DESCRIPTION OF CAPITAL STOCK
WE MAY OFFER
General
Our
authorized capital stock consists of 200,000,000 shares of common
stock, par value $0.0001 per share; and 10,000,000 shares of
preferred stock, par value $0.0001 per share.
The
following description of our common stock and preferred stock,
together with the additional information included in any applicable
prospectus supplements or related free writing prospectuses,
summarizes the material terms and provisions of these types of
securities, but it is not complete. For the complete terms of our
common stock and preferred stock, please refer to our restated
certificate of incorporation and our amended and restated bylaws
that are incorporated by reference into the Registration Statement
which includes this prospectus and, with respect to preferred
stock, any certificate of designation that we may file with the SEC
for a series of preferred stock we may designate.
We
will describe in a prospectus supplement or related free writing
prospectuses, the specific terms of any common stock or preferred
stock we may offer pursuant to this prospectus. If indicated in a
prospectus supplement, the terms of such common stock or preferred
stock may differ from the terms described below.
Common
Stock
As of
September 8, 2022, there were 149,983,265 shares of common stock
outstanding. The holders of our common stock are entitled to one
vote for each share held of record on all matters submitted to a
vote of the stockholders; provided, however, that, except as
otherwise required by law, holders of our common stock, as such,
shall not be entitled to vote on any amendment to our amended and
restated certificate of incorporation that relates solely to the
terms of one or more outstanding series of preferred stock if the
holders of such affected series are entitled, either separately or
together with the holders of one or more other such series, to vote
thereon pursuant to our amended and restated certificate of
incorporation. The holders of common stock are not entitled to
cumulative voting rights with respect to the election of directors,
and as a consequence, minority stockholders will not be able to
elect directors on the basis of their votes alone.
Subject
to preferences that may be applicable to any then outstanding
shares of preferred stock, holders of common stock are entitled to
receive ratably such dividends as may be declared by the board of
directors out of funds legally available therefor. In the event of
a liquidation, dissolution or winding up of us, holders of the
common stock are entitled to share ratably in all assets remaining
after payment of liabilities and the liquidation preferences of any
then outstanding shares of preferred stock. Holders of common stock
have no preemptive rights and no right to convert their common
stock into any other securities. There are no redemption or sinking
fund provisions applicable to our common stock. All outstanding
shares of common stock are, and all shares of common stock to be
issued under this prospectus will be, fully paid and
non-assessable. The rights, preferences and privileges of holders
of our common stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any of our outstanding
preferred stock.
Listing
Our
common stock is listed under the symbol “ADMP” on the
NASDAQ.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is First American
Stock Transfer.
Dividends
We
have not declared any cash dividends on our common stock and we do
not anticipate paying any cash dividends on our common stock in the
foreseeable future.
Preferred
Stock
We
are authorized to issue a total of 10,000,000 shares of preferred
stock. As of September 8, 2022, there were 3,000 shares of Series C
Convertible Preferred Stock (the “Series C Preferred”) issued and
outstanding.
Preferred
stock may be issued from time to time, in one or more series, as
authorized by the board of directors, without stockholder approval.
The prospectus supplement relating to the preferred shares offered
thereby will include specific terms of any preferred shares
offered, including, if applicable:
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the
title of the shares of preferred stock; |
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the
number of shares of preferred stock offered, the liquidation
preference per share and the offering price of the shares of
preferred stock; |
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to the shares of preferred
stock; |
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whether
the shares of preferred stock are cumulative or not and, if
cumulative, the date from which dividends on the shares of
preferred stock shall accumulate; |
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the
procedures for any auction and remarketing, if any, for the shares
of preferred stock; |
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the
provision for a sinking fund, if any, for the shares of preferred
stock; |
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the
provision for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and
repurchase rights of the shares of preferred stock; |
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any
listing of the shares of preferred stock on any securities
exchange; |
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the
terms and conditions, if applicable, upon which the shares of
preferred stock will be convertible into shares of common stock,
including the conversion price (or manner of calculation
thereof); |
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discussion
of federal income tax considerations applicable to the shares of
preferred stock; |
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the
relative ranking and preferences of the shares of preferred stock
as to dividend rights and rights upon liquidation, dissolution or
winding up of our affairs; |
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any
limitations on issuance of any series or class of shares of
preferred stock ranking senior to or on a parity with such series
or class of shares of preferred stock as to dividend rights and
rights upon liquidation, dissolution or winding up of our
affairs; |
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any
other specific terms, preferences, rights, limitations or
restrictions of the shares of preferred stock; and |
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any
voting rights of such preferred stock. |
The
transfer agent and registrar for any series or class of preferred
stock will be set forth in the applicable prospectus
supplement.
Series
C Convertible Preferred Stock
The
preferences and rights of the Series C Preferred are as set forth
in a Certificate of Designation of Preferences, Rights and
Limitations of Series C Convertible Preferred Stock (the “Series C
Certificate of Designation”) filed as Exhibit 3.1 to our Current
Report on Form 8-K, filed with the SEC on July 6, 2022. The
following is a summary of the material terms of our Series C
Preferred and is qualified in its entirety by the Series C
Certificate of Designation. Please refer to the Series C
Certificate of Designation for more information on the preferences,
rights and limitations of Series C Preferred.
Dividends.
Except for stock dividends or distributions for which adjustments
are made pursuant to the Series C Certificate of Designation, the
holders of Series C Preferred will be entitled to dividends, on an
as-if converted basis, equal to and in the same form as dividends
actually paid on shares of Common Stock, when, as and if actually
paid on shares of Common Stock.
Voting
Rights. Except as otherwise provided in the Series C
Certificate of Designation or as otherwise required by law, the
Series C Preferred will have no voting rights (other than the right
to vote as a class on certain matters as provided in the Series C
Certificate of Designation). However, each share of Series C
Preferred entitles the holder thereof (i) to vote exclusively on a
proposal (the “Proposal”) submitted by the board of directors of
the Company to the stockholders to adopt and approve an amendment
to the Company’s restated certificate of incorporation (the
“Certificate of Incorporation) to effect a reverse stock split of
the outstanding shares of Common Stock at the ratio set forth in
the Proposal that is to be effected by the filing and effectiveness
of a certificate of amendment to the Certificate of Incorporation
with the Secretary of State of the State of Delaware (the “Reverse
Stock Split”), and any proposal to adjourn any meeting of
stockholders called for the purpose of voting on the Proposal, and
(ii) to 1,000,000 votes per each share of Series C Preferred with
respect only to the foregoing matters. The Series C Preferred
shall, except as required by law, vote together with the Common
Stock and any other issued and outstanding shares of preferred
stock of the Company entitled to vote, as a single class; provided,
however, that such shares of Series C Preferred shall, to the
extent cast, be automatically and without further action of the
holders thereof voted in the same proportion as shares of Common
Stock (excluding any shares of Common Stock that are not voted) and
any other issued and outstanding shares of preferred stock of the
Company entitled to vote (other than the Series C Preferred or
shares of such preferred stock not voted) are voted on the Proposal
and any proposal to adjourn any meeting of stockholders called for
the purpose of voting on the Proposal.
Liquidation,
Dissolution or Winding Up. The Series C Preferred has a “Stated
Value” of $100 per share of Series C Preferred. (i) Upon any
liquidation, dissolution or winding up of the Company (a
“Liquidation”), the holders of Series C Preferred are entitled to
be paid in cash an amount per share of Series C Preferred equal to
110% of the Stated Value (the “Liquidation Amount”), or (ii) in the
event of a “Deemed Liquidation Event” as defined in the Series C
Certificate of Designation, which generally includes certain merger
transactions or a sale, lease or other disposition of all or
substantially all of the assets of the Company, the holders of
Series C Preferred are entitled to paid out of the consideration
payable to stockholders in such Deemed Liquidation Event or out of
the “Available Proceeds” (as defined in the Series C Certificate of
Designation), in each case before any payment may be made to the
holders of Common Stock by reason of their ownership thereof, an
amount per share of Series C Preferred equal to the Liquidation
Amount. Upon certain of the Deemed Liquidation Events, if the
Company does not effect a dissolution within 90 days after such
event, then the holders of Series C Preferred may require the
Company to redeem the Series C Preferred for an amount equal to the
Liquidation Amount.
Conversion.
Each share of Series C Preferred is convertible at the option of
the holder, at any time and from time to time after the effective
date of a Reverse Stock Split, into that number of shares (the
“Conversion Shares”) of Common Stock (subject to the Beneficial
Ownership Limitation and the Exchange Cap described below)
determined by dividing the Stated Value of such share of Series C
Preferred by the Conversion Price then in effect, rounded down to
the nearest whole share (with cash paid in lieu of any fractional
shares). The “Conversion Price” for the Series C Preferred equals
90% of the lesser of (i) the closing sale price of the Common Stock
on the trading day immediately prior to the Closing Date and (ii)
the average of the closing sale prices for the Common Stock on the
five trading days immediately prior to the Closing Date, subject to
adjustment as provided in the Series C Certificate of Designation;
provided, that the Conversion Price may not fall below the par
value per share of the Common Stock and may not exceed $0.60 per
share. Based on the initial Conversion Price of $0.43 per share,
the 3,000 Shares of Series C Preferred are initially convertible
into approximately 697,674 shares of Common Stock. The Conversion
Price is subject to adjustment as set forth in the Series C
Certificate of Designation for stock dividends, stock splits,
reverse stock splits, and similar events. Upon conversion, the
shares of Series C Preferred shall resume the status of authorized
but unissued shares of preferred stock of the Company.
Beneficial
Ownership Limitation. The Series C Preferred cannot be
converted to Common Stock if the holder and its affiliates would
beneficially own more than 4.99% of the outstanding Common Stock
(the “Beneficial Ownership Limitation”). However, any holder may
increase or decrease such percentage to any other percentage not in
excess of 9.99% upon notice to us, provided that any increase in
this limitation will not be effective until 61 days after such
notice from the holder to us and such increase or decrease will
apply only to the holder providing such notice.
Nasdaq
Issuance Limitation. The Company will not be obligated to issue
any shares of Common Stock, and the holders of Series C Preferred
do not have the right to receive, upon conversion, exercise or
redemption of the Series C Preferred and the warrants initially
issued to the holder (the “Purchaser”) of the Series C Preferred
(the “Warrants”), taken as a whole, any shares of Common Stock to
the extent such issuance of shares of Common Stock would exceed
that number of shares of Common Stock which the Company may issue
in the aggregate pursuant to the transactions contemplated under
the Securities Purchase Agreement entered into between the Company
and the Purchaser (including pursuant to the Series C Certificate
of Designation and the Warrants) without breaching the Company’s
obligations under the rules and regulations of the Nasdaq Capital
Markets (the “Exchange Cap”). In addition, no holder of Series C
Preferred shall be issued, in the aggregate pursuant to the terms
of the Series C Certificate of Designation and the Warrants, shares
of Common Stock in an amount greater than the product of the
Exchange Cap multiplied by a fraction, the numerator of which is
the original Stated Value of such holder’s Series C Preferred and
the denominator of which is the aggregate Stated Value of all
Series C Preferred issued on the Closing Date to all holders (with
respect to each holder, the “Exchange Cap Allocation”). In the
event that the holder sells or otherwise transfers any of the
holder’s Series C Preferred, the transferee shall be allocated a
pro rata portion of the holder’s Exchange Cap Allocation, and the
restrictions of the prior sentence shall apply to such transferee
with respect to the portion of the Exchange Cap Allocation
allocated to such transferee. If any holder of Series C Preferred
converts all of such holder’s Series C Preferred into a number of
shares of Common Stock which, in the aggregate, is less than such
holder’s Exchange Cap Allocation, then the difference between such
holder’s Exchange Cap Allocation and the number of shares of Common
Stock actually issued to such holder will be allocated to the
respective Exchange Cap Allocations of the remaining holders of
Series C Preferred on a pro rata basis in proportion to the shares
of Series C Preferred then held by each such holder.
Redemption.
Subject to the Purchaser’s right to elect to convert all or a
portion of the Series C Preferred at any time following the
effective date of the Reverse Stock Split, the Company may, with
the prior notice to the holders of the Series C Preferred specified
in the Series C Certificate of Designation, redeem all or a portion
of the Series C Preferred held by such holders at any time at 105%
of the Stated Value, provided, however, that a Company redemption
request shall not be effective if received by a holder of Series C
Preferred before the date of the Reverse Stock Split. Each holder
of Series C Preferred will have the right, with the prior notice to
the Company as specified in the Series C Certificate of
Designation, to require the Company to redeem all or a portion of
the Series C Preferred held by such holder at any time at 110% of
the Stated Value, provided, however, that a holder’s request will
not be effective if received by the Company less than five days
after the date of a Reverse Stock Split.
Preemptive
Rights. No holders of Series C Preferred will, as holders of
Series C Preferred, have any preemptive rights to purchase or
subscribe for the Common Stock or any of our other
securities.
Consent
Rights. In addition to the voting rights of the Series C
Preferred described above, as long as any shares of Series C
Preferred are outstanding, the Company shall not, without the
affirmative vote of the holders of at least a majority on voting
power of the outstanding shares of Series C Preferred: (a) alter or
change adversely the powers, preferences or rights given to the
Series C Preferred or alter or amend the Series C Certificate of
Designation, (b) increase the number of authorized shares of Series
C Preferred, or (c) enter into any agreement with respect to any of
the foregoing.
Failure
to Deliver Conversion Shares. If the Company fails to timely
deliver shares of Common Stock upon conversion of shares of Series
C Preferred within the time period specified in the Series C
Certificate of Designation, then the holder is entitled to elect,
by notice to the Company at any time on or before its receipt of
such Conversion Shares, to rescind such conversion, and the holder
shall return to the Company any Conversion Shares issued to the
holder pursuant to the rescinded notice and the Company shall, at
its own expense, deliver (or cause its transfer agent to deliver)
to the converting holder a new book-entry statement, registered in
the name of the holder or its designee, evidencing the number of
shares of Series C Preferred owned by the holder immediately prior
to the conversion.
Compensation
for Buy-In on Failure to Timely Deliver Shares. If the Company
fails to timely deliver the Conversion Shares to the holder, and if
after the required delivery date the holder is required by its
broker to purchase (in an open market transaction or otherwise) or
the holder or its brokerage firm otherwise purchases, shares of
Common Stock to deliver in satisfaction of a sale by the holder of
the Conversion Shares which the holder was entitled to receive upon
such conversion, then the Company is obligated to (A) pay in cash
to the holder the amount, if any, by which (x) the holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased, exceeds (y) the amount
obtained by multiplying (1) the number of Conversion Shares that
the Company was required to deliver multiplied by (2) the price at
which the sell order giving rise to such purchase obligation was
executed, and (B) at the option of the holder, either reissue (if
surrendered) the shares of Series C Preferred equal to the number
of shares submitted for conversion (in which case such conversion
shall be deemed rescinded) or deliver to the holder the number of
shares of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery
obligations.
Possible
Anti-Takeover Effects of Delaware Law and our Charter
Documents
Provisions
of the Delaware General Corporation Law, or DGCL, our restated
certificate of incorporation, and our amended and restated bylaws,
could make it more difficult to acquire us by means of a tender
offer, a proxy contest or otherwise, or to remove incumbent
officers and directors. These provisions, summarized below, are
expected to discourage certain types of coercive takeover practices
and takeover bids that our board of directors may consider
inadequate and to encourage persons seeking to acquire control of
us to first negotiate with our board of directors. We believe that
the benefits of increased protection of our ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us outweigh the disadvantages of
discouraging takeover or acquisition proposals because, among other
things, negotiation of these proposals could result in an
improvement of their terms.
Delaware
Anti-Takeover Statute
We
are subject to Section 203 of the DGCL. This provision generally
prohibits a Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three
years following the date the stockholder became an interested
stockholder, unless:
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prior
to such date, the board of directors approved either the business
combination or the transaction that resulted in the stockholder
becoming an interested stockholder; |
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upon
consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 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 by persons who are directors and also officers and 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;
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on or
subsequent to such date, the business combination is approved by
the board of directors and authorized at an annual meeting or
special meeting of stockholders and not by written consent, by the
affirmative vote of at least 66-2/3% of the outstanding voting
stock that is not owned by the interested stockholder. |
Section
203 defines a business combination to include:
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any
merger or consolidation involving the corporation and the
interested stockholder; |
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any
sale, transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving the interested
stockholder; |
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subject
to certain exceptions, any transaction that results in the issuance
or transfer by the corporation of any stock of the corporation to
the interested stockholder; |
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any
transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
stockholder; or |
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the
receipt by the interested stockholder of the direct or indirect
benefit of any loans, advances, guarantees, pledges or other
financial benefits provided by or through the
corporation. |
In
general, Section 203 defines an “interested stockholder” as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of a corporation, or an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding
voting stock of a corporation at any time within three years prior
to the time of determination of interested stockholder status; and
any entity or person affiliated with or directly or indirectly
controlling or controlled by such entity or person, who presently
holds the power to direct management or is in a director or officer
of the corporation.
These
statutory provisions could delay or frustrate the removal of
incumbent directors or a change in control of our company, and
accordingly, may discourage attempts to acquire us even though such
a transaction may offer our stockholders the opportunity to sell
their stock at a price above the prevailing market
price.
Restated Certificate of Incorporation and Bylaw
Provisions
Our
restated certificate of incorporation, as amended, and bylaws
contain provisions that could have the effect of discouraging
potential acquisition proposals or making a tender offer or
delaying or preventing a change in control, including changes a
stockholder might consider favorable. In particular, the restated
certificate of incorporation and bylaws, as applicable, among other
things:
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permit
the Board to issue up to 10,000,000 shares of preferred stock,
without further action by the stockholders, with any rights,
preferences and privileges as they may designate; |
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provide
that all vacancies on the Board, including newly created
directorships, may, except as otherwise required by law, or as
determined otherwise by resolution of the Board, be filled by the
affirmative vote of a majority of directors then in office, even if
less than a quorum; |
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do
not provide for cumulative voting rights with respect to election
of directors; |
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provide
that no action shall be taken by the stockholders, except at an
annual or special meeting of stockholders, and no action shall be
taken by the stockholders by written consent or by electronic
transmission; |
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set
forth an advance notice procedure with regard to the nomination,
other than by or at the direction of the Board, of candidates for
election as directors and with regard to business to be brought
before a meeting of stockholders. Although the bylaws do not give
the Board the power to approve or disapprove of stockholder
nominations of candidates or proposals regarding other proper
business to be conducted at a special or annual meeting, the bylaws
may have the effect of precluding the conduct of certain business
at a meeting if the proper procedures are not followed or may
discourage or deter a potential acquirer from conducting a
solicitation of proxies to elect its own slate of directors or
otherwise attempting to obtain control of the Company;
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provide
the Board with the ability to alter its bylaws without stockholder
approval. |
Such
provisions may make it more difficult for holders of our common
stock to replace our board of directors and may have the effect of
discouraging a third-party from making tender offers for our shares
or acquiring us, even if doing so would be beneficial to our
stockholders. These provisions also may have the effect of
preventing changes in our management.
Choice
of Forum. Our bylaws provide that unless the corporation
consents in writing to the selection of an alternative forum, the
Court of Chancery of the State of Delaware shall, to the fullest
extent permitted by law, be the sole and exclusive forum for (i)
any derivative action or proceeding brought on behalf of the
Company; (ii) any action asserting a claim of breach of a fiduciary
duty owed by any director, officer or other employee of the Company
to the Company or the Company’s stockholders; (iii) any action
asserting a claim against the Company or any director or officer or
other employee of the Company arising pursuant to any provision of
the DGCL, the certificate of incorporation or the bylaws of the
Company, or as to which the DGCL confers jurisdiction on the Court
of Chancery of the State of Delaware; or (iv) any action asserting
a claim against the Company or any director or officer or other
employee of the Company governed by the internal affairs doctrine,
in all cases subject to the court’s having personal jurisdiction
over the indispensable parties named as defendants (including
without limitation as a result of the consent of such indispensable
parties to the personal jurisdiction of such court). The bylaws
further provide that if any action the subject matter of which is
within the scope of the preceding sentence is filed in a court
other than a court located within the State of Delaware (a “Foreign
Action”) in the name of any stockholder, such stockholder shall be
deemed to have consented to (i) the personal jurisdiction of the
state and federal courts located within the State of Delaware in
connection with any action brought in any such court to enforce the
preceding sentence; and (ii) having service of process made upon
such stockholder in any such action by service upon such
stockholder’s counsel in the Foreign Action as agent for such
stockholder. The bylaws provide that the above provisions do not
apply to suits brought to enforce a duty or liability created by
the Securities Act of 1933, as amended (the “Securities Act”), the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or any other claim for which the federal courts have exclusive
jurisdiction. Section 27 of the Exchange Act creates exclusive
federal jurisdiction over all suits brought to enforce any duty or
liability created by the Exchange Act or the rules and regulations
thereunder. As a result, the exclusive forum provision will not
apply to suits brought to enforce any duty or liability created by
the Exchange Act or any other claim for which the federal courts
have exclusive jurisdiction. Our bylaws do not relieve us of our
duties to comply with federal securities laws and the rules and
regulations thereunder, and our stockholders will not be deemed to
have waived our compliance with these laws, rules and regulations.
The bylaws also provide that unless the Company consents in writing
to the selection of an alternative forum, the federal district
courts of the United States of America shall, to the fullest extent
permitted by law, be the sole and exclusive forum for the
resolution of any complaint asserting a cause of action arising
under the Securities Act, and that any person or entity purchasing
or otherwise acquiring or holding any interest in shares of capital
stock of the Company shall be deemed to have notice of and
consented to the provisions described above.
Under
the Securities Act, federal and state courts have concurrent
jurisdiction over all suits brought to enforce any duty or
liability created by the Securities Act. There is uncertainty as to
whether a court (other than state courts in the State of Delaware,
where the Supreme Court of the State of Delaware decided in March
2020 that exclusive forum provisions for causes of action arising
under the Securities Act are facially valid under Delaware law)
would enforce forum selection provisions and whether investors can
waive compliance with the federal securities laws and the rules and
regulations thereunder. The forum selection provisions in the
bylaws may have the effect of discouraging lawsuits against us
and/or our directors, officers and employees as it may limit any
stockholder’s ability to bring a claim in a judicial forum that
such stockholder finds favorable for disputes with us or our
directors, officers or employees. In addition, stockholders who do
bring a claim in the Court of Chancery in the State of Delaware
could face additional litigation costs in pursuing any such claim,
particularly if they do not reside in or near Delaware. The
enforceability of similar choice of forum provisions in other
companies’ charter documents has been challenged in legal
proceedings, and it is possible that, in connection with any
applicable action brought against us, a future court could find the
choice of forum provisions contained in our bylaws to be
inapplicable or unenforceable in such action. If a court were to
find the choice of forum provision contained in our bylaws to be
inapplicable or unenforceable in an action, we may incur additional
costs associated with resolving such action in other jurisdictions,
which could adversely affect our business, financial condition or
results of operations.
DESCRIPTION OF DEBT
SECURITIES WE MAY OFFER
The
following description, together with the additional information we
include in any applicable prospectus supplement or free writing
prospectus, summarizes certain general terms and provisions of the
debt securities that we may offer under this prospectus. When we
offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement to what extent
the general terms and provisions described in this prospectus apply
to a particular series of debt securities.
We
may issue debt securities either separately, or together with, or
upon the conversion or exercise of or in exchange for, other
securities described in this prospectus. Debt securities may be our
senior, senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The
debt securities will be issued under an indenture between us and a
trustee named in the prospectus supplement. We have summarized
select portions of the indenture below. The summary is not
complete. The form of the indenture has been filed as an exhibit to
the registration statement and you should read the indenture for
provisions that may be important to you. In the summary below, we
have included references to the section numbers of the indenture so
that you can easily locate these provisions. Capitalized terms used
in the summary and not defined herein have the meanings specified
in the indenture.
General
The
terms of each series of debt securities will be established by or
pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of
directors, in an officer’s certificate or by a supplemental
indenture. (Section 2.2) The particular terms of each series of
debt securities will be described in a prospectus supplement
relating to such series (including any pricing supplement or term
sheet).
We
can issue an unlimited amount of debt securities under the
indenture that may be in one or more series with the same or
various maturities, at par, at a premium or at a discount. (Section
2.1) We will set forth in a prospectus supplement (including any
pricing supplement or term sheet) relating to any series of debt
securities being offered, the aggregate principal amount and the
following terms of the debt securities, if applicable:
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the
title and ranking of the debt securities (including the terms of
any subordination provisions); |
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the
price or prices (expressed as a percentage of the principal amount)
at which we will sell the debt securities; |
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any
limit on the aggregate principal amount of the debt
securities; |
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the
date or dates on which the principal of the securities of the
series is payable; |
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the
rate or rates (which may be fixed or variable) per annum or the
method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date or
dates from which interest will accrue, the date or dates on which
interest will commence and be payable and any regular record date
for the interest payable on any interest payment date; |
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the
place or places where principal of, and interest, if any, on the
debt securities will be payable (and the method of such payment),
where the debt securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands
to us in respect of the debt securities may be
delivered; |
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the
period or periods within which, the price or prices at which and
the terms and conditions upon which we may redeem the debt
securities; |
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any
obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities and the period or periods
within which, the price or prices at which and in the terms and
conditions upon which securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such
obligation; |
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the
dates on which and the price or prices at which we will repurchase
debt securities at the option of the holders of debt securities and
other detailed terms and provisions of these repurchase
obligations; |
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the
denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple
thereof; |
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whether
the debt securities will be issued in the form of certificated debt
securities or global debt securities; |
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the
portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount; |
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the
currency of denomination of the debt securities, which may be
United States Dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or
organization, if any, responsible for overseeing such composite
currency; |
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the
designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt
securities will be made; |
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if
payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect to
these payments will be determined; |
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the
manner in which the amounts of payment of principal of, premium, if
any, or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
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any
provisions relating to any security provided for the debt
securities; |
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any
addition to, deletion of or change in the Events of Default
described in this prospectus or in the indenture with respect to
the debt securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities; |
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any
addition to, deletion of or change in the covenants described in
this prospectus or in the indenture with respect to the debt
securities; |
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any
depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt
securities; |
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the
provisions, if any, relating to conversion or exchange of any debt
securities of such series, including if applicable, the conversion
or exchange price and period, provisions as to whether conversion
or exchange will be mandatory, the events requiring an adjustment
of the conversion or exchange price and provisions affecting
conversion or exchange; |
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any
other terms of the debt securities, which may supplement, modify or
delete any provision of the indenture as it applies to that series,
including any terms that may be required under applicable law or
regulations or advisable in connection with the marketing of the
securities; and |
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whether
any of our direct or indirect subsidiaries will guarantee the debt
securities of that series, including the terms of subordination, if
any, of such guarantees. (Section 2.2) |
We
may issue debt securities that provide for an amount less than
their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the
federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
If we
denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units,
or if the principal of and any premium and interest on any series
of debt securities is payable in a foreign currency or currencies
or a foreign currency unit or units, we will provide you with
information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or
currencies or foreign currency unit or units in the applicable
prospectus supplement.
Transfer
and Exchange
Each
debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company
(DTC or the Depositary), or a nominee of the Depositary (we will
refer to any debt security represented by a global debt security as
a “book-entry debt security”), or a certificate issued in
definitive registered form (we will refer to any debt security
represented by a certificated security as a “certificated debt
security”) as set forth in the applicable prospectus supplement.
Except as set forth under the heading “Global Debt Securities and
Book-Entry System” below, book-entry debt securities will not be
issuable in certificated form.
Certificated
Debt Securities. You may transfer or exchange certificated debt
securities at any office we maintain for this purpose in accordance
with the terms of the indenture. (Section 2.4) No service charge
will be made for any transfer or exchange of certificated debt
securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with a
transfer or exchange. (Section 2.7)
You
may effect the transfer of certificated debt securities and the
right to receive the principal of, premium and interest on
certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either
reissuance by us or the trustee of the certificate to the new
holder or the issuance by us or the trustee of a new certificate to
the new holder. Global Debt Securities and Book-Entry System. Each
global debt security representing book-entry debt securities will
be deposited with, or on behalf of, the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary.
Please see “Global Securities.”
Covenants
We
will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt securities.
(Article IV)
No
Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford
holders of the debt securities protection in the event we have a
change in control or in the event of a highly leveraged transaction
(whether or not such transaction results in a change in control)
which could adversely affect holders of debt securities.
Consolidation,
Merger and Sale of Assets
We
may not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all of our properties and assets to
any person (a “successor person”) unless:
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we
are the surviving corporation or the successor person (if other
than Icosavax) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly
assumes our obligations on the debt securities and under the
indenture; |
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immediately
after giving effect to the transaction, no Default or Event of
Default shall have occurred and be continuing. |
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into
or transfer all or part of its properties to us. (Section
5.1)
Events
of Default
“Event
of Default” means with respect to any series of debt securities,
any of the following:
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default
in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of the
payment is deposited by us with the trustee or with a paying agent
prior to the expiration of the 30-day period); |
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default
in the payment of principal of any debt security of that series at
its maturity; |
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default
in the performance or breach of any other covenant or warranty by
us in the indenture or any debt security (other than a covenant or
warranty that has been included in the indenture solely for the
benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days after we
receive written notice from the trustee or Icosavax and the trustee
receive written notice from the holders of not less than 25% in
principal amount of the outstanding debt securities of that series
as provided in the indenture; |
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certain
voluntary or involuntary events of bankruptcy, insolvency or
reorganization of Icosavax; or |
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any
other Event of Default provided with respect to debt securities of
that series that is described in the applicable prospectus
supplement. (Section 6.1) |
No
Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an Event of Default with
respect to any other series of debt securities. (Section 6.1) The
occurrence of certain Events of Default or an acceleration under
the indenture may constitute an event of default under certain
indebtedness of ours or our subsidiaries outstanding from time to
time.
We
will provide the trustee written notice of any Default or Event of
Default within 30 days of becoming aware of the occurrence of such
Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action we are taking or propose to take in respect
thereof. (Section 6.1)
If an
Event of Default with respect to debt securities of any series at
the time outstanding occurs and is continuing, then the trustee or
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may, by a notice in
writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt
securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest, if any, on all debt
securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of
Default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. (Section
6.2) We refer you to the prospectus supplement relating to any
series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the
principal amount of such discount securities upon the occurrence of
an Event of Default.
The
indenture provides that the trustee may refuse to perform any duty
or exercise any of its rights or powers under the indenture, unless
the trustee receives indemnity satisfactory to it against any cost,
liability or expense which might be incurred by it in performing
such duty or exercising such right or power. (Section 7.1(e))
Subject to certain rights of the trustee, the holders of a majority
in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with
respect to the debt securities of that series. (Section
6.12)
No
holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to
the indenture or for the appointment of a receiver or trustee, or
for any remedy under the indenture, unless:
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that
holder has previously given to the trustee written notice of a
continuing Event of Default with respect to debt securities of that
series; and |
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the
holders of not less than 25% in principal amount of the outstanding
debt securities of that series have made written request, and
offered indemnity or security satisfactory to the trustee, to the
trustee to institute the proceeding as trustee, and the trustee has
not received from the holders of not less than a majority in
principal amount of the outstanding debt securities of that series
a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. (Section 6.7) |
Notwithstanding
any other provision in the indenture, the holder of any debt
security will have an absolute and unconditional right to receive
payment of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment. (Section
6.8)
The
indenture requires us, within 120 days after the end of our fiscal
year, to furnish to the trustee a statement as to compliance with
the indenture. (Section 4.3) If a Default or Event of Default
occurs and is continuing with respect to the securities of any
series and if it is known to a responsible officer of the trustee,
the trustee shall mail to each holder of the securities of that
series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a responsible officer of the trustee
has knowledge of such Default or Event of Default. The indenture
provides that the trustee may withhold notice to the holders of
debt securities of any series of any Default or Event of Default
(except in payment on any debt securities of that series) with
respect to debt securities of that series if the trustee determines
in good faith that withholding notice is in the interest of the
holders of those debt securities. (Section 7.5)
Modification
and Waiver
We
and the trustee may modify, amend or supplement the indenture or
the debt securities of any series without the consent of any holder
of any debt security:
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to
cure any ambiguity, defect or inconsistency; |
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to
comply with covenants in the indenture described above under the
heading “Consolidation, Merger and Sale of Assets”; |
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to
provide for uncertificated securities in addition to or in place of
certificated securities; |
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to
add guarantees with respect to debt securities of any series or
secure debt securities of any series; |
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to
surrender any of our rights or powers under the
indenture; |
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to
add covenants or events of default for the benefit of the holders
of debt securities of any series; |
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to
comply with the applicable procedures of the applicable
depositary; |
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to
make any change that does not adversely affect the rights of any
holder of debt securities; |
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to
provide for the issuance of and establish the form and terms and
conditions of debt securities of any series as permitted by the
indenture; |
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to
effect the appointment of a successor trustee with respect to the
debt securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate
administration by more than one trustee; or |
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to
comply with requirements of the SEC in order to effect or maintain
the qualification of the indenture under the Trust Indenture Act.
(Section 9.1) |
We
may also modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or
amendment without the consent of the holders of each affected debt
security then outstanding if that amendment will:
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reduce the amount of debt securities whose
holders must consent to an amendment, supplement or
waiver; |
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reduce
the rate of or extend the time for payment of interest (including
default interest) on any debt security; |
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reduce
the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with
respect to any series of debt securities; |
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reduce
the principal amount of discount securities payable upon
acceleration of maturity; |
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waive
a default or event of default in the payment of the principal of,
premium or interest on any debt security (except a rescission of
acceleration of the debt securities of any series by the holders of
at least a majority in aggregate principal amount of the then
outstanding debt securities of that series and a waiver of the
payment default that resulted from such acceleration); |
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make
the principal of or premium or interest on any debt security
payable in currency other than that stated in the debt
security; |
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make
any change to certain provisions of the indenture relating to,
among other things, the right of holders of debt securities to
receive payment of the principal of, premium and interest on those
debt securities and to institute suit for the enforcement of any
such payment and to waivers or amendments; or |
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waive
a redemption payment with respect to any debt security. (Section
9.3) |
Except
for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all debt securities of
that series waive our compliance with provisions of the indenture.
(Section 9.2) The holders of a majority in principal amount of the
outstanding debt securities of any series may on behalf of the
holders of all the debt securities of such series waive any past
default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of,
premium or any interest on any debt security of that series;
provided, however, that the holders of a majority in principal
amount of the outstanding debt securities of any series may rescind
an acceleration and its consequences, including any related payment
default that resulted from the acceleration. (Section
6.13)
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities,
we may be discharged from any and all obligations in respect of the
debt securities of any series (subject to certain exceptions). We
will be so discharged upon the irrevocable deposit with the
trustee, in trust, of money and/or U.S. government obligations or,
in the case of debt securities denominated in a single currency
other than U.S. Dollars, government obligations of the government
that issued or caused to be issued such currency, that, through the
payment of interest and principal in accordance with their terms,
will provide money or U.S. government obligations in an amount
sufficient in the opinion of a nationally recognized firm of
independent public accountants or investment bank to pay and
discharge each installment of principal, premium and interest on
and any mandatory sinking fund payments in respect of, the debt
securities of that series on the stated maturity of those payments
in accordance with the terms of the indenture and those debt
securities.
This
discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the U.S. Internal Revenue
Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the debt securities of
that series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the deposit, defeasance
and discharge and will be subject to U.S. federal income tax on the
same amounts and in the same manner and at the same times as would
have been the case if the deposit, defeasance and discharge had not
occurred. (Section 8.3)
Defeasance
of Certain Covenants. The indenture provides that, unless
otherwise provided by the terms of the applicable series of debt
securities, upon compliance with certain conditions:
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we
may omit to comply with the covenant described under the heading
“Consolidation, Merger and Sale of Assets” and certain other
covenants set forth in the indenture, as well as any additional
covenants which may be set forth in the applicable prospectus
supplement; and |
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any
omission to comply with those covenants will not constitute a
Default or an Event of Default with respect to the debt securities
of that series (“covenant defeasance”). |
The
conditions include:
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depositing
with the trustee money and/or U.S. government obligations or, in
the case of debt securities denominated in a single currency other
than U.S. Dollars, government obligations of the government that
issued or caused to be issued such currency, that, through the
payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants or
investment bank to pay and discharge each installment of principal
of, premium and interest on, and any mandatory sinking fund
payments in respect of, the debt securities of that series on the
stated maturity of those payments in accordance with the terms of
the indenture and those debt securities; and |
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delivering
to the trustee an opinion of counsel to the effect that the holders
of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a
result of the deposit and related covenant defeasance and will be
subject to United States federal income tax on the same amounts and
in the same manner and at the same times as would have been the
case if the deposit and related covenant defeasance had not
occurred. (Section 8.4) |
No
Personal Liability of Directors, Officers, Employees or
Securityholders
None
of our past, present or future directors, officers, employees or
securityholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or
their creation. By accepting a debt security, each holder waives
and releases all such liability. This waiver and release is part of
the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities
under U.S. federal securities laws, and it is the view of the SEC
that such a waiver is against public policy.
Governing
Law
The
indenture and the debt securities, including any claim or
controversy arising out of or relating to the indenture or the debt
securities, will be governed by the laws of the State of New
York.
The
indenture will provide that we, the trustee and the holders of the
debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or
the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding
arising out of or based upon the indenture or the transactions
contemplated thereby may be instituted in the federal courts of the
United States of America located in the City of New York or the
courts of the State of New York in each case located in the City of
New York, and we, the trustee and the holder of the debt securities
(by their acceptance of the debt securities) irrevocably submit to
the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to
such party’s address set forth in the indenture will be effective
service of process for any suit, action or other proceeding brought
in any such court. The indenture will further provide that we, the
trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other
proceeding in the courts specified above and irrevocably and
unconditionally waive and agree not to plead or claim any such
suit, action or other proceeding has been brought in an
inconvenient forum. (Section 10.10)
DESCRIPTION OF WARRANTS WE
MAY OFFER
As of
September 8, 2022, we had 14,952,824 warrants to purchase shares of
our common stock outstanding. We typically issue warrants to
purchase shares of our common stock to investors as part of a
financing transaction, or in connection with services rendered by
placement agents and outside consultants.
We
may issue warrants to purchase debt securities, preferred stock,
common stock or any combination of the foregoing. We may issue
warrants independently or together with any other securities we
offer under a prospectus supplement. The warrants may be attached
to or separate from the securities. We may issue a series of
warrants under a separate warrant agreement to be entered into
between a warrant agent and us. The warrant agent will act solely
as our agent in connection with the warrants and will not have any
obligations or relationship of agency or trust for or with holders
or beneficial owners of warrants. The following outlines some of
the general terms and provisions of the warrants that we may issue
from time to time. When we issue warrants, we will provide the
specific terms of the warrants and the applicable warrant agreement
in a prospectus supplement and any related free writing
prospectuses and such terms may differ from those described below.
To the extent the information contained in the prospectus
supplement differs from this summary description, you should rely
on the information in the prospectus supplement. The following
description, and any description of the warrants included in a
prospectus supplement, may not be complete and is subject to and
qualified in its entirety by reference to the terms and provisions
of the applicable warrant agreement.
Debt
Warrants
We
will describe in the applicable prospectus supplement and any
related free writing prospectuses the terms of the debt warrants
being offered, the warrant agreement relating to the debt warrants
and the debt warrant certificates representing the debt warrants,
including, as applicable:
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the
title of the debt warrants; |
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the
aggregate number of the debt warrants; |
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the
price or prices at which the debt warrants will be
issued; |
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the
designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the
procedures and conditions relating to the exercise of the debt
warrants; |
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the
designation and terms of any related debt securities with which the
debt warrants are issued, and the number of the debt warrants
issued with each security; |
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the
date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable; |
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the
principal amount of debt securities purchasable upon exercise of
each debt warrant, and the price at which the principal amount of
the debt securities may be purchased upon exercise; |
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the
date on which the right to exercise the debt warrants will
commence, and the date on which the right will expire; |
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the
maximum or minimum number of the debt warrants that may be
exercised at any time; |
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information
with respect to book-entry procedures, if any; |
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changes
to or adjustments in the exercise price of the debt
warrants; |
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a
discussion of the material U.S. federal income tax considerations
applicable to the exercise of the debt warrants; and |
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any
other terms of the debt warrants and terms, procedures and
limitations relating to the exercise of the debt
warrants. |
As
may be permitted under the warrant agreement, holders may exchange
debt warrant certificates for new debt warrant certificates of
different denominations, and may exercise debt warrants at the
corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement and any related
free writing prospectuses. Prior to the exercise of their debt
warrants, holders of debt warrants will not have any of the rights
of holders of the securities purchasable upon the exercise and will
not be entitled to payments of principal, premium or interest on
the securities purchasable upon the exercise of debt
warrants.
Equity
Warrants
We
will describe in the applicable prospectus supplement and any
related free writing prospectuses the terms of the preferred stock
warrants or common stock warrants being offered, the warrant
agreement relating to the preferred stock warrants or common stock
warrants and the warrant certificates representing the preferred
stock warrants or common stock warrants, including, as
applicable:
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the
title of the warrants; |
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the
securities for which the warrants are exercisable; |
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the
price or prices at which the warrants will be issued; |
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if
applicable, the number of warrants issued with each share of
preferred stock or share of common stock; |
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if
applicable, the date on and after which the warrants and the
related preferred stock or common stock will be separately
transferable; |
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the
date on which the right to exercise the warrants will commence, and
the date on which the right will expire; |
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the
maximum or minimum number of warrants which may be exercised at any
time; |
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information
with respect to book-entry procedures, if any; |
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a
discussion of the material U.S. federal income tax considerations
applicable to exercise of the warrants; and |
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any
other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants. |
Unless
otherwise provided in the applicable warrant agreement and
corresponding prospectus supplement or any related free writing
prospectuses, holders of equity warrants will not be entitled, by
virtue of being such holders, to vote, consent, receive dividends,
receive notice as stockholders with respect to any meeting of
stockholders for the election of our directors or any other matter,
or to exercise any rights whatsoever as stockholders.
Except
as provided in the applicable warrant agreement and corresponding
prospectus supplement or any related free writing prospectuses, the
exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each warrant will
be subject to adjustment in certain events, including the issuance
of a stock dividend to holders of common stock or preferred stock
or a stock split, reverse stock split, combination, subdivision or
reclassification of common stock or preferred stock. In lieu of
adjusting the number of shares of common stock or preferred stock
purchasable upon exercise of each warrant, we may elect to adjust
the number of warrants. Unless otherwise provided in the applicable
warrant agreement and corresponding prospectus supplement or any
related free writing prospectuses, no adjustments in the number of
shares purchasable upon exercise of the warrants will be required
until all cumulative adjustments require an adjustment of at least
1% thereof. No fractional shares will be issued upon exercise of
warrants, but we will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, except as
otherwise provided in the applicable warrant agreement and
corresponding prospectus supplement or any related free writing
prospectuses, in case of any consolidation, merger, or sale or
conveyance of our property as an entirety or substantially as an
entirety, the holder of each outstanding warrant will have the
right to the kind and amount of shares of stock and other
securities and property, including cash, receivable by a holder of
the number of shares of common stock or preferred stock into which
each warrant was exercisable immediately prior to the particular
triggering event.
Exercise
of Warrants
Each
warrant will entitle the holder of the warrant to purchase for cash
at the exercise price provided in the applicable warrant agreement
and corresponding prospectus supplement or any related free writing
prospectuses the principal amount of debt securities or shares of
preferred stock or shares of common stock being offered. Holders
may exercise warrants at any time up to the close of business on
the expiration date provided in the applicable warrant agreement
and corresponding prospectus supplement or any related free writing
prospectuses. After the close of business on the expiration date,
unexercised warrants are void.
Holders
may exercise warrants as described in the applicable warrant
agreement and corresponding prospectus supplement or any free
writing prospectuses relating to the warrants being offered. Upon
receipt of payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable warrant
agreement and corresponding prospectus supplement or any related
free writing prospectuses, we will, as soon as practicable, forward
the debt securities, shares of preferred stock or shares of common
stock purchasable upon the exercise of the warrant. If less than
all of the warrants represented by the warrant certificate are
exercised, we will issue a new warrant certificate for the
remaining warrants.
DESCRIPTION OF UNITS WE MAY
OFFER
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the
terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the
applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described
below. However, no prospectus supplement will fundamentally change
the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time
of its effectiveness.
We
will file as exhibits to the Registration Statement of which this
prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, the form of
unit agreement that describes the terms of the series of units we
are offering, and any supplemental agreements, before the issuance
of the related series of units. The following summaries of material
terms and provisions of the units are subject to, and qualified in
their entirety by reference to, all the provisions of the unit
agreement and any supplemental agreements applicable to a
particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units
that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of
the units.
General
We
may issue units comprised of one or more shares of common stock,
shares of preferred stock, debt securities and warrants 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. The unit agreement under which
a unit is issued 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.
We
will describe in the applicable prospectus supplement the terms of
the series of units, including:
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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; |
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any
provisions of the governing unit agreement that differ from those
described below; and |
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any
provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the
units. |
The
provisions described in this section, as well as those described
under “Description of Capital Stock We May Offer,” “Description of
Debt Securities We May Offer” and “Description of Warrants We May
Offer” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit,
respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as
we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent, if any, will act solely as our agent under the
applicable unit agreement and will not assume any obligation or
relationship of agency or trust with any holder of any unit. A
single bank or trust company may act as unit agent for more than
one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any demand
upon us. Any holder of a unit may, without the consent of the
related unit agent or the holder of any other unit, enforce by
appropriate legal action its rights as holder under any security
included in the unit.
We,
the unit agents and any of their agents may treat the registered
holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the units so
registered, despite any notice to the contrary.
GLOBAL
SECURITIES
Book-Entry,
Delivery and Form
Unless
we indicate differently in any applicable prospectus supplement or
free writing prospectus, the securities initially will be issued in
book-entry form and represented by one or more global notes or
global securities, or, collectively, global securities. The global
securities will be deposited with, or on behalf of DTC and
registered in the name of Cede & Co., the nominee of DTC.
Unless and until it is exchanged for individual certificates
evidencing securities under the limited circumstances described
below, a global security may not be transferred except as a whole
by the depositary to its nominee or by the nominee to the
depositary, or by the depositary or its nominee to a successor
depositary or to a nominee of the successor depositary.
DTC
has advised us that it is:
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a
limited-purpose trust company organized under the New York Banking
Law; |
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a
“banking organization” within the meaning of the New York Banking
Law; |
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a
member of the Federal Reserve System; |
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a
“clearing corporation” within the meaning of the New York Uniform
Commercial Code; and |
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a
“clearing agency” registered pursuant to the provisions of Section
17A of the Exchange Act. |
DTC
holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among its participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in
participants’ accounts, thereby eliminating the need for physical
movement of securities certificates. “Direct participants” in DTC
include securities brokers and dealers, including underwriters,
banks, trust companies, clearing corporations and other
organizations. DTC is a wholly-owned subsidiary of The Depository
Trust & Clearing Corporation (DTCC). DTCC is the holding
company for DTC, National Securities Clearing Corporation and Fixed
Income Clearing Corporation, all of which are registered clearing
agencies. DTCC is owned by the users of its regulated subsidiaries.
Access to the DTC system is also available to others, which we
sometimes refer to as indirect participants, that clear through or
maintain a custodial relationship with a direct participant, either
directly or indirectly. The rules applicable to DTC and its
participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through
direct participants, which will receive a credit for the securities
on DTC’s records. The ownership interest of the actual purchaser of
a security, which we sometimes refer to as a beneficial owner, is
in turn recorded on the direct and indirect participants’ records.
Beneficial owners of securities will not receive written
confirmation from DTC of their purchases. However, beneficial
owners are expected to receive written confirmations providing
details of their transactions, as well as periodic statements of
their holdings, from the direct or indirect participants through
which they purchased securities. Transfers of ownership interests
in global securities are to be accomplished by entries made on the
books of participants acting on behalf of beneficial owners.
Beneficial owners will not receive certificates representing their
ownership interests in the global securities, except under the
limited circumstances described below.
To
facilitate subsequent transfers, all global securities deposited by
direct participants with DTC will be registered in the name of
DTC’s partnership nominee, Cede & Co., or such other name as
may be requested by an authorized representative of DTC. The
deposit of securities with DTC and their registration in the name
of Cede & Co. or such other nominee will not change the
beneficial ownership of the securities. DTC has no knowledge of the
actual beneficial owners of the securities. DTC’s records reflect
only the identity of the direct participants to whose accounts the
securities are credited, which may or may not be the beneficial
owners. The participants are responsible for keeping account of
their holdings on behalf of their customers.
So
long as the securities are in book-entry form, you will receive
payments and may transfer securities only through the facilities of
the depositary and its direct and indirect participants. We will
maintain an office or agency in the location specified in the
prospectus supplement for the applicable securities, where notices
and demands in respect of the securities and the indenture may be
delivered to us and where certificated securities may be
surrendered for payment, registration of transfer or
exchange.
Conveyance
of notices and other communications by DTC to direct participants,
by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be
governed by arrangements among them, subject to any legal
requirements in effect from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of
a particular series are being redeemed, DTC’s practice is to
determine by lot the amount of the interest of each direct
participant in the securities of such series to be
redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or
vote with respect to the securities. Under its usual procedures,
DTC will mail an omnibus proxy to us as soon as possible after the
record date. The omnibus proxy assigns the consenting or voting
rights of Cede & Co. to those direct participants to whose
accounts the securities of such series are credited on the record
date, identified in a listing attached to the omnibus
proxy.
So
long as securities are in book-entry form, we will make payments on
those securities to the depositary or its nominee, as the
registered owner of such securities, by wire transfer of
immediately available funds. If securities are issued in definitive
certificated form under the limited circumstances described below
and unless if otherwise provided in the description of the
applicable securities herein or in the applicable prospectus
supplement, we will have the option of making payments by check
mailed to the addresses of the persons entitled to payment or by
wire transfer to bank accounts in the United States designated in
writing to the applicable trustee or other designated party at
least 15 days before the applicable payment date by the persons
entitled to payment, unless a shorter period is satisfactory to the
applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities
will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC’s practice is
to credit direct participants’ accounts upon DTC’s receipt of funds
and corresponding detail information from us on the payment date in
accordance with their respective holdings shown on DTC records.
Payments by participants to beneficial owners will be governed by
standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or
registered in “street name.” Those payments will be the
responsibility of participants and not of DTC or us, subject to any
statutory or regulatory requirements in effect from time to time.
Payment of redemption proceeds, distributions and dividend payments
to Cede & Co., or such other nominee as may be requested by an
authorized representative of DTC, is our responsibility;
disbursement of payments to direct participants is the
responsibility of DTC; and disbursement of payments to the
beneficial owners is the responsibility of direct and indirect
participants.
Except
under the limited circumstances described below, purchasers of
securities will not be entitled to have securities registered in
their names and will not receive physical delivery of securities.
Accordingly, each beneficial owner must rely on the procedures of
DTC and its participants to exercise any rights under the
securities and the indenture.
The
laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form.
Those laws may impair the ability to transfer or pledge beneficial
interests in securities.
DTC
may discontinue providing its services as securities depositary
with respect to the securities at any time by giving reasonable
notice to us. Under such circumstances, in the event that a
successor depositary is not obtained, securities certificates are
required to be printed and delivered.
As
noted above, beneficial owners of a particular series of securities
generally will not receive certificates representing their
ownership interests in those securities. However, if:
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DTC
notifies us that it is unwilling or unable to continue as a
depositary for the global security or securities representing such
series of securities or if DTC ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to
be registered and a successor depositary is not appointed within 90
days of the notification to us or of our becoming aware of DTC’s
ceasing to be so registered, as the case may be; |
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we
determine, in our sole discretion, not to have such securities
represented by one or more global securities; or |
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an
Event of Default has occurred and is continuing with respect to
such series of securities, |
we
will prepare and deliver certificates for such securities in
exchange for beneficial interests in the global securities. Any
beneficial interest in a global security that is exchangeable under
the circumstances described in the preceding sentence will be
exchangeable for securities in definitive certificated form
registered in the names that the depositary directs. It is expected
that these directions will be based upon directions received by the
depositary from its participants with respect to ownership of
beneficial interests in the global securities.
Euroclear and Clearstream
If so
provided in the applicable prospectus supplement, you may hold
interests in a global security through Clearstream Banking S.A.,
which we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as
operator of the Euroclear System, which we refer to as “Euroclear,”
either directly if you are a participant in Clearstream or
Euroclear or indirectly through organizations which are
participants in Clearstream or Euroclear. Clearstream and Euroclear
will hold interests on behalf of their respective participants
through customers’ securities accounts in the names of Clearstream
and Euroclear, respectively, on the books of their respective U.S.
depositaries, which in turn will hold such interests in customers’
securities accounts in such depositaries’ names on DTC’s
books.
Clearstream
and Euroclear are securities clearance systems in Europe.
Clearstream and Euroclear hold securities for their respective
participating organizations and facilitate the clearance and
settlement of securities transactions between those participants
through electronic book-entry changes in their accounts, thereby
eliminating the need for physical movement of
certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters
relating to beneficial interests in global securities owned through
Euroclear or Clearstream must comply with the rules and procedures
of those systems. Transactions between participants in Euroclear or
Clearstream, on one hand, and other participants in DTC, on the
other hand, are also subject to DTC’s rules and
procedures.
Investors
will be able to make and receive through Euroclear and Clearstream
payments, deliveries, transfers and other transactions involving
any beneficial interests in global securities held through those
systems only on days when those systems are open for business.
Those systems may not be open for business on days when banks,
brokers and other institutions are open for business in the United
States.
Cross-market
transfers between participants in DTC, on the one hand, and
participants in Euroclear or Clearstream, on the other hand, will
be effected through DTC in accordance with the DTC’s rules on
behalf of Euroclear or Clearstream, as the case may be, by their
respective U.S. depositaries; however, such cross-market
transactions will require delivery of instructions to Euroclear or
Clearstream, as the case may be, by the counterparty in such system
in accordance with the rules and procedures and within the
established deadlines (European time) of such system. Euroclear or
Clearstream, as the case may be, will, if the transaction meets its
settlement requirements, deliver instructions to its U.S.
depositary to take action to effect final settlement on its behalf
by delivering or receiving interests in the global securities
through DTC, and making or receiving payment in accordance with
normal procedures for same-day fund settlement. Participants in
Euroclear or Clearstream may not deliver instructions directly to
their respective U.S. depositaries.
Due
to time zone differences, the securities accounts of a participant
in Euroclear or Clearstream purchasing an interest in a global
security from a direct participant in DTC will be credited, and any
such crediting will be reported to the relevant participant in
Euroclear or Clearstream, during the securities settlement
processing day (which must be a business day for Euroclear or
Clearstream) immediately following the settlement date of DTC. Cash
received in Euroclear or Clearstream as a result of sales of
interests in a global security by or through a participant in
Euroclear or Clearstream to a direct participant in DTC will be
received with value on the settlement date of DTC but will be
available in the relevant Euroclear or Clearstream cash account
only as of the business day for Euroclear or Clearstream following
DTC’s settlement date.
Other
The
information in this section of this prospectus concerning DTC,
Clearstream, Euroclear and their respective book-entry systems has
been obtained from sources that we believe to be reliable, but we
do not take responsibility for this information. This information
has been provided solely as a matter of convenience. The rules and
procedures of DTC, Clearstream and Euroclear are solely within the
control of those organizations and could change at any time.
Neither we nor the trustee nor any agent of ours or of the trustee
has any control over those entities and none of us takes any
responsibility for their activities. You are urged to contact DTC,
Clearstream and Euroclear or their respective participants directly
to discuss those matters. In addition, although we expect that DTC,
Clearstream and Euroclear will perform the foregoing procedures,
none of them is under any obligation to perform or continue to
perform such procedures and such procedures may be discontinued at
any time. Neither we nor any agent of ours will have any
responsibility for the performance or nonperformance by DTC,
Clearstream and Euroclear or their respective participants of these
or any other rules or procedures governing their respective
operations.
PLAN OF
DISTRIBUTION
We,
or the applicable selling security holders, may sell the offered
securities from time to time.
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to or
through underwriters; |
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to or
through broker-dealers (acting as agent or principal); |
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in
“at the market offerings” within the meaning of Rule 415(a)(4) of
the Securities Act; |
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directly
to purchasers, through a specific bidding or auction process or
otherwise; or |
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through
a combination of these methods of sale. |
The
applicable prospectus supplement (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities,
including:
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the
name or names of any underwriters, if any, and if required, any
dealers or agents and the amount of shares underwritten or
purchased by each of them; |
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the
purchase price or other consideration to be paid in connection with
the sale of the securities being offered and the proceeds we will
receive from the sale; |
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any
underwriting discounts or agency fees and other items constituting
underwriters’ or agents’ compensation; |
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any
over-allotment options under which underwriters may purchase
additional securities from us; |
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any
discounts or concessions allowed or reallowed or paid to dealers;
and |
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any
securities exchange or market on which the securities may be
listed. |
We
may distribute the securities from time to time in one or more
transactions at:
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fixed
price or prices, which may be changed from time to
time; |
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market
prices prevailing at the time of sale; |
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prices
related to such prevailing market prices; or |
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If we
utilize an underwriter in the sale of the securities being offered,
we will execute an underwriting agreement with the underwriter at
the time of sale. Any underwriters used in the sale will acquire
the securities for their own account and may resell the securities
from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will
be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public
through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate.
In
connection with the sale of the securities, we, or the purchasers
of the securities for whom the underwriter may act as agent, may
compensate the underwriter in the form of underwriting discounts or
commissions. The underwriter may sell the securities to or through
dealers, and the underwriter may compensate those dealers in the
form of discounts, concessions or commissions. Subject to certain
conditions, the underwriters will be obligated to purchase all of
the securities offered by the prospectus supplement. We may change
from time to time the public offering price and any discounts or
concessions allowed or reallowed or paid to dealers.
We
may directly solicit offers to purchase the securities. We may also
designate agents to solicit offers to purchase the securities from
time to time. We will name in a prospectus supplement any agent
involved in the offer or sale of our securities. Unless the
prospectus supplement states otherwise, our agent will act on a
best-efforts basis for the period of its appointment.
If we
utilize a dealer in the sale of the securities being offered by
this prospectus, we will sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of
resale.
We
and/or the selling security holders, if applicable, may authorize
agents or underwriters to solicit offers by institutional investors
to purchase securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in
the future. We will describe the conditions to these contracts and
the commissions we must pay for solicitation of these contracts in
the prospectus supplement.
Underwriters,
dealers and agents participating in the distribution of the
securities may be deemed to be underwriters within the meaning of
the Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the securities
may be deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and agents
against civil liabilities, including liabilities under the
Securities Act, or to contribute to payments they may be required
to make in respect thereof.
In
addition, we may enter into derivative transactions with third
parties (including the writing of options), or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in
connection with such a transaction, the third parties may, pursuant
to this prospectus and the applicable prospectus supplement, sell
securities covered by this prospectus and the applicable prospectus
supplement. If so, the third party may use securities 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 the 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. The third party in such sale
transactions will be an underwriter and will be identified in the
applicable prospectus supplement or in a post-effective
amendment.
All
securities we offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may
make a market in these securities, but will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot guarantee the liquidity of the trading markets
for any securities. Shares of our common stock sold pursuant to the
Registration Statement of which this prospectus is a part will be
authorized for listing and trading on the NASDAQ. The applicable
prospectus supplement will contain information, where applicable,
as to any other listing, if any, on the NASDAQ or any securities
market or other securities exchange of the securities covered by
the prospectus supplement.
Underwriters
may engage in stabilizing and syndicate covering transactions in
accordance with Rule 104 under the Exchange Act. Rule 104 permits
stabilizing bids to purchase the securities being offered as long
as the stabilizing bids do not exceed a specified maximum.
Underwriters may over-allot the offered securities in connection
with the offering, thus creating a short position in their account.
Syndicate covering transactions involve purchases of the offered
securities by underwriters in the open market after the
distribution has been completed in order to cover syndicate short
positions. Underwriters may also cover an over-allotment or short
position by exercising their over-allotment option, if any.
Stabilizing and syndicate covering transactions may cause the price
of the offered securities to be higher than it would otherwise be
in the absence of these transactions. These transactions, if
commenced, may be discontinued at any time.
Any
underwriters who are qualified market makers on the NASDAQ may
engage in passive market making transactions in the securities on
the NASDAQ in accordance with Rule 103 of Regulation M, during the
business day prior to the pricing of the offering, before the
commencement of offers or sales of the common stock. Passive market
makers must comply with applicable volume and price limitations and
must be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded.
The
underwriters, dealers and agents may engage in other transactions
with us, or perform other services for us, in the ordinary course
of their business. We will describe such relationships in the
prospectus supplement naming the underwriter and the nature of any
such relationship.
LEGAL MATTERS
The
validity of the securities being offered hereby will be passed on
by Latham & Watkins, LLP, San Diego, California. Any
underwriters, dealers or agents will also be advised about the
validity of the securities and other legal matters by their own
counsel, which will be named in the prospectus
supplement.
EXPERTS
The
consolidated financial statements as of December 31, 2021 and 2020
and for each of the two years in the period ended December 31, 2021
incorporated by reference in this prospectus have been so
incorporated in reliance on the report of BDO USA, LLP, an
independent registered public accounting firm, incorporated herein
by reference, given on the authority of said firm as experts in
auditing and accounting. The report on the consolidated financial
statements contains an explanatory paragraph regarding the
Company's ability to continue as a going concern.
WHERE YOU CAN FIND MORE
INFORMATION
We
are a reporting company and file annual, quarterly and current
reports, proxy and information statements and other information
with the SEC. This prospectus is part of a Registration Statement
that we have filed with the SEC relating to the securities to be
offered under this prospectus. This prospectus does not contain all
of the information set forth in the Registration Statement and the
exhibits to the Registration Statement. For further information
with respect to us and the securities to be offered under this
prospectus, we refer you to the Registration Statement and the
exhibits and schedules filed as a part of the Registration
Statement. The SEC maintains an internet site that contains
reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, where you
may read and copy the Registration Statement, as well as our
reports, proxy and information statements and other information.
The address of the SEC’s web site is www.sec.gov. We
maintain a website at www.adamispharmaceuticals.com.
Information contained in or accessible through our website does not
constitute a part of this prospectus.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The
SEC allows us to incorporate by reference into this prospectus
certain information we file with it, which means that we can
disclose important information by referring you to those documents.
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 (excluding any portions
of any Form 8-K that are not deemed “filed” pursuant to the General
Instructions of Form 8-K):
|
● |
our Annual Report on
Form 10-K for the fiscal year ended December 31, 2021, as filed
with the SEC on March 31, 2022, and the amendment there to filed on
Form 10-K/A on May 2, 2022; |
|
● |
our Quarterly Report on
Form 10-Q for the quarter ended March 31, 2022, as filed with
the SEC on May 13, 2021; |
|
● |
our Quarterly Report on
Form 10-Q for the quarter ended June 30, 2022, as filed with
the SEC on August 10, 2022; |
|
● |
our Current Reports on Form 8-K, as filed with the SEC on
January 4, 2022,
January 10, 2022,
February 18, 2022,
March 3, 2022,
March 28, 2022,
March 31, 2022,
April 11, 2022,
May 9, 2022,
May 16, 2022,
May 19, 2022,
May 26, 2022,
June 17, 2022,
June 24, 2022,
July 6, 2022,
July 29, 2022,
August 1, 2022 and
August 17, 2022; and |
|
● |
the description of our common stock contained in our
Form 8-A filed on December 11, 2013, including any
amendments thereto or reports filed for the purposes of updating
this description. |
We
also incorporate by reference any future filings (other than
Current Reports furnished under Items 2.02 or 7.01 of Form 8-K and
exhibits filed on such form that are related to such items unless
such Form 8-K expressly provides to the contrary) made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(i) after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to
effectiveness of the registration statement, and (ii) after the
effectiveness of the registration statement but prior to the
termination of the offering of the securities covered by this
prospectus, excluding, in each case, information deemed furnished
and not filed.
Any
statement contained in this prospectus, or in a document
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded to the extent that a
statement contained herein, or in any subsequently filed document
that also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We
will provide to each person, including any beneficial owner, to
whom this prospectus is delivered, upon written or oral request, at
no cost to the requester, a copy of any and all of the information
that is incorporated by reference in this prospectus.
Requests
for such documents should be directed to:
Adamis
Pharmaceuticals Corporation
11682 El Camino Real, Suite 300
San Diego, California 92130
Attention: Corporate Secretary
You
may also access the documents incorporated by reference in this
prospectus through our website at
www.adamispharmaceuticals.com. Except for the specific
incorporated documents listed above, no information available on or
through our website shall be deemed to be incorporated in this
prospectus or the registration statement of which it forms a
part.
Statements
contained in this prospectus as to the contents of any contract or
other documents are not necessarily complete, and in each instance
investors are referred to the copy of the contract or other
document filed as an exhibit to the Registration Statement, each
such statement being qualified in all respects by such reference
and the exhibits and schedules thereto.
ADAMIS
PHARMACEUTICALS CORPORATION
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
,
2022
SUBJECT
TO COMPLETION, DATED SEPTEMBER 9, 2022
PROSPECTUS
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 9, 2022
PROSPECTUS
ADAMIS PHARMACEUTICALS CORPORATION
697,674 Shares of Common Stock Underlying
Series C Convertible Preferred Stock
750,000 Shares of Common Stock Underlying Warrants
This prospectus relates to the resale from time to time by the
selling stockholder named in this prospectus (the “Selling
Stockholder”) of up to (i) 697,674 shares of our common stock, par
value $0.0001 per share (the “Common Stock”), that are issuable
upon the conversion of outstanding shares of our Series C
Convertible Preferred Stock, par value $0.0001 per share (the
“Series C Preferred”), and (ii) 750,000 shares of our Common Stock
that are issuable upon the exercise of outstanding warrants (the
“Warrants”) to purchase shares of our Common Stock. The shares of
Series C Preferred and Warrants were initially issued in connection
with a private placement, and the shares of Common Stock underlying
such securities are being registered for resale hereby pursuant to
the Selling Stockholder’s registration rights under a registration
rights agreement between us and the Selling Stockholder.
The Selling Stockholder may offer, sell or distribute all or a
portion of its shares of our Common Stock publicly or through
private transactions at prevailing market prices or at negotiated
prices. We will not receive any of the proceeds from the sale of
the shares of our Common Stock owned by the Selling Stockholder. We
will bear all costs, expenses and fees in connection with the
registration of these shares of our common stock, including with
regard to compliance with state securities or “blue sky” laws. The
Selling Stockholder will bear all commissions and discounts, if
any, attributable to its sale of shares of our Common Stock.
Our Common Stock is listed on the Nasdaq Capital Market under the
symbol “ADMP”. On September 7, 2022, the last reported sale price
of our Common Stock was $0.33 per share.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties referenced
under the heading “Risk Factors” on page 4 of this prospectus and
contained in our filings made with the Securities and Exchange
Commission before investing in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
,
2022.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the United States Securities and Exchange Commission, or
the SEC, using a “shelf” registration process. Under this shelf
registration process, the Selling Stockholder may, from time to
time, sell up to (i) up to 697,674 shares of our Common Stock upon
the conversion of the outstanding Series C Preferred and (ii)
750,000 shares of our Common Stock upon the exercise of the
outstanding Warrants as described in this prospectus.
This prospectus and the documents incorporated into this prospectus
by reference include important information about us, the shares
being offered by the Selling Stockholder and other information you
should know before investing in our Common Stock. To the extent
there is a conflict between the information contained in this
prospectus, on the one hand, and the information contained in any
document incorporated by reference into this prospectus that was
filed with the SEC before the date of this prospectus, on the other
hand, you should rely on the information in this prospectus.
However, if any statement in one of these documents is inconsistent
with a statement in another document having a later date-for
example, a document incorporated by reference in this
prospectus-the statement in the document having the later date
modifies or supersedes the earlier statement as our business,
financial condition, results of operations and prospects may have
changed since the earlier dates.
We further note that the representations, warranties and covenants
made by us in any agreement, including the Purchase Agreement (as
defined below), that is filed as an exhibit to any document that is
incorporated by reference herein were made solely for the benefit
of the parties to such agreement, including, in some cases, for the
purpose of allocating risk among the parties to such agreement, and
should not be deemed to be a representation, warranty or covenant
to you. Moreover, such representations, warranties or covenants
were accurate only as of the date when made. Accordingly such
representations, warranties and covenants should not be relied on
as accurately representing the current state of our affairs.
You should rely on this prospectus and the information incorporated
or deemed to be incorporated by reference into this prospectus. We
have not authorized, and the Selling Stockholder has not
authorized, anyone to provide you with information that is in
addition to or different from that contained or incorporated by
reference into this prospectus. Neither we nor the Selling
Stockholder takes responsibility for, or can provide assurance as
to the reliability of, any other information that others may give
you. The Selling Stockholder will not make an offer to sell or seek
offers to buy shares of our Common Stock in any jurisdiction where
offers and sales are not permitted. You should not assume that the
information contained or incorporated by reference in this
prospectus is accurate as of any date other than as of the date of
this prospectus or in the case of the documents incorporated by
reference, the date of such documents regardless of the time of
delivery of this prospectus or any sale of our Common Stock. Our
business, financial condition, liquidity, results of operations and
prospects may have changed since those dates. You should read this
prospectus, the documents incorporated by reference into this
prospectus, and any free writing prospectus that we may authorize
for use in connection with this offering, in their entirety before
making an investment decision. You should also read and consider
the information in the documents to which we have referred you in
the sections of this prospectus titled “Where You Can Find More
Information” and “Incorporation of Certain Documents by
Reference.”
The Adamis Pharmaceuticals logo and other trademarks or service
marks of Adamis Pharmaceuticals Corporation appearing in this
prospectus are the property of Adamis Pharmaceuticals Corporation.
All other brand names or trademarks appearing in this prospectus
are the property of their respective owners.
PROSPECTUS SUMMARY
This summary description about us and our business highlights
selected information contained elsewhere in this prospectus or
incorporated in this prospectus by reference. This summary does not
contain all of the information you should consider before buying
our securities. You should carefully read this entire prospectus,
including each of the documents incorporated herein by reference,
before making an investment decision. Unless the context otherwise
requires, the terms “Adamis,” “the Company,” “we,” “us” and “our”
in this prospectus refer to Adamis Pharmaceuticals Corporation and
its subsidiaries.
Business Overview of Adamis Pharmaceuticals Corporation
We are a specialty biopharmaceutical company focused on developing
and commercializing products in various therapeutic areas,
including allergy, opioid overdose, respiratory and inflammatory
disease. Our products and product candidates in the allergy,
respiratory, and opioid overdose markets include: SYMJEPI™
(epinephrine) Injection 0.3mg, which was approved by the U.S. Food
and Drug Administration, or FDA, in 2017 for use in the emergency
treatment of acute allergic reactions, including anaphylaxis, for
patients weighing 66 pounds or more; SYMJEPI (epinephrine)
Injection 0.15mg, which was approved by the FDA in September 2018,
for use in the treatment of anaphylaxis for patients weighing 33-65
pounds; ZIMHI™ (naloxone HCL Injection, USP) 5 mg/0.5 mL, which was
approved by the FDA in October 2021 for the treatment of opioid
overdose; and Tempol, an investigational drug. In June 2020, we
entered into a license agreement with a third party to license
rights under patents, patent applications and related know-how of
the licensor relating to Tempol. The exclusive license includes the
worldwide use under the licensed patent rights and related rights
for the fields of COVID-19 infection, asthma, respiratory syncytial
virus infection, and influenza infection, as well as the use of
Tempol as a therapeutic for reducing radiation-induced dermatitis
in patients undergoing treatment for cancer. We commenced Phase 2/3
clinical trial start-up activities to examine the safety and
efficacy of Tempol in COVID-19 patients early in the infection, and
on September 2, 2021, we announced the initiation of patient dosing
in the trial. In February 2022 we announced the enrollment and
dosing of more than 100 subjects in the Phase 2/3 trial, and on
March 14, 2022, we announced that the Data Safety Monitoring Board,
or DSMB, overseeing the Phase 2/3 clinical trial met to evaluate
the clinical and safety data from the first planned interim
analysis and, following its evaluation, recommended that the study
continue without modification. The DSMB is composed of subject
matter experts and can unblind the data to determine the treatment
effects of the subjects in the trial. On June 1, 2022, we announced
that the DSMB had met again to evaluate interim clinical and safety
data for the trial and based on an interim review of the data,
determined that the study can continue as planned. On August 10,
2022, we announced that the DSMB is scheduled to meet near the end
of September to review unblinded interim data including safety and
efficacy. We will not have access to unblinded trial data until the
trial has concluded and the final study data is compiled and
reviewed. At the September meeting, the DSMB plans to evaluate the
primary efficacy endpoint, the sustained resolution of COVID-19
symptoms, as well as safety in individuals who are at high risk for
disease progression. Where applicable, we intend to create low cost
therapeutic alternatives to existing treatments and to submit NDAs
under Section 505(b)(2), of the U.S. Food, Drug & Cosmetic Act,
as amended, or FDCA, or Section 505(j) Abbreviated New Drug
Applications, or ANDAs, to the FDA, in order to potentially reduce
the time to market and to save on costs, compared to those
associated with Section 505(b)(1) NDAs for new drug products.
To achieve our goals and support our overall strategy, we will need
to raise additional funding in the future and make significant
investments in, among other things, product development and working
capital.
Private Placement of Shares of Preferred Stock and Warrants
The following is a summary of the transaction relating to the
securities being registered hereunder:
On July 5, 2022, the Company entered into a Securities Purchase
Agreement (the “Purchase Agreement”) with Lincoln Park Capital
Fund, LLC (the “Selling Stockholder”), pursuant to which the
Company issued to the Selling Stockholder, in a private placement
transaction (the “Offering”), an aggregate of (i) 3,000 shares of
Series C Convertible Preferred Stock, par value $0.0001 per share
(the “Series C Preferred”), initially convertible into 697,674 shares of the
Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and (ii) warrants to purchase up to an aggregate of
750,000 shares of Common Stock (the “Warrants”), at an exercise
price of $0.47 per share (subject to adjustment as provided in the
Warrants), for an aggregate subscription amount equal to $300,000.
The Warrants become exercisable commencing January 3, 2023, and
have a term ending on January 5, 2028.
In connection with the Offering, the Company entered into the
Registration Rights Agreement with the Selling Stockholder (the
“Registration Rights Agreement”). Pursuant to the terms of the
Registration Rights Agreement and subject to certain restrictions,
all shares of Common Stock issued and issuable upon conversion in
full of the Series C Preferred and exercise in full of the Warrants
(together with any additional shares of Common Stock issued and
issuable in connection with any anti-dilution provisions in the
Series C Preferred or the Warrants and any securities issued or
issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing)
are entitled to registration rights (collectively, the “Registrable
Securities”).
The Registration Rights Agreement provides that (i) in the event
all of the Series C Preferred has not been redeemed, the Company
will, within 30 calendar days following the effective date of the
Reverse Stock Split Amendment (as defined in the Registration
Rights Agreement), or (ii) in the event that all of the Series C
Preferred has been fully redeemed, the Company will, within 120
calendar days following the date of the Purchase Agreement, prepare
and file with the SEC a registration statement covering the resale
of all of the Registrable Securities. The Company will use its
commercially reasonable efforts to have such registration statement
declared effective as promptly as possible after the filing
thereof, but in any event no later than (A) the 60th calendar day
following the effective date of the Reverse Stock Split Amendment
(or in the event of a “full review” by the SEC, the 90th calendar
day following the effective date of the Reverse Stock Split
Amendment), in the event all of the Series C Preferred has not been
fully redeemed, or (B) the 150th calendar day following the date of
the Purchase Agreement (or in the event of a “full review” by the
SEC, the 180th calendar day following the date of the Purchase
Agreement), in the event all of the Series C Preferred has been
fully redeemed. The Company will bear the expenses incurred in
connection with the filing of any registration statements filed
pursuant to the terms of the Registration Rights Agreement. The
Company and the Stockholder agree in the Registration Rights
Agreement to provide customary indemnification in connection with
any offerings of Common Stock effected pursuant to the terms of the
Registration Rights Agreement.
Corporate Information
We are incorporated under the laws of the State of Delaware. Our
principal executive offices are located at 11682 El Camino Real,
Suite 300, San Diego, CA 92130, and our telephone number is (858)
997-2400. Our website address is: www.adamispharmaceuticals.com. We
have included our website address as a factual reference and do not
intend it to be an active link to our website. The information that
can be accessed through our website is not part of this prospectus,
and investors should not rely on any such information in deciding
whether to purchase our Common Stock.
THE OFFERING
|
Issuer |
Adamis Pharmaceuticals
Corporation |
| |
|
|
| |
Shares
of Common Stock Offered |
|
| |
By the Selling
Stockholder |
Up to 1,447,674 shares
of Common Stock |
| |
|
|
| |
Use of
proceeds |
We will not receive
any proceeds from the sale of shares of Common Stock by the Selling
Stockholder |
| |
|
|
| |
Risk
factors |
Investing in our
securities involves a high degree of risk. See “Risk Factors”
beginning on page 4 of this prospectus and under a similar heading
in any documents included or incorporated by reference
herein. |
| |
|
|
| |
Nasdaq
Capital Market symbol |
“ADMP.” |
RISK FACTORS
Investment in our securities involves risks. Prior to making a
decision about investing in our securities, you should consider
carefully all of the information included in and incorporated by
reference or deemed to be incorporated by reference in this
prospectus, including the risk factors incorporated by reference
herein from our Annual Report on Form 10-K for the year ended
December 31, 2021, filed with the SEC on March 31, 2022, as updated
by annual, quarterly and other reports and documents we file with
the SEC after the date of this prospectus and that are incorporated
by reference herein. Each of these risk factors could have a
material adverse effect on our business, results of operations,
financial position or cash flows, which may result in the loss of
all or part of your investment. The risks and uncertainties we have
described are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently
consider immaterial may also impair our business operations. If any
of these risks actually occur, our business and financial results
could be harmed. In that case, the trading price of our Common
Stock or other securities could decline.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into
this prospectus contain certain forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of
the Securities Exchange Act of 1934, as amended, or the Exchange
Act, in reliance upon the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Forward-looking
statements include, without limitation, statements regarding our
future product development and commercialization activities and
costs, the revenue potential (licensing, royalty and sales) of our
products and product candidates, the impact of COVID-19 on our
business, the success, safety and efficacy of our drug products,
revenues and revenue assumptions, clinical studies, including
designs and implementation, development and commercialization
timelines, product acquisitions, accounting principles, litigation
expenses, liquidity and capital resources and trends, and other
statements containing forward-looking words, such as, “believes,”
“may,” “could,” “would,” “will,” “expects,” “intends,” “estimates,”
“anticipates,” “plans,” “seeks,” or “continues” or the negative
thereof or variation thereon or similar terminology (although not
all forward-looking statements contain these words). Such
forward-looking statements are based on the beliefs of our
management as well as assumptions made by and information currently
available to our management. Readers should not put undue reliance
on these forward-looking statements. Forward-looking statements are
inherently subject to risks and uncertainties, some of which cannot
be predicted or quantified; therefore, our actual results may
differ materially from those described in any forward-looking
statements.
Factors that might cause these differences include, but are not
limited to, those described in our Annual Report on Form 10-K for
the fiscal year ended December 31, 2021, as updated by annual,
quarterly and other reports and documents we file with the SEC, as
well as those discussed elsewhere in this prospectus, and the
following factors:
|
● |
our ability to continue as a going
concern and ability to raise required additional capital; |
|
● |
the commercial success of our SYMJEPI™
(epinephrine) Injection 0.3mg and 0.15 mg products, our ZIMHI™
(naloxone HCL Injection, USP) 5 mg/0.5 mL product, and amounts that
we may receive with respect to sales of such products; |
|
● |
future actions by the FDA and other
regulatory agencies regarding our product candidates and our
regulatory filings relating to our product candidates, including
without limitation concerning our Tempol product candidate; |
|
● |
the success of our product research
and development programs; |
|
● |
our future development plans
concerning our product candidates, and ongoing and planned
preclinical or clinical trials for our product candidates,
including the timing of initiation of these trials, the timing of
progress of those trials, anticipated completion dates of trials,
and the results of any such trials, including without limitation
the timing and outcome of our current Phase 2/3 clinical trial
relating to our Tempol product candidate; |
|
● |
the timing of, or delay in the timing
of, commercial introduction of any of our products; |
|
● |
our ability to enter into
collaborations and agreements for the development and
commercialization of our products and product candidates, and the
potential benefits of any future commercialization or collaboration
agreements with third parties; |
|
● |
regulatory and personnel issues; |
|
● |
our ability to generate significant
revenues; |
|
● |
competition and market
developments; |
|
● |
the failure of any of our product
candidates, if approved, to achieve commercial success; |
|
● |
our ability to protect our
intellectual property from infringement by third parties; |
|
● |
the extent and enforceability of
intellectual property rights protections afforded by patents and
patent applications that we own or have licensed; |
|
● |
regulatory and health reform
legislation and regulations; |
|
● |
the introduction of technological
innovations or new commercial products by our competitors, and
competitive developments in the relevant markets; |
|
● |
the outcome of any legal proceedings
in which we are involved or in which we may in the future become
involved; |
|
● |
the effects of public health crises,
pandemics and epidemics, such as the COVID-19 pandemic; and |
|
● |
other risks and uncertainties detailed
from time to time in our SEC filings. |
We urge you to consider these factors carefully in evaluating the
forward-looking statements contained in this prospectus. All
subsequent written or oral forward-looking statements attributable
to our company or persons acting on our behalf are expressly
qualified in their entirety by these cautionary statements. The
forward-looking statements included in this prospectus are made
only as of the date of this prospectus. We undertake no obligation
to update publicly any forward-looking statements, whether as a
result of new information, future events or otherwise, except to
the extent that we are required to do so by law.
USE OF PROCEEDS
We are filing this prospectus pursuant to our contractual
obligation under the Registration Rights Agreement to the Selling
Stockholder. We will not receive any of the proceeds from the
resale of shares of our Common Stock from time to time by the
Selling Stockholder.
A portion of the shares covered by this prospectus are issuable
upon exercise of the Warrants to purchase shares of Common Stock.
Pursuant to conditions set forth in the Warrants, the Warrants are
exercisable under certain circumstances on a cashless basis, and
should the Selling Stockholder elect to exercise on a cashless
basis we will not receive any proceeds from the sale of Common
Stock issued upon the cashless exercise of the Warrants. The
holders of the Warrants are not obligated to exercise their
Warrants, and we cannot predict whether holders of the Warrants
will choose to exercise all or any of their Warrants or if they
will do so for cash or on a cashless basis. However, if all of the
Warrants were exercised for cash, we would receive gross proceeds
of approximately $325,500. We currently intend to use such
proceeds, if any, for working capital and general corporate
purposes.
The Selling Stockholder will pay any expenses incurred by the
Selling Stockholder for brokerage, accounting, tax or legal
services or any other expenses incurred by the Selling Stockholder
in disposing of these shares. We will bear all other costs, fees
and expenses incurred in effecting the registration of the shares
covered by this prospectus, including, without limitation, all
registration fees, listing fees of the Nasdaq Capital Market and
fees and expenses of our counsel and our accountants.
PLAN OF DISTRIBUTION
The Selling Stockholder and any of its pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the principal trading market or
any other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. The Selling Stockholder may use
any one or more of the following methods when selling
securities:
|
● |
ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers; |
|
● |
block trades in which the
broker-dealer will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to
facilitate the transaction; |
|
● |
purchases by a broker-dealer as
principal and resale by the broker-dealer for its account; |
|
● |
an exchange distribution in accordance
with the rules of the applicable exchange; |
|
● |
privately negotiated
transactions; |
|
● |
settlement of short sales; |
|
● |
in transactions through broker-dealers
that agree with the Selling Stockholder to sell a specified number
of such securities at a stipulated price per security; |
|
● |
through the writing or settlement of
options or other hedging transactions, whether through an options
exchange or otherwise; |
|
● |
a combination of any such methods of
sale; or |
|
● |
any other method permitted pursuant to
applicable law. |
The Selling Stockholder may also sell securities under Rule 144 or
any other exemption from registration under the Securities Act of
1933, as amended (the “Securities Act”), if available, rather than
under this prospectus.
Broker-dealers engaged by the Selling Stockholder may arrange for
other brokers-dealers to participate in sales. Broker-dealers may
receive commissions or discounts from the Selling Stockholder (or,
if any broker-dealer acts as agent for the purchaser of securities,
from the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2121; and in the case of a principal
transaction a markup or markdown in compliance with FINRA Rule
2121.
In connection with the sale of the securities or interests therein,
the Selling Stockholder may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholder may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholder may
also enter into option or other transactions with broker-dealers or
other financial institutions or create one or more derivative
securities which require the delivery to such broker-dealer or
other financial institution of securities offered by this
prospectus, which securities such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
The Selling Stockholder and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act in
connection with such sales. In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of
the securities purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The Selling
Stockholder has informed the Company that it does not have any
written or oral agreement or understanding, directly or indirectly,
with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred
by the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholder against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of
(i) the date on which the securities may be resold by the Selling
Stockholder without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
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.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholder will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholder
or any other person. We will make copies of this prospectus
available to the Selling Stockholder and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
SELLING STOCKHOLDER
The Common Stock being offered by the Selling Stockholder are those
shares previously issued or issuable to the Selling Stockholder
upon conversion of the Series C Preferred and exercise of the
Warrants. For additional information regarding the issuances of
those securities, see “Private Placement of Shares of Preferred
Stock and Warrants” above. We are registering the shares of
Common Stock in order to permit the Selling Stockholder to offer
the shares for resale from time to time. Except for the ownership
of the shares of Common Stock, Series C Preferred and the Warrants,
the Selling Stockholder has not had any material relationship with
us within the past three years.
The first two columns in the table below provide the name of the
Selling Stockholder and the number of shares of our Common Stock
beneficially owned by the Selling Stockholder prior to this
offering, without regard to any limitations on exercises. The
number of shares reflected are those beneficially owned by the
Selling Stockholders and the information is not necessarily
indicative of beneficial ownership for any other purpose.
Beneficial ownership is determined according to the rules of the
SEC, which generally provide that a person has beneficial ownership
of a security if he, she or it possesses sole or shared voting or
investment power over that security, including options and warrants
that are currently exercisable or exercisable within 60 days.
The third column in the table below lists the shares of Common
Stock being offered pursuant to this prospectus by the Selling
Stockholder. We have assumed that all shares of Common Stock
reflected in the table as being offered in the offering covered by
this prospectus will be sold from time to time in this offering. We
cannot provide an estimate as to the number of shares of Common
Stock that will actually be held by the Selling Stockholder upon
termination of the offering covered by this prospectus because the
Selling Stockholder may offer some, all or none of its shares of
Common Stock being offered in the offering.
In accordance with the terms of the Registration Rights Agreement,
this prospectus generally covers the resale of the maximum number
of shares of Common Stock issued and issuable upon conversion of
the Series C Preferred and exercise of the Warrants, determined as
if the outstanding shares of Series C Preferred and Warrants were
converted or exercised in full as of the trading day immediately
preceding the date this registration statement was initially filed
with the SEC, without regard to any limitations on the conversion
of the Series C Preferred or exercise of the Warrants.
Under the terms of the Series C Preferred and Warrants, a Selling
Stockholder may not convert or exercise, as applicable, shares of
Series C Preferred and/or Warrants to the extent such conversion or
exercise would cause such Selling Stockholder, together with its
affiliates and attribution parties, to beneficially own a number of
shares of Common Stock which would exceed 4.99% or 9.99%, as
applicable, of our then outstanding Common Stock following such
exercise, excluding for purposes of such determination shares of
Common Stock issuable upon conversion of such Series C Preferred
and exercise of such Warrants which have not been exercised. The
number of shares in the second and fourth columns below do not
reflect this limitation. The Selling Stockholder may sell all, some
or none of its shares in this offering. See “Plan of
Distribution.”
Name of Selling
Shareholder |
Number of shares of
Common Stock
Owned Prior to
Offering |
Maximum Number
of shares of Common
Stock to be Sold
Pursuant to this
Prospectus |
Number of shares of Common
Stock Owned After Offering |
|
Lincoln Park Capital Fund, LLC |
2,547,674(1) |
1,447,674(2) |
1,100,000 |
|
(1) |
Includes 697,674 shares of Common Stock that are issuable upon
conversion of the shares of Series C Preferred held by the Selling
Stockholder, and 750,000 shares of Common Stock that are issuable
upon exercise of the Warrants held by the Selling Stockholder. Also
includes 1,100,000 shares Common Stock that are issuable upon
exercise of warrants held by the Selling Stockholder other than the
Warrants. Lincoln Park Capital, LLC (“LPC”) is the Managing Member
of Lincoln Park Capital Fund LLC (“Lincoln Park”). Rockledge
Capital Corporation (“RCC”) and Alex Noah Investors, LLC (“Alex
Noah”) are the managing Members of LPC. Josh Scheinfeld is the
president and sole shareholder of RCC as well as a principal of
LPC. Mr. Cope is the president and sole shareholder of Alex Noah,
as well as a principal of LPC. As a result of the foregoing, Mr.
Scheinfeld and Mr. Cope have shared voting and shared investment
power over shares of Common Stock of the Company held directly by
Lincoln Park. The address of Lincoln Park is 440 N. Wells Street,
Suite 410, Chicago, Illinois 60654. |
|
(2) |
Assumes that the Selling Stockholder disposes of all of the
shares of Common Stock covered by this prospectus and does not
acquire beneficial ownership of any additional shares. The
registration of these shares does not necessarily mean that the
Selling Stockholders will sell all or any portion of the shares
covered by this prospectus. |
LEGAL MATTERS
The validity of the securities offered by this prospectus will be
passed upon by Latham & Watkins LLP, San Diego, CA.
EXPERTS
The consolidated financial statements as of December 31, 2021 and
2020 and for each of the two years in the period ended December 31,
2021 incorporated by reference in this prospectus have been so
incorporated in reliance on the report of BDO USA, LLP, an
independent registered public accounting firm, incorporated herein
by reference, given on the authority of said firm as experts in
auditing and accounting. The report on the consolidated financial
statements contains an explanatory paragraph regarding the
Company's ability to continue as a going concern.
WHERE YOU CAN FIND MORE
INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy and information statements and other information
with the SEC. This prospectus is part of a Registration Statement
that we have filed with the SEC relating to the securities to be
offered under this prospectus. This prospectus does not contain all
of the information set forth in the Registration Statement and the
exhibits to the Registration Statement. For further information
with respect to us and the securities to be offered under this
prospectus, we refer you to the Registration Statement and the
exhibits and schedules filed as a part of the Registration
Statement. The SEC maintains an internet site that contains
reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, where you
may read and copy the Registration Statement, as well as our
reports, proxy and information statements and other information.
The address of the SEC’s web site is www.sec.gov. We
maintain a website at www.adamispharmaceuticals.com.
Information contained in or accessible through our website does not
constitute a part of this prospectus.
INFORMATION INCORPORATED BY
REFERENCE
The SEC allows us to incorporate by reference into this prospectus
certain information we file with it, which means that we can
disclose important information by referring you to those documents.
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 (excluding any portions
of any Form 8-K that are not deemed “filed” pursuant to the General
Instructions of Form 8-K):
|
● |
our Annual Report on
Form 10-K for the fiscal year ended December 31, 2021, as filed
with the SEC on March 31, 2022, and the amendment there to filed on
Form 10-K/A on May 2, 2022; |
|
● |
our Quarterly Report on
Form 10-Q for the quarter ended March 31, 2022, as filed with
the SEC on May 13, 2021; |
|
● |
our Quarterly Report on
Form 10-Q for the quarter ended June 30, 2022, as filed with
the SEC on August 10, 2022; |
|
● |
our Current Reports on Form 8-K, as filed with the SEC on
January 4, 2022,
January 10, 2022,
February 18, 2022,
March 3, 2022,
March 28, 2022,
March 31, 2022,
April 11, 2022,
May 9, 2022,
May 16, 2022,
May 19, 2022,
May 26, 2022,
June 17, 2022,
June 24, 2022,
July 6, 2022,
July 29, 2022,
August 1, 2022 and
August 17, 2022; and |
|
● |
the description of our common stock contained in our
Form 8-A filed on December 11, 2013, including any
amendments thereto or reports filed for the purposes of updating
this description. |
We also incorporate by reference any future filings (other than
Current Reports furnished under Items 2.02 or 7.01 of Form 8-K and
exhibits filed on such form that are related to such items unless
such Form 8-K expressly provides to the contrary) made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(i) after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to
effectiveness of the registration statement, and (ii) after the
effectiveness of the registration statement but prior to the
termination of the offering of the securities covered by this
prospectus, excluding, in each case, information deemed furnished
and not filed.
Any statement contained in this prospectus, or in a document
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded to the extent that a
statement contained herein, or in any subsequently filed document
that also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We will provide to each person, including any beneficial owner, to
whom this prospectus is delivered, upon written or oral request, at
no cost to the requester, a copy of any and all of the information
that is incorporated by reference in this prospectus.
Requests for such documents should be directed to:
Adamis Pharmaceuticals Corporation
11682 El Camino Real, Suite 300
San Diego, California 92130
Attention: Corporate Secretary
You may also access the documents incorporated by reference in this
prospectus through our website at
www.adamispharmaceuticals.com. Except for the specific
incorporated documents listed above, no information available on or
through our website shall be deemed to be incorporated in this
prospectus or the registration statement of which it forms a
part.
ADAMIS PHARMACEUTICALS CORPORATION
697,674 Shares of Common Stock Underlying Series C Convertible
Preferred Stock
750,000 Shares of Common Stock Underlying Warrants
PROSPECTUS
,
2022
Part II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses
(other than the actual registration fee), other than underwriting
discounts and commissions, payable by the Registrant in connection
with the sale of the securities being registered
|
Securities and Exchange Commission registration fee |
|
$ |
27,810 |
|
| FINRA filing
fee |
|
|
* |
|
| Accounting fees
and expenses |
|
|
* |
|
| Legal fees and
expenses |
|
|
* |
|
| Transfer agent
fees and expenses |
|
|
* |
|
|
Printing and miscellaneous expenses |
|
|
* |
|
|
Total |
|
$ |
* |
|
*These fees are calculated based on the number of issuances and
amount of securities offered and accordingly cannot be estimated at
this time. An estimate of the aggregate amount of these expenses
will be reflected in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, or the DGCL,
provides that a corporation may indemnify directors and officers as
well as other employees and individuals against expenses including
attorneys’ fees, judgments, fines and amounts paid in settlement in
connection with various actions, suits or proceedings, whether
civil, criminal, administrative or investigative other than an
action by or in the right of the corporation, a derivative action,
if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their
conduct was unlawful. A similar standard is applicable in the case
of derivative actions, except that indemnification only extends to
expenses including attorneys’ fees incurred in connection with the
defense or settlement of such actions, and the statute requires
court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the
corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation’s certificate
of incorporation, bylaws, agreement, a vote of stockholders or
disinterested directors or otherwise. Section 145 of the Delaware
General Corporation Law authorizes a court to award, or a
corporation’s board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities,
including reimbursement for expenses incurred, arising under the
Securities Act.
The Company’s amended and restated bylaws (the “Bylaws”) provide
that the Company will indemnify and hold harmless, to the fullest
extent permitted by Section 145 of the DGCL, as amended from time
to time, each of its directors and officers, and may indemnify its
employees and agents as set forth in the DGCL.
The DGCL permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability for:
|
● |
any breach of the director’s duty
of loyalty to the corporation or its stockholders; |
|
● |
acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law; |
|
● |
payments of unlawful dividends or
unlawful stock repurchases or redemptions; or |
|
● |
any transaction from which the
director derived an improper personal benefit. |
The Company’s restated certificate of incorporation and Bylaws
provide that, to the fullest extent permitted by applicable law,
none of our directors will be personally liable to us or our
stockholders for monetary damages. Any repeal or modification of
this provision will be prospective only and will not adversely
affect any limitation, right or protection of a director of our
company existing at the time of such repeal or modification.
We have also obtained liability insurance for our directors and
officers that insures our directors and officers, within the limits
and subject to the limitations of the policy, against certain
expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities that might be imposed as a
result of such actions, suits or proceedings, to which they are
parties by reason of being or having been directors or officers. We
may apply for insurance on behalf of any director, officer,
employee or other agent for liability arising out of his or her
actions, whether or not the DGCL would permit indemnification.
We have entered into indemnification agreements with our directors
and officers whereby we have agreed to indemnify our 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 interest of the Company. At
present, there is no pending litigation or proceeding involving a
director or officer of the Company regarding which indemnification
is sought, nor is the registrant aware of any threatened litigation
that may result in claims for indemnification.
See also the undertakings set out in response to Item 17
herein.
Item 16. Exhibits
| |
|
|
|
|
|
Incorporated
by
Reference |
Exhibit
No. |
|
Exhibit
Description |
|
Filed
Herewith |
|
Form/
File No. |
|
Date |
|
3.1 |
|
Restated Certificate
of Incorporation of the Registrant |
|
|
|
S-8 |
|
03/17/14 |
|
3.2 |
|
Certificate of
Designation of Preferences, Rights and Limitations of Series C
Convertible Preferred Stock |
|
|
|
8-K |
|
07/06/22 |
|
3.3 |
|
Certificate of
Amendment to the Restated Certificate of Incorporation |
|
|
|
8-K |
|
09/08/20 |
|
3.4 |
|
Amended and Restated
Bylaws of the Company |
|
|
|
8-K |
|
06/17/22 |
| 4.1 |
|
Reference is made to
Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8. |
|
|
|
|
|
|
|
4.2 |
|
Specimen stock
certificate for common stock |
|
|
|
8-K |
|
04/03/09 |
| 4.3 |
|
Form of
Indenture |
|
X |
|
|
|
|
| 4.4 |
|
Form of Debt
Security* |
|
|
|
|
|
|
| 4.4 |
|
Form of
Warrant |
|
|
|
8-K |
|
02/21/20 |
| 4.5 |
|
Form of
Unit* |
|
|
|
|
|
|
|
4.6 |
|
Common Stock Warrant,
dated as of July 5, 2022 |
|
|
|
8-K |
|
07/06/22 |
| 5.1 |
|
Opinion of Latham
& Watkins, LLP |
|
X |
|
|
|
|
|
10.1 |
|
Securities Purchase
Agreement dated as of July 5, 2022 |
|
|
|
8-K |
|
07/06/22 |
|
10.2 |
|
Registration Rights
Agreement dated as of July 5, 2022 |
|
|
|
8-K |
|
07/06/22 |
| 23.1 |
|
Consent of Latham
& Watkins, LLP
(included in Exhibit 5.1) |
|
X |
|
|
|
|
| 23.2 |
|
Consent of BDO USA,
LLP Independent Registered Public Accounting Firm |
|
X |
|
|
|
|
| 24.1 |
|
Power of Attorney
(included on signature pages to the registration
statement) |
|
X |
|
|
|
|
* To be filed by amendment hereto or pursuant to a Current Report
on Form 8-K to be incorporated herein by reference.
Item 17. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(i) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(A) To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(B) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(C) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i), (ii), and (iii) of
this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(ii) That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(iii) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(iv) That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to the effective date;
or
(v) That,
for the purpose of determining liability of the Registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will
be considered to offer and sell such securities to such
purchaser:
(A) Any
preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule
424;
(B) Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant;
(C) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
(D) Any
other communication that is an offer in the offering made by the
undersigned Registrant to the purchaser.
(b) The
undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding), is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
(i) For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(ii) For
the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in San Diego,
California, on September 9, 2022.
| |
By: |
/s/ David J.
Marguglio |
| |
|
David J. Marguglio |
| |
|
Chief Executive Officer |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints David
Marguglio and David Benedicto, and each of them singly, as such
person’s true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for such person and in
such person’s name, place and stead, in any and all capacities, to
sign any or all amendments (including, without limitation,
post-effective amendments) to this registration statement (or any
registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933), and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that any
said attorney-in-fact and agent, or any substitute or substitutes
of any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/ David J. Marguglio |
|
Chief
Executive Officer and Director |
|
September 9,
2022 |
|
David J. Marguglio
/s/ David C. Benedicto
|
|
(Principal Executive Officer)
Chief Financial Officer
|
|
September 9,
2022 |
|
David C. Benedicto
/s/ Richard C. Williams
|
|
(Principal Financial and Accounting Officer)
Chairman
|
|
September 9,
2022 |
|
Richard C. Williams
/s/ Howard C. Birndorf
|
|
Director |
|
September 9,
2022 |
|
Howard C. Birndorf
/s/ Meera J. Desai
|
|
Director |
|
September 9,
2022 |
| Meera J.
Desai |
|
|
|
|
| |
|
|
|
|
|
/s/ Vickie Reed |
|
Director |
|
September 9,
2022 |
| Vickie Reed |
|
|
|
|
| |
|
|
|
|
ADAMIS PHARMACEUTICALS CORPORATION
697,674 Shares of Common Stock
Underlying Series C Convertible Preferred Stock
750,000 Shares of Common Stock Underlying Warrants
PROSPECTUS
,
2022