement, we are entitled to receive a significant
percentage of the economics (royalties and milestones) in any
licensing transaction that AFT executes outside of North America,
Australia, New Zealand, and Southeast Asia for licensing rights to
TMB-002. The current transaction with Desitin is included in the
scope of this provision.
TMB-003
TMB-003, a proprietary formulation of sitaxsentan, a new chemical
entity in the U.S., which is a selective endothelin-A receptor
antagonist, is currently in preclinical development as a locally
applied formulation for the treatment of scleroderma, a rare
connective tissue disorder characterized by abnormal thickening of
the skin.
On January 12, 2021, we announced that the FDA has granted orphan
drug designation for TMB-003, our locally delivered formulation of
Sitaxsentan, for the treatment of systemic sclerosis.
BPX-01 and BPX-04
Pursuant to the Merger Agreement (as defined below), BPX-01
(Topical Minocycline, 2%) and BPX-04 (Topical Minocycline, 1%) were
added to our portfolio. BPX-01 and BPX-04 are assets currently in
development for acne vulgaris and papulopustular rosacea,
respectively. On July 22, 2020, we announced that we had received
notice from the European Patent Office that it intends to grant a
patent for the Company’s topical composition of pharmaceutical
tetracycline (including minocycline) for dermatological use
(European Patent Application No. 16714168.8) and the application
subsequently issued on December 16, 2020 as EP 3273940. Patents
covering the BPX-01 and BPX-04 assets have previously been granted
in the United States, South Africa, and Australia, among other
countries. We are currently evaluating our strategic options
regarding these assets.
On September 15, 2020, we announced that we had received a notice
of allowance from the USPTO for a Company patent application
covering BPX-01 and BPX-04 (U.S. Patent Application No.:
16/514,459) and the application subsequently issued on January 5,
2021 as US 10,881,672.
The Merger, Reverse Stock Split and Name Change
On May 18, 2020, we completed our business combination with
Timber Sub, in accordance with the terms of the Agreement and Plan
of Merger and Reorganization, dated as of January 28, 2020, as
amended, by and among Timber, Timber Sub and BITI Merger Sub Inc.,
a wholly-owned subsidiary of Timber (“Merger Sub”) (the “Merger
Agreement”), pursuant to which Merger Sub merged with and into
Timber Sub, with Timber Sub surviving as a wholly owned subsidiary
of Timber (the “Merger”).
In connection with, and immediately prior to the completion of, the
Merger, we effected a reverse stock split of our Common Stock, at a
ratio of 1-for-12 (the “Reverse Stock Split”). Under the terms of
the Merger Agreement, after taking into account the Reverse Stock
Split, we issued shares of Common Stock to Timber Sub’s unitholders
at an exchange rate of 629.57 shares of Common Stock for each
Timber Sub common unit outstanding immediately prior to the Merger.
In connection with the Merger, we changed our name from “BioPharmX
Corporation” to “Timber Pharmaceuticals, Inc.,” and the
business conducted by the Company became the business conducted by
Timber Sub.
Private Placement of Common Stock and Warrants
On May 18, 2020, Timber and Timber Sub completed a private
placement transaction (the “Pre-Merger Financing”) with the
Investors pursuant to the Securities Purchase Agreement for an
aggregate purchase price of approximately $25.0 million (comprised
of (i) approximately $5 million credit with respect to the
senior secured notes issued in connection with the bridge loan that
certain of the Investors made to Timber Sub at the time of the
execution of the Merger Agreement and (ii) approximately $20
million in cash from the Investors).
Pursuant to the Pre-Merger Financing, (i) Timber Sub issued
and sold to the Investors common units of Timber Sub which
converted pursuant to the exchange ratio in the Merger into an
aggregate of approximately 4,137,509 shares (the “Converted
Shares”) of Common Stock; and (ii) the Company agreed to issue
to each Investor, on the tenth trading day following the
consummation of the Merger, (A) Series A Warrants
representing the right to acquire shares of Common Stock equal to
75% of the sum of (a) the number of Converted Shares issued to
the Investor, without giving effect to any limitation on delivery
contained in the Securities Purchase Agreement, and (b) the
number of shares of Common Stock underlying the Series B
Warrants issued to the Investor (the “Series B Warrants”) and
(B) the Series B Warrants. On June 2, 2020, pursuant
to the terms of the Securities Purchase Agreement, the Company
issued the Series A Warrants and the Series B
Warrants.
In addition, pursuant to the terms of the Securities Purchase
Agreement, dated as of January 28, 2020 between Timber Sub and
several of the Investors, the Company issued to such purchasers, on
May 22, 2020, warrants to purchase 413,751 shares of Common
Stock (the “Bridge Warrants”) which have an exercise price of
$2.2362 per share.
Pursuant to the Waiver Agreements we entered into with the Selling
Stockholders on November 19, 2020, (A) the exercise price
of the Series A Warrants was definitively set at $1.16 per
share, (B) the number of shares underlying all of the
Series A Warrants was definitively set at 20,178,214 and
(C) the number of shares underlying all of the Series B
Warrants was definitively set at 22,766,776. As of
March 4, 2021, all Series B Warrants had been exercised
in full.
Corporate Information
Our principal offices are located at 110 Allen Road,
Suite 401, Basking Ridge, NJ, and our telephone number is
(908) 636-7160. Our website address is www.timberpharma.com. Our
website and the information contained on, or that can be accessed
through, our website shall not be deemed to be incorporated by
reference in, and are not considered part of, this prospectus. You
should not rely on any such information in making your decision
whether to purchase our Common Stock.
RISK FACTORS
Before purchasing any of the securities you should carefully
consider the risk factors set forth below and incorporated by
reference in this prospectus from our Annual Report on
Form 10-K for the fiscal year ended December 31, 2020 and
any subsequent updates described in our Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K, as well as the
risks, uncertainties and additional information set forth in our
SEC reports on Forms 10-K, 10-Q and 8-K and in the other documents
incorporated by reference in this prospectus. For a description of
these reports and documents, and information about where you can
find them, see “Additional Information” and “Incorporation of
Certain Information By Reference.” Additional risks not presently
known or that we presently consider to be immaterial could
subsequently materially and adversely affect our financial
condition, results of operations, business and prospects.
The market price of our common stock has been extremely
volatile and may continue to be volatile due to numerous
circumstances beyond our control.
The market price of our common stock has fluctuated, and may
continue to fluctuate, widely, due to many factors, some of which
may be beyond our control. These factors include, without
limitation:
|
· |
comments by securities analysts or
other third parties, including blogs, articles, message boards and
social and other media; |
|
· |
large stockholders exiting their
position in our common stock or an increase or decrease in the
short interest in our common stock; |
|
· |
actual or anticipated fluctuations
in our financial and operating results; |
|
· |
risks and uncertainties associated
with the ongoing COVID-19 pandemic; |
|
· |
the timing and allocations of new
product candidates; |
|
· |
public perception of our product
candidates and competitive products; and |
|
· |
overall general market
fluctuations. |
Stock markets in general and our stock price in particular have
experienced extreme price and volume fluctuations that have often
been unrelated or disproportionate to the operating performance of
those companies and our company. Our common stock has recently
experienced extreme volatility in price and trading volume. For
example, on March 4, 2021 and March 11, 2021, the closing
price of our common stock on the NYSE American was $1.66 and $3.55,
respectively, and daily trading volume on these days was
approximately 3.5 million and 143.7 million shares, respectively.
During this period, there were no recent changes in our financial
condition or results of operations that were consistent with the
change in our stock price. In particular, a proportion of our
common stock has been and may continue to be traded by short
sellers which may put pressure on the supply and demand for our
common stock, further influencing volatility in its market price.
Additionally, these and other external factors have caused and may
continue to cause the market price and demand for our common stock
to fluctuate, which may limit or prevent investors from readily
selling their shares of common stock and may otherwise negatively
affect the liquidity of our common stock.
A “short squeeze” due to a sudden increase in demand for
shares of our common stock that largely exceeds supply could lead
to extreme price volatility in shares of our common
stock.
Investors may purchase shares of our common stock to hedge existing
exposure or to speculate on the price of our common stock.
Speculation on the price of our common stock may involve long and
short exposures. To the extent aggregate short exposure exceeds the
number of shares of our common stock available for purchase on the
open market, investors with short exposure may have to pay a
premium to repurchase shares of our common stock for delivery to
lenders of our common stock. Those repurchases may in turn,
dramatically increase the price of our common stock until
additional shares of our common stock are available for trading or
borrowing. This is often referred to as a “short squeeze.” A
proportion of our common stock has been and may continue to be
traded by short sellers which may increase the likelihood that our
common stock will be the target of a short squeeze. A short squeeze
could lead to volatile price movements in shares of our common
stock that are unrelated or disproportionate to our operating
performance or prospectus and, once investors purchase the shares
of our common stock necessary to cover their short positions, the
price of our common stock may rapidly decline. Investors that
purchase shares of our common stock during a short squeeze may lose
a significant portion of their investment.
Enrollment and retention of patients in clinical trials is an
expensive and time-consuming process and could be made more
difficult or rendered impossible by multiple factors outside our
control.
We may encounter delays or difficulties in enrolling, or be unable
to enroll, a sufficient number of patients to complete any of our
clinical trials on its current timelines, or at all, and even once
enrolled we may be unable to retain a sufficient number of patients
to complete any of our trials. Enrollment in our clinical trials
may be slower than we anticipate, leading to delays in our
development timelines. For example, due to the COVID-19 pandemic,
we have experienced delays to the completion of recruitment and in
the topline data readout for the TMB-002 program and we are
currently working with our partners and the sites regarding the
extent of such delays. We anticipate recruitment to be completed by
the end of the third quarter of 2021. Further, we may face
additional difficulties enrolling or maintaining a sufficient
number of patients in our clinical trials due to the existing
alternative treatments approved for the treatment of any of our
targeted indications, such as topical corticosteroids or topical
steroid-free therapies for atopic dermatitis or psoriasis, as
patients may decline to enroll or decide to withdraw from our
clinical trials due to the risk of receiving placebo. Patient
enrollment and retention in clinical trials depends on many
factors, including the size of the patient population, the nature
of the trial protocol, our ability to recruit clinical trial
investigators with the appropriate competencies and experience, the
existing body of safety and efficacy data with respect to the study
drug, the number and nature of competing treatments and ongoing
clinical trials of competing drugs for the same indication, the
proximity of patients to clinical sites, the eligibility criteria
for the trial and the proportion of patients screened that meets
those criteria, our ability to obtain and maintain patient
consents, and our ability to successfully complete prerequisite
studies before enrolling certain patient populations.
Furthermore, any negative results or new safety signals we may
report in clinical trials of our product candidates may make it
difficult or impossible to recruit and retain patients in other
clinical trials. Similarly, negative results reported by our
competitors about their drug candidates may negatively affect
patient recruitment in our clinical trials. Also, marketing
authorization of competitors in this same class of drugs may impair
our ability to enroll patients into our clinical trials, delaying
or potentially preventing it from completing recruitment of one or
more of our trials.
Delays or failures in planned patient enrollment or retention may
result in increased costs, program delays or both, which could have
a harmful effect on our ability to develop our product candidates
or could render further development impossible. In addition, we
expect to rely on CROs and clinical trial sites to ensure proper
and timely conduct of our future clinical trials, and, while we
intend to enter into agreements governing their services, we will
be limited in our ability to compel their actual performance.
FORWARD-LOOKING
STATEMENTS
This prospectus, including the documents that we incorporate by
reference, contains forward-looking statements as that term is
defined in the federal securities laws. The events described in
forward-looking statements contained in this prospectus, including
the documents that we incorporate by reference, may not occur.
Generally, these statements relate to our business plans or
strategies, projected or anticipated benefits or other consequences
of our plans or strategies, financing plans, projected or
anticipated benefits from acquisitions that we may make, or
projections involving anticipated revenues, earnings or other
aspects of our operating results or financial position, and the
outcome of any contingencies. Any such forward-looking statements
are based on current expectations, estimates and projections of
management. We intend for these forward-looking statements to be
covered by the safe-harbor provisions for forward-looking
statements. Words such as “may,” “expect,” “believe,” “anticipate,”
“project,” “plan,” “intend,” “estimate,” and “continue,” and their
opposites and similar expressions are intended to identify
forward-looking statements. We caution you that these statements
are not guarantees of future performance or events and are subject
to a number of uncertainties, risks and other influences, many of
which are beyond our control that may influence the accuracy of the
statements and the projections upon which the statements are based.
Factors that may affect our results include, but are not limited
to, the risks and uncertainties discussed in the “Risk Factors”
section on page 3 of this prospectus, in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2020 or
in other reports we file with the Securities and Exchange
Commission.
Any one or more of these uncertainties, risks and other influences
could materially affect our results of operations and whether
forward-looking statements made by us ultimately prove to be
accurate. Our actual results, performance and achievements could
differ materially from those expressed or implied in these
forward-looking statements. We undertake no obligation to publicly
update or revise any forward-looking statements, whether from new
information, future events or otherwise.
You should rely only on the information in this prospectus. We have
not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely upon it.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement
relating to a particular offering of securities, we will use the
net proceeds from the sale of the securities offered by this
prospectus and the exercise price from the exercise of any
convertible securities, if any, for working capital and other
general corporate purposes, which may include funding acquisitions
or investments in businesses, products or technologies that are
complementary to our own and reducing indebtedness.
When particular securities are offered, the prospectus supplement
relating to that offering will set forth our intended use of the
net proceeds received from the sale of those securities we sell.
Pending the application of the net proceeds for these purposes, we
expect to invest the proceeds in short-term, interest-bearing
instruments or other investment-grade securities.
THE SECURITIES WE
MAY OFFER
General
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize all
of the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable
prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement. If
we indicate in the applicable prospectus supplement, the terms of
the securities may differ from the terms we have summarized below.
We may also include in the prospectus supplement information about
material United States federal income tax considerations relating
to the securities, and the securities exchange, if any, on which
the securities will be listed.
We may sell from time to time, in one or more offerings:
| |
● |
common
stock; |
| |
|
|
| |
● |
preferred
stock; |
| |
|
|
| |
● |
subscription
rights to purchase shares of common stock or preferred
stock; |
| |
|
|
| |
● |
warrants
to purchase shares of common stock or preferred stock;
and |
| |
|
|
| |
● |
units
consisting of any combination of the securities listed
above. |
In this prospectus, we refer to the common stock, preferred stock,
subscription rights, warrants and units collectively as
“securities.” The total dollar amount of all securities that we may
sell pursuant to this prospectus will not exceed $100,000,000.
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL
STOCK
General
We are authorized to issue up to 460,000,000 shares of capital
stock, including 450,000,000 shares of Common Stock, par value
$0.001 per share, and 10,000,000 shares of undesignated preferred
stock, no par value, as to which 2,500 shares have been designated
as Series A Preferred Stock. As of April 26, 2021, we had
36,659,685 shares of Common Stock and 1,819 shares of preferred
stock issued and outstanding.
The additional shares of our authorized stock available for
issuance may be issued at times and under circumstances so as to
have a dilutive effect on earnings per share and on the equity
ownership of the holders of our Common Stock. The ability of our
board of directors to issue additional shares of stock could
enhance the board’s ability to negotiate on behalf of the
stockholders in a takeover situation but could also be used by the
board to make a change-in-control more difficult, thereby denying
stockholders the potential to sell their shares at a premium and
entrenching current management. The following description is a
summary of the material provisions of our capital stock. You should
refer to our certificate of incorporation, as amended and bylaws,
both of which are on file with the SEC as exhibits to previous SEC
filings, for additional information. The summary below is qualified
by provisions of applicable law.
Common Stock
Subject to preferences that may apply to any shares of preferred
stock outstanding at the time, the holders of our Common Stock are
entitled to receive dividends out of funds legally available if our
board of directors, in its discretion, determines to issue
dividends and then only at the times and in the amounts that our
board of directors may determine. Holders of our Common Stock
are entitled to one vote for each share held on all matters
submitted to a vote of stockholders. We have not provided for
cumulative voting for any matter in our certificate of
incorporation. Accordingly, pursuant to our certificate of
incorporation, holders of a majority of the shares of our Common
Stock will be able to elect all of our directors. Our Common Stock
is not entitled to preemptive rights, and is not subject to
conversion, redemption or sinking fund provisions. Upon our
liquidation, dissolution or winding-up, the assets legally
available for distribution to our stockholders would be
distributable ratably among the holders of our Common Stock and any
participating preferred stock outstanding at that time, subject to
prior satisfaction of all outstanding debt and liabilities and the
preferential rights of and the payment of liquidation preferences,
if any, on any outstanding shares of preferred stock. As of
April 26, 2021, we had outstanding options to purchase an
aggregate of 200,237 shares of our Common Stock, with a
weighted-average exercise price of $8.58 per share. As of
April 26, 2021, there were Value Appreciation Rights payable
in 367,670 shares of Common Stock. As of April 26, 2021,
we had outstanding warrants to purchase an aggregate of 17,329,621
shares of our Common Stock, with a weighted-average exercise price
of $2.25 per share.
In connection with our September 2016 public offering of
warrants, or the 2016 Warrants, to Roth Capital Partners and
certain designees of Rodman & Renshaw, a unit of H.C.
Wainwright & Co., LLC, the holders of Common Stock
underlying such warrants were entitled to rights with respect to
the registration of such shares under the Securities Act. In
January 2017, we issued additional warrants, or the 2017
Warrants, to Rodman & Renshaw pursuant to a letter
agreement. In August 2017, a shelf registration statement with
respect to the 2016 Warrants and the 2017 Warrants was filed and
declared effective by the SEC. We are required to use commercially
reasonable efforts to cause such registration statement to remain
continuously effective for a period that will terminate upon the
earlier of (i) the date on which all such Common Stock has
been disposed of pursuant to such registration statement, or
(ii) the date on which all such Common Stock is sold in a
transaction that is exempt from registration pursuant to
Rule 144 or a transaction in which such selling stockholders’
rights under the registration rights agreement are not assigned;
provided, however, that such requirement shall not apply during any
period in which all the shares of Common Stock then outstanding and
held by selling stockholders may be sold under Rule 144
without restriction, including volume limitations or manner of sale
restrictions.
Preferred Stock
We are authorized to issue up to 10,000,000 shares of preferred
stock, as to which 2,500 is designated as Series A Preferred
Stock and the remainder of which are undesignated. As of
April 26, 2021, 1,819 shares of our Series A Preferred
Stock are issued, outstanding and currently redeemable at the
option of the Series A Preferred Stock holder and no such
shares were subject to outstanding options or other rights to
purchase or acquire. Redemption is subject to certain limitations
under Delaware law, so that our ability to pay the redemption price
to such holder is or may be limited. Our board of directors has the
authority to issue preferred stock in one or more classes or series
and to fix the designations, powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, including
dividend rights, conversion right, voting rights, terms of
redemption, liquidation preferences and the number of shares
constituting any class or series, without further vote or action by
the stockholders. Although we have no present plans to issue any
other shares of preferred stock, the issuance of shares of
preferred stock, or the issuance of rights to purchase such shares,
could decrease the amount of earnings and assets available for
distribution to the holders of common stock, could adversely affect
the rights and powers, including voting rights, of the common
stock, and could have the effect of delaying, deterring or
preventing a change of control of us or an unsolicited acquisition
proposal. The preferred stock may provide for an adjustment of the
conversion price in the event of an issuance or deemed issuance at
a price less than the applicable conversion price, subject to
certain exceptions.
Future Issuance of Preferred Stock
If we offer a specific series of preferred stock under this
prospectus, we will describe the terms of the preferred stock in
the prospectus supplement for such offering and will file a copy of
the certificate establishing the terms of the preferred stock with
the SEC. To the extent required, this description will include:
| |
● |
the
title and stated value; |
| |
|
|
| |
● |
the
number of shares offered, the liquidation preference per share and
the purchase price; |
| |
|
|
| |
● |
the
dividend rate(s), period(s) and/or payment date(s), or
method(s) of calculation for such dividends; |
| |
|
|
| |
● |
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate; |
| |
● |
the
procedures for any auction and remarketing, if any; |
| |
|
|
| |
● |
the
provisions for a sinking fund, if any; |
| |
|
|
| |
● |
the
provisions for redemption, if applicable; |
| |
|
|
| |
● |
any
listing of the preferred stock on any securities exchange or
market; |
| |
|
|
| |
● |
whether
the preferred stock will be convertible into our common stock, and,
if applicable, the conversion price (or how it will be calculated)
and conversion period; |
| |
|
|
| |
● |
voting
rights, if any, of the preferred stock; |
| |
|
|
| |
● |
a
discussion of any material and/or special U.S. federal income tax
considerations applicable to the preferred stock; |
| |
|
|
| |
● |
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of our affairs; and |
| |
|
|
| |
● |
any
material limitations on issuance of any class or series of
preferred stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs. |
Transfer Agent and Registrar for Preferred Stock
The transfer agent and registrar for any series or class of
preferred stock will be set forth in each applicable prospectus
supplement.
Anti-takeover Effects of Delaware Law and our Certificate of
Incorporation, as amended
The provisions of Delaware law, our certificate of incorporation
and our bylaws described below may have the effect of delaying,
deferring or discouraging another party from acquiring control of
us.
Section 203 of the Delaware General Corporation Law
Our Certificate of Incorporation, as amended, and Bylaws, as
amended, contain provisions that could have the effect of
discouraging potential acquisition proposals or tender offers or
delaying or preventing a change of control. These provisions are as
follows:
| |
● |
they
provide that special meetings of stockholders may be called only by
a majority of our board of directors or an officer instructed by
the directors to call a special meeting, thus prohibiting a
stockholder from calling a special meeting; |
| |
|
|
| |
● |
they
authorize our board of directors to fill vacant directorships,
including newly created seats; |
| |
|
|
| |
● |
they
can be amended or repealed by unanimous written consent of our
board of directors; |
| |
● |
they
do not include a provision for cumulative voting in the election of
directors. Under cumulative voting, a minority stockholder holding
a sufficient number of shares may be able to ensure the election of
one or more directors. The absence of cumulative voting may have
the effect of limiting the ability of minority stockholders to
effect changes in our board of directors; and |
| |
|
|
| |
● |
they
allow us to issue, without stockholder approval, up to 10,000,000
shares of preferred stock that could adversely affect the rights
and powers of the holders of our Common Stock. |
We are subject to the provisions of Section 203 of the
Delaware General Corporation Law, an anti-takeover law. Subject to
certain exceptions, the statute prohibits a publicly held Delaware
corporation from engaging in a “business combination” with an
“interested stockholder” for a period of three years after the date
of the transaction in which the person became an interested
stockholder unless:
| |
● |
prior
to such date, the board of directors of the corporation approved
either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder; |
| |
|
|
| |
● |
upon
consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least eighty-five percent 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (1) by persons who are
directors and also officers and (2) by employee stock plans in
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or |
| |
|
|
| |
● |
on or
after such date, the business combination is approved by the board
of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least sixty-six and two-thirds percent 66 2/3% of the
outstanding voting stock that is not owned by the interested
stockholder. |
Generally, for purposes of Section 203, a “business
combination” includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested
stockholder. An “interested stockholder” is a person who, together
with affiliates and associates, owns or, within three
(3) years prior to the determination of interested stockholder
status, owned fifteen percent (15%) or more of a corporation’s
outstanding voting securities.
Potential Effects of Authorized but Unissued Stock
We have shares of common stock and preferred stock available for
future issuance without stockholder approval. We may utilize these
additional shares for a variety of corporate purposes, including
future public offerings to raise additional capital, to facilitate
corporate acquisitions or payment as a dividend on the capital
stock.
The existence of unissued and unreserved common stock and preferred
stock may enable our board of directors to issue shares to persons
friendly to current management or to issue preferred stock with
terms that could render more difficult or discourage a third-party
attempt to obtain control of us by means of a merger, tender offer,
proxy contest or otherwise, thereby protecting the continuity of
our management. In addition, the board of directors has the
discretion to determine designations, rights, preferences,
privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation
preferences of each series of preferred stock, all to the fullest
extent permissible under the Delaware General Corporation Law and
subject to any limitations set forth in our certificate of
incorporation. The purpose of authorizing the board of directors to
issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays
associated with a stockholder vote on specific issuances. The
issuance of preferred stock, while providing desirable flexibility
in connection with possible financings, acquisitions and other
corporate purposes, could have the effect of making it more
difficult for a third-party to acquire, or could discourage a
third-party from acquiring, a majority of our outstanding voting
stock.
DESCRIPTION OF STOCK
WARRANTS
We summarize below some of the provisions that will apply to the
warrants unless the applicable prospectus supplement provides
otherwise. This summary may not contain all information that is
important to you. The complete terms of the warrants will be
contained in the applicable warrant certificate and warrant
agreement. These documents have been or will be included or
incorporated by reference as exhibits to the registration statement
of which this prospectus is a part. You should read the warrant
certificate and the warrant agreement. You should also read the
prospectus supplement, which will contain additional information
and which may update or change some of the information below.
General
We may issue, together with common or preferred stock as units or
separately, warrants for the purchase of shares of our common or
preferred stock. The terms of each warrant will be discussed in the
applicable prospectus supplement relating to the particular series
of warrants. The form(s) of certificate representing the
warrants and/or the warrant agreement will be, in each case, filed
with the SEC as an exhibit to a document incorporated by reference
in the registration statement of which this prospectus is a part on
or prior to the date of any prospectus supplement relating to an
offering of the particular warrant. The following summary of
material provisions of the warrants and the warrant agreements are
subject to, and qualified in their entirety by reference to, all
the provisions of the warrant agreement and warrant certificate
applicable to a particular series of warrants.
The prospectus supplement relating to any series of warrants that
are offered by this prospectus will describe, among other things,
the following terms to the extent they are applicable to that
series of warrants:
| |
● |
the
procedures and conditions relating to the exercise of the
warrants; |
| |
|
|
| |
● |
the
number of shares of our common or preferred stock, if any, issued
with the warrants; |
| |
|
|
| |
● |
the
date, if any, on and after which the warrants and any related
shares of our common or preferred stock will be separately
transferable; |
| |
|
|
| |
● |
the
offering price of the warrants, if any; |
| |
|
|
| |
● |
the
number of shares of our common or preferred stock which may be
purchased upon exercise of the warrants and the price or prices at
which the shares may be purchased upon exercise; |
| |
|
|
| |
● |
the
date on which the right to exercise the warrants will begin and the
date on which the right will expire; |
| |
|
|
| |
● |
a
discussion of the material United States federal income tax
considerations applicable to the exercise of the
warrants; |
| |
|
|
| |
● |
anti-dilution
provisions of the warrants, if any; |
| |
|
|
| |
● |
call
provisions of the warrants, if any; and |
| |
|
|
| |
● |
any
other material terms of the warrants. |
Each warrant may entitle the holder to purchase for cash, or, in
limited circumstances, by effecting a cashless exercise for, the
number of shares of our common or preferred stock at the exercise
price that is described in the applicable prospectus supplement.
Warrants will be exercisable during the period of time described in
the applicable prospectus supplement. After that period,
unexercised warrants will be void. Warrants may be exercised in the
manner described in the applicable prospectus supplement.
A holder of a warrant will not have any of the rights of a holder
of our common or preferred stock before the stock is purchased upon
exercise of the warrant. Therefore, before a warrant is exercised,
the holder of the warrant will not be entitled to receive any
dividend payments or exercise any voting or other rights associated
with shares of our common or preferred stock which may be purchased
when the warrant is exercised.
Transfer Agent and Registrar
The transfer agent and registrar, if any, for any warrants will be
set forth in the applicable prospectus supplement.
DESCRIPTION OF SUBSCRIPTION
RIGHTS
We may issue subscription rights to purchase our common stock or
preferred stock. These subscription rights may be offered
independently or together with any other security offered hereby
and may or may not be transferable by the stockholder receiving the
subscription rights in such offering. In connection with any
offering of subscription rights, we may enter into a standby
arrangement with one or more underwriters or other purchasers
pursuant to which the underwriters or other purchasers may be
required to purchase any securities remaining unsubscribed for
after such offering.
The prospectus supplement relating to any subscription rights we
offer, if any, will, to the extent applicable, include specific
terms relating to the offering, including some or all of the
following:
| |
● |
the
price, if any, for the subscription rights; |
| |
● |
the
exercise price payable for our common stock or preferred stock upon
the exercise of the subscription rights; |
| |
|
|
| |
● |
the
number of subscription rights to be issued to each
stockholder; |
| |
|
|
| |
● |
the
number and terms of our common stock or preferred stock which may
be purchased per each subscription right; |
| |
|
|
| |
● |
the
extent to which the subscription rights are
transferable; |
| |
|
|
| |
● |
any
other terms of the subscription rights, including the terms,
procedures and limitations relating to the exchange and exercise of
the subscription rights; |
| |
|
|
| |
● |
the
date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall
expire; |
| |
|
|
| |
● |
the
extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed securities
or an over-allotment privilege to the extent the securities are
fully subscribed; and |
| |
|
|
| |
● |
if
applicable, the material terms of any standby underwriting or
purchase arrangement which may be entered into by us in connection
with the offering of subscription rights. |
DESCRIPTION OF UNITS
We may issue units comprised of one or more of the other securities
described in this prospectus in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have
the rights and obligations of a holder of each included security
(but, to the extent convertible securities are included in the
units, the holder of the units will be deemed the holder of the
convertible securities and not the holder of the underlying
securities). The unit agreement under which a unit is issued, if
any, may provide that the securities included in the unit may not
be held or transferred separately, at any time or at any time
before a specified date. The applicable prospectus supplement may
describe:
| |
● |
the
designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately; |
| |
|
|
| |
● |
any
provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the
units; |
| |
● |
the
terms of the unit agreement governing the units; |
| |
|
|
| |
● |
United
States federal income tax considerations relevant to the units;
and |
| |
|
|
| |
● |
whether
the units will be issued in fully registered global
form. |
This summary of certain general terms of units and any summary
description of units in the applicable prospectus supplement do not
purport to be complete and are qualified in their entirety by
reference to all provisions of the applicable unit agreement and,
if applicable, collateral arrangements and depositary arrangements
relating to such units. The forms of the unit agreements and other
documents relating to a particular issue of units will be filed
with the SEC each time we issue units, and you should read those
documents for provisions that may be important to you.
FORMS OF SECURITIES
Each warrant, subscription right and unit, will be represented
either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in registered
form. Definitive securities name you or your nominee as the owner
of the security, and in order to transfer or exchange these
securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver the
securities to the trustee, registrar, paying agent or other agent,
as applicable. Global securities name a depositary or its nominee
as the owner of the warrants represented by these global
securities. The depositary maintains a computerized system that
will reflect each investor’s beneficial ownership of the securities
through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we
explain more fully below.
Global Securities
Registered
Global Securities. We may issue the registered warrants,
subscription rights and units, in the form of one or more fully
registered global securities that will be deposited with a
depositary or its nominee identified in the applicable prospectus
supplement and registered in the name of that depositary or
nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not be
transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by a
registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security
will be limited to persons, called participants, that have accounts
with the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the respective
principal or face amounts of the securities beneficially owned by
the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts
to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership
interests will be effected only through, records maintained by the
depositary, with respect to interests of participants, and on the
records of participants, with respect to interests of persons
holding through participants. The laws of some states may require
that some purchasers of securities take physical delivery of these
securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered
global securities.
So long as the depositary, or its nominee, is the registered owner
of a registered global security, that depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the
securities represented by the registered global security for all
purposes under the applicable indenture or warrant agreement.
Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the
securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
applicable indenture or warrant agreement. Accordingly, each person
owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the
procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable
indenture or warrant agreement. We understand that under existing
industry practices, if we request any action of holders or if an
owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to
give or take under the applicable indenture or warrant agreement,
the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Any payments to holders with respect to warrants represented by a
registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global
security. None of the Company, the trustees, the warrant agents or
any other agent of the Company, the trustees or the warrant agents
will have any responsibility or liability for any aspect of the
records relating to payments made on account of beneficial
ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to those
beneficial ownership interests.
We expect that the depositary for any of the securities represented
by a registered global security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying
securities or other property to holders on that registered global
security, will immediately credit participants’ accounts in amounts
proportionate to their respective beneficial interests in that
registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners
of beneficial interests in a registered global security held
through participants will be governed by standing customer
instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in “street name,” and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, or the
Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90
days, we will issue securities in definitive form in exchange for
the registered global security that had been held by the
depositary. Any securities issued in definitive form in exchange
for a registered global security will be registered in the name or
names that the depositary gives to the relevant trustee or warrant
agent or other relevant agent of ours or theirs. It is expected
that the depositary’s instructions will be based upon directions
received by the depositary from participants with respect to
ownership of beneficial interests in the registered global security
that had been held by the depositary.
PLAN OF
DISTRIBUTION
Initial Offering and Sale of Securities
Unless otherwise set forth in a prospectus supplement accompanying
this prospectus, we may sell the securities being offered hereby,
from time to time, by one or more of the following methods:
| |
● |
to or
through underwriting syndicates represented by managing
underwriters; |
| |
|
|
| |
● |
through
one or more underwriters without a syndicate for them to offer and
sell to the public; |
| |
|
|
| |
● |
through
dealers or agents; and |
| |
|
|
| |
● |
to
investors directly in negotiated sales or in competitively bid
transactions. |
Offerings of securities covered by this prospectus also may be made
into an existing trading market for those securities in
transactions at other than a fixed price, either:
| |
● |
on or
through the facilities of the NYSE American or any other securities
exchange or quotation or trading service on which those securities
may be listed, quoted, or traded at the time of sale;
and/or |
| |
|
|
| |
● |
to or
through a market maker other than on the securities exchanges or
quotation or trading services set forth above. |
Those at-the-market offerings, if any, will be conducted by
underwriters acting as principal or agent of the Company, who may
also be third-party sellers of securities as described above. The
prospectus supplement with respect to the offered securities will
set forth the terms of the offering of the offered securities,
including:
| |
● |
the
name or names of any underwriters, dealers or agents; |
| |
|
|
| |
● |
the
purchase price of the offered securities and the proceeds to us
from such sale; |
| |
● |
any
underwriting discounts and commissions or agency fees and other
items constituting underwriters’ or agents’
compensation; |
| |
|
|
| |
● |
any
initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; |
| |
|
|
| |
● |
any
securities exchange on which such offered securities may be listed;
and |
| |
|
|
| |
● |
any
underwriter, agent or dealer involved in the offer and sale of any
series of the securities. |
The distribution of the securities may be effected from time to
time in one or more transactions:
| |
● |
at
fixed prices, which may be changed; |
| |
|
|
| |
● |
at
market prices prevailing at the time of the sale; |
| |
|
|
| |
● |
at
varying prices determined at the time of sale; or |
| |
|
|
| |
● |
at
negotiated prices. |
Each prospectus supplement will set forth the manner and terms of
an offering of securities including:
| |
● |
whether
that offering is being made to underwriters, through agents or
directly to the public; |
| |
|
|
| |
● |
the
rules and procedures for any auction or bidding process, if
used; |
| |
|
|
| |
● |
the
securities’ purchase price or initial public offering price;
and |
| |
|
|
| |
● |
the
proceeds we anticipate from the sale of the securities, if
any. |
In addition, we may enter into derivative or hedging transactions
with third parties, or sell securities not covered by this
prospectus to third parties in privately negotiated transactions.
The applicable prospectus supplement may indicate, in connection
with such a transaction, that the third parties may sell securities
covered by and pursuant to this prospectus and an applicable
prospectus supplement. If so, the third party may use securities
pledged by us or borrowed from us or others to settle such sales
and may use securities received from us to close out any related
short positions. We may also loan or pledge securities covered by
this prospectus and an applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and the applicable prospectus
supplement.
Sales Through Underwriters
If underwriters are used in the sale of some or all of the
securities covered by this prospectus, the underwriters will
acquire the securities for their own account. The underwriters may
resell the securities, either directly to the public or to
securities dealers, at various times in one or more transactions,
including negotiated transactions, at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to certain conditions. Unless indicated otherwise in a
prospectus supplement, the underwriters will be obligated to
purchase all the securities of the series offered if any of the
securities are purchased.
Any initial public offering price and any concessions allowed or
reallowed to dealers may be changed intermittently.
Sales Through Agents
Unless otherwise indicated in the applicable prospectus supplement,
when securities are sold through an agent, the designated agent
will agree, for the period of its appointment as agent, to use
specified efforts to sell the securities for our account and will
receive commissions from us as will be set forth in the applicable
prospectus supplement.
Securities bought in accordance with a redemption or repayment
under their terms also may be offered and sold, if so indicated in
the applicable prospectus supplement, in connection with a
remarketing by one or more firms acting as principals for their own
accounts or as agents for us. Any remarketing firm will be
identified and the terms of its agreement, if any, with us and its
compensation will be described in the prospectus supplement.
Remarketing firms may be deemed to be underwriters in connection
with the securities remarketed by them.
If so indicated in the applicable prospectus supplement, we may
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase securities at a price
set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date
specified in the prospectus supplement. These contracts will be
subject only to those conditions set forth in the applicable
prospectus supplement, and the prospectus supplement will set forth
the commissions payable for solicitation of these contracts.
Direct Sales
We may also sell offered securities directly to institutional
investors or others. In this case, no underwriters or agents would
be involved. The terms of such sales will be described in the
applicable prospectus supplement.
General Information
Broker-dealers, agents or underwriters may receive compensation in
the form of discounts, concessions or commissions from us and/or
the purchasers of securities for whom such broker-dealers, agents
or underwriters may act as agents or to whom they sell as
principal, or both. This compensation to a particular broker-dealer
might be in excess of customary commissions.
Underwriters, dealers and agents that participate in any
distribution of the offered securities may be deemed “underwriters”
within the meaning of the Securities Act of 1933, as amended, or
the Securities Act, so any discounts or commissions they receive in
connection with the distribution may be deemed to be underwriting
compensation. Those underwriters and agents may be entitled, under
their agreements with us, to indemnification by us against certain
civil liabilities, including liabilities under the Securities Act,
or to contribution by us to payments that they may be required to
make in respect of those civil liabilities. Certain of those
underwriters or agents may be customers of, engage in transactions
with, or perform services for, us or our affiliates in the ordinary
course of business. We will identify any underwriters or agents,
and describe their compensation, in a prospectus supplement. Any
institutional investors or others that purchase offered securities
directly, and then resell the securities, may be deemed to be
underwriters, and any discounts or commissions received by them
from us and any profit on the resale of the securities by them may
be deemed to be underwriting discounts and commissions under the
Securities Act.
We will file a supplement to this prospectus, if required, pursuant
to Rule 424(b) under the Securities Act, if we enter into
any material arrangement with a broker, dealer, agent or
underwriter for the sale of securities through a block trade,
special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer. Such prospectus supplement
will disclose:
| |
● |
the
name of any participating broker, dealer, agent or
underwriter; |
| |
|
|
| |
● |
the
number and type of securities involved; |
| |
|
|
| |
● |
the
price at which such securities were sold; |
| |
|
|
| |
● |
any
securities exchanges on which such securities may be
listed; |
| |
|
|
| |
● |
the
commissions paid or discounts or concessions allowed to any such
broker, dealer, agent or underwriter, where applicable;
and |
| |
|
|
| |
● |
other
facts material to the transaction. |
In order to facilitate the offering of certain securities under
this prospectus or an applicable prospectus supplement, certain
persons participating in the offering of those securities may
engage in transactions that stabilize, maintain or otherwise affect
the price of those securities during and after the offering of
those securities. Specifically, if the applicable prospectus
supplement permits, the underwriters of those securities may
over-allot or otherwise create a short position in those securities
for their own account by selling more of those securities than have
been sold to them by us and may elect to cover any such short
position by purchasing those securities in the open market.
In addition, the underwriters may stabilize or maintain the price
of those securities by bidding for or purchasing those securities
in the open market and may impose penalty bids, under which selling
concessions allowed to syndicate members or other broker-dealers
participating in the offering are reclaimed if securities
previously distributed in the offering are repurchased in
connection with stabilization transactions or otherwise. The effect
of these transactions may be to stabilize or maintain the market
price of the securities at a level above that which might otherwise
prevail in the open market. The imposition of a penalty bid may
also affect the price of securities to the extent that it
discourages resales of the securities. No representation is made as
to the magnitude or effect of any such stabilization or other
transactions. Such transactions, if commenced, may be discontinued
at any time.
In order to comply with the securities laws of certain states, if
applicable, the securities must be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in
certain states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is
available and is complied with.
Rule 15c6-1 under the Exchange Act generally requires that
trades in the secondary market settle in two business days, unless
the parties to any such trade expressly agree otherwise. Your
prospectus supplement may provide that the original issue date for
your securities may be more than two scheduled business days after
the trade date for your securities. Accordingly, in such a case, if
you wish to trade securities on any date prior to the second
business day before the original issue date for your securities,
you will be required, by virtue of the fact that your securities
initially are expected to settle in more than two scheduled
business days after the trade date for your securities, to make
alternative settlement arrangements to prevent a failed
settlement.
This prospectus, any applicable prospectus supplement and any
applicable pricing supplement in electronic format may be made
available on the Internet sites of, or through other online
services maintained by, us and/or one or more of the agents and/or
dealers participating in an offering of securities, or by their
affiliates. In those cases, prospective investors may be able to
view offering terms online and, depending upon the particular agent
or dealer, prospective investors may be allowed to place orders
online.
Other than this prospectus, any applicable prospectus supplement
and any applicable pricing supplement in electronic format, the
information on our website or the website of any agent or dealer,
and any information contained in any other website maintained by
any agent or dealer:
| |
● |
is
not part of this prospectus, any applicable prospectus supplement
or any applicable pricing supplement or the registration statement
of which they form a part; |
| |
|
|
| |
● |
has
not been approved or endorsed by us or by any agent or dealer in
its capacity as an agent or dealer, except, in each case, with
respect to the respective website maintained by such entity;
and |
| |
|
|
| |
● |
should
not be relied upon by investors. |
There can be no assurance that we will sell all or any of the
securities offered by this prospectus.
This prospectus may also be used in connection with any issuance of
common stock or preferred stock upon exercise of a warrant if such
issuance is not exempt from the registration requirements of the
Securities Act.
In addition, we may issue the securities as a dividend or
distribution or in a subscription rights offering to our existing
securityholders. In some cases, we or dealers acting with us or on
our behalf may also purchase securities and reoffer them to the
public by one or more of the methods described above. This
prospectus may be used in connection with any offering of our
securities through any of these methods or other methods described
in the applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
the validity of the securities offered hereby will be passed upon
for us by Lowenstein Sandler LLP, Roseland, New Jersey. If the
validity of the securities offered hereby in connection with
offerings made pursuant to this prospectus are passed upon by
counsel for the underwriters, dealers or agents, if any, such
counsel will be named in the prospectus supplement relating to such
offering.
EXPERTS
The consolidated financial statements of Timber
Pharmaceuticals, Inc. as of December 31, 2020 and 2019,
and for the year ended December 31, 2020 and the period from
February 26, 2019 (Inception) through December 31, 2019,
have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing. The audit report covering the
December 31, 2020 consolidated financial statements contains
an explanatory paragraph that states that the Company's recurring
losses from operations raise substantial doubt about the entity's
ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from
the outcome of that uncertainty.
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Section 145 of the Delaware General Corporation Law provides
that we may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal or
investigative (other than an action by us or in our right) by
reason of the fact that he is or was our director, officer,
employee or agent, or is or was serving at our request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he or she reasonably believed to be in
or not opposed to our best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. Section 145 further provides
that we similarly may indemnify any such person serving in any such
capacity who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by is or in
our right to procure judgment in our favor, against expenses
actually and reasonably incurred in connection with the defense or
settlement of such action or suit if he or she acted in good faith
and in a manner he reasonably believed to be in or not opposed to
our best interests and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to us unless and only to the
extent that the Delaware Court of Chancery or such other court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Our certificate of incorporation, as amended, limits the liability
of our directors to the fullest extent permitted by Delaware law.
In addition, we have entered into indemnification agreements with
certain of our directors and officers whereby we have agreed to
indemnify those directors and officers to the fullest extent
permitted by law, including indemnification against expenses and
liabilities incurred in legal proceedings to which the director or
officer was, or is threatened to be made, a party by reason of the
fact that such director or officer is or was a director, officer,
employee or agent of the Company, provided that such director or
officer acted in good faith and in a manner that the director or
officer reasonably believed to be in, or not opposed to, the best
interests of the Company.
We have director and officer liability insurance to cover
liabilities our directors and officers may incur in connection with
their services to us, including matters arising under the
Securities Act. Our certificate of incorporation and bylaws also
provide that we will indemnify our directors and officers who, by
reason of the fact that he or she is one of our officers or
directors of our company, is involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, related to their board role with the company.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of
our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
ADDITIONAL
INFORMATION
This prospectus is part of a Registration Statement on
Form S-3 that we have filed with the SEC relating to the
shares of our securities being offered hereby. This prospectus does
not contain all of the information in the Registration Statement
and its exhibits. The Registration Statement, its exhibits and the
documents incorporated by reference in this prospectus and their
exhibits, all contain information that is material to the offering
of the securities hereby. Whenever a reference is made in this
prospectus to any of our contracts or other documents, the
reference may not be complete. You should refer to the exhibits
that are a part of the Registration Statement in order to review a
copy of the contract or documents. The Registration Statement and
the exhibits are available at the SEC’s Public Reference Room or
through its website.
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains an Internet site
at http://www.sec.gov that contains reports, proxy and information
statements, and other information regarding issuers, such as us,
that file electronically with the SEC. Additionally, you may access
our filings with the SEC through our website at
www.timberpharma.com. We have included our website address as an
inactive textual reference only and our website and the information
contained on, or that can be accessed through, our website will not
be deemed to be incorporated by reference in, and are not
considered part of, this prospectus.
We will provide you without charge, upon your oral or written
request, with an electronic or paper copy of any or all reports,
proxy statements and other documents we file with the SEC, as well
as any or all of the documents incorporated by reference in this
prospectus (other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to:
Timber Pharmaceuticals, Inc.
Attn: John Koconis, Chief Executive Officer and Chairman of
the Board
110 Allen Road, Suite 401 Basking Ridge, NJ 07920
Telephone number: (908) 636-7160
You should rely only on the information in this prospectus and the
additional information described above and under the heading
“Incorporation of Certain Information by Reference” below. We have
not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely upon it. We are not making an
offer to sell these securities in any jurisdiction where such offer
or sale is not permitted. You should assume that the information in
this prospectus was accurate on the date of the front cover of this
prospectus only. Our business, financial condition, results of
operations and prospects may have changed since that date.
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information that we
file with it into this prospectus, which means that we can disclose
important information to you by referring you to those documents.
The information incorporated by reference is an important part of
this prospectus. The information incorporated by reference is
considered to be a part of this prospectus, and information that we
file later with the SEC will automatically update and supersede
information contained in this prospectus and any accompanying
prospectus supplement.
We incorporate by reference the documents listed below that we have
previously filed with the SEC:
| |
● |
our
Annual Report on Form 10-K for the year ended
December 31, 2020, filed with the SEC on March 23,
2021; |
| |
|
|
| |
● |
our Current Reports on
Form 8-K dated January 12, 2021, January 19, 2021, February 4, 2021 (other than
any portions thereof deemed furnished and not filed), March 16, 2021, March 17, 2021, April 16, 2021, April 23, 2021 and April 28, 2021;
|
| |
|
|
| |
● |
our
definitive Proxy Statement on
Schedule 14A, filed with the SEC on April 23, 2021 (solely
with respect to those portions incorporated by reference into our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2020), as supplemented by the Proxy Supplement on Schedule 14A,
filed with the SEC on April 29, 2021; and |
| |
|
|
| |
● |
the description of the Company’s
Common Stock contained in the Company’s Registration Statement
on Form 8-A filed with the SEC on June 1, 2015
under Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such
description. |
All reports and other documents that we file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of the initial registration statement and prior to
effectiveness of the registration statement, and after the date of
this prospectus but before the termination of the offering of the
securities hereunder will also be considered to be incorporated by
reference into this prospectus from the date of the filing of these
reports and documents, and will supersede the information herein;
provided, however, that all reports, exhibits and other information
that we “furnish” to the SEC will not be considered incorporated by
reference into this prospectus. We undertake to provide without
charge to each person (including any beneficial owner) who receives
a copy of this prospectus, upon written or oral request, a copy of
all of the preceding documents that are incorporated by reference
(other than exhibits, unless the exhibits are specifically
incorporated by reference into these documents). You may request a
copy of these materials in the manner set forth under the heading
“Additional Information,” above.
TIMBER PHARMACEUTICALS, INC.
21,325,000 Shares of Common Stock
Pre-funded Warrants to Purchase up to 2,112,500 Shares of Common
Stock
Warrants to Purchase up to 23,437,500 Shares of Common
Stock
PROSPECTUS SUPPLEMENT
H.C. Wainwright & Co.
November 2, 2021
Timber Pharmaceuticals (AMEX:TMBR)
Historical Stock Chart
From Jun 2022 to Jul 2022
Timber Pharmaceuticals (AMEX:TMBR)
Historical Stock Chart
From Jul 2021 to Jul 2022
