|
PROSPECTUS
SUPPLEMENT |
Filed
Pursuant to Rule 424(b)(5) |
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|
| (To
Prospectus dated September 19, 2022) |
Registration
No. 333-267365 |
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|
Up to
13,794,000 Shares of Common Stock Issuable
Upon
Exercise of Warrants
This
prospectus supplement relates to the issuance and sale from time to
time of up to 13,794,000 shares (the “Warrant Shares”) of our
common stock, par value $0.0001 per share (the “Common Stock”),
that are issuable upon exercise of outstanding warrants to purchase
shares of Common Stock (the “Warrants”). The Warrants were
originally issued on August 5, 2019 pursuant to (i) a registration
statement on Form S-3, which was initially filed with the
Securities and Exchange Commission (the “SEC”) on July 9, 2018, and
(ii) a prospectus supplement, filed with the SEC on August 1,
2019.
Each
Warrant has an exercise price of $1.15 per share and is exercisable
until August 5, 2024. There is no established public trading market
for the Warrants and we do not expect a market to develop. We will
receive the proceeds from any cash exercises of the Warrants. If
all of the Warrants are exercised for cash, we would receive
aggregate gross proceeds of approximately $15,863,100.
Our
Common Stock is listed on The Nasdaq Capital Market under the
symbol “ADMP.” On September 22, 2022, the last reported sale price
of our Common Stock was $0.25 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 S-5 of this prospectus supplement and on
page 4 of the accompanying prospectus and contained in our filings
made with the SEC.
Neither
the SEC nor any state securities commission has approved or
disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus supplement or the accompanying
prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus supplement is September 23,
2022.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
SUPPLEMENT
This
prospectus supplement is part of the registration statement on Form
S-3 (the “Registration Statement”) that we filed with the
Securities and Exchange Commission, or the SEC, on September 9,
2022, using a “shelf” registration process to register sales of our
securities, under the Securities Act of 1933, as amended, or the
Securities Act. This document consists of two parts. The first part
is this prospectus supplement, including the documents incorporated
by reference, which describes the specific terms of this offering.
The second part is the accompanying prospectus filed with the SEC
as part of the Registration Statement, including the documents
incorporated by reference, that gives more general information,
some of which may not apply to this offering. Generally, when we
refer only to the “prospectus,” we are referring to both parts
combined. This prospectus supplement may add to, update or change
information in the accompanying prospectus and the documents
incorporated by reference into this prospectus supplement or the
accompanying prospectus.
This
prospectus supplement, the accompanying prospectus and the
documents incorporated in each by reference include important
information about us, the shares being offered 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 supplement, on the one hand, and the information
contained in any document incorporated by reference into this
prospectus supplement that was filed with the SEC before the date
of this prospectus supplement, on the other hand, you should rely
on the information in this prospectus supplement. 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
supplement-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 date.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference into this prospectus
supplement or the accompanying prospectus 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 supplement, the accompanying
prospectus and the information incorporated or deemed to be
incorporated by reference into this prospectus supplement and the
accompanying prospectus. We have 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
supplement and the accompanying prospectus. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are not offering to sell these securities in any jurisdiction where
the offer or sale is not permitted. You should not assume that the
information contained or incorporated by reference in this
prospectus supplement is accurate as of any date other than as of
the date of this prospectus supplement or in the case of the
documents incorporated by reference, the date of such documents
regardless of the time of delivery of this prospectus supplement 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 supplement, the
accompanying prospectus, the documents incorporated by reference,
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.”
Unless
otherwise indicated, all information contained or incorporated by
reference in this prospectus supplement and the accompanying
prospectus concerning our industry in general or any portion
thereof, including information regarding our general expectations
and market opportunity, is based on management’s estimates using
internal data, data from industry related publications, consumer
research and marketing studies and other externally obtained
data.
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 SUPPLEMENT
SUMMARY
This
summary description about us and our business highlights selected
information contained elsewhere in this prospectus supplement or in
the accompanying prospectus or incorporated by reference into this
prospectus supplement and the accompanying prospectus. This summary
does not contain all of the information you should consider before
buying securities in this offering. You should carefully read this
entire prospectus supplement and the accompanying prospectus,
including each of the documents incorporated herein or therein 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
0.3 mg, 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 0.15
mg, 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 high risk COVID-19 patients early in the infection, and
on September 2, 2021, we announced the initiation of patient dosing
in the trial. 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
September 21, 2022, we announced that the DSMB’s third planned
interim analysis of the Phase 2/3 clinical trial examining the
effects of Tempol in high risk subjects with early COVID-19
infection did not achieve its primary endpoint, as measured by
comparing the rate of sustained clinical resolution of symptoms of
COVID-19 at day 14 of Tempol versus the placebo, and that the DSMB
recommended that the study be halted early due to lack of efficacy.
The DSMB noted that no safety concerns were identified in the
subjects that received Tempol. Based on the recommendation from the
DSMB, we have halted the trial and will evaluate the unblinded data
from the trial to help determine the next developmental steps for
Tempol. 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.
Background
of the Warrants
The
following is a summary of the transaction relating to the
securities being registered hereunder:
On
August 5, 2019, the Company issued 13,800,000 shares of its common
stock and warrants to purchase up to 13,800,000 shares of its
common stock (the “Warrants”), in an underwritten public offering,
pursuant to an Underwriting Agreement with Raymond James &
Associates, Inc., as representative for the several underwriters
listed therein. The Warrants were exercisable commencing on the
date of issuance, will expire five years from the date of issuance,
and have an exercise price of $1.15 per share, subject to certain
adjustments.
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 securities.
The
Offering
|
Common
stock offered by us pursuant to this prospectus
supplement |
|
Up to
13,794,000 shares of common stock issuable upon exercise of the
Warrants. |
| |
|
|
| Exercise
Price for the Warrants |
|
$1.15
for each share of common stock issuable upon exercise of the
Warrants, subject to adjustment. |
| |
|
|
| Common
stock to be outstanding after this offering |
|
163,777,265
shares of common stock (assuming the issuance of all of the shares
of common stock issuable upon exercise of the Warrants) |
| |
|
|
| Use
of proceeds |
|
We
intend to use the net proceeds from any cash exercise of the
Warrants for general corporate purposes, which may include, without
limitation, expenditures relating to research, development and
clinical trials relating to our products and product candidates,
manufacturing, capital expenditures, hiring additional personnel,
acquisitions of new technologies or products, the payment,
repayment, refinancing, redemption or repurchase of existing or
future indebtedness, obligations or capital stock, and working
capital. We may also use the proceeds to acquire or invest in
complementary products, services, technologies or other assets,
although we have no agreements or understandings with respect to
any acquisitions or investments at this time. |
| |
|
|
| Dividend
policy |
|
We do
not anticipate paying any cash dividends on our common
stock. |
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|
|
| Nasdaq
Capital Market symbol |
|
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “ADMP.” |
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|
|
| Risk
factors |
|
Investing
in our securities involves a high degree of risk. See “Risk
Factors” beginning on page S-5 of this prospectus supplement, on
page 4 of the accompanying prospectus and under a similar heading
in any documents included or incorporated by reference herein or
therein. |
Unless
we indicate otherwise, all information in this prospectus,
including the number of shares of common stock to be outstanding
immediately after this offering as shown above, is based on
149,983,265 shares of common stock outstanding as of June 30, 2022,
and excludes:
|
|
● |
4,861,142
shares of common stock issuable upon exercise of outstanding stock
options under our equity incentive plans as of June 30, 2022, with
exercise prices ranging from $0.69 to $11.39 and having a weighted
average exercise price of $4.09 per share, and 650,000 shares
issuable upon the vesting of restricted stock units outstanding as
of June 30, 2022, awarded under our equity incentive
plans; |
| |
|
|
| |
● |
outstanding
warrants as of June 30, 2022, and the shares issuable upon exercise
of such warrants, to purchase the following numbers of shares of
common stock: 58,824 shares at an exercise price of $8.50 per
share; 13,794,000 shares at an exercise price of $1.15 per share;
350,000 shares at an exercise price of $0.70 per share; and 750,000
shares at an exercise price of $0.47 per share; and |
| |
|
|
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● |
3,000
shares of Series C Convertible Preferred Stock and 697,674 shares
of common stock issuable upon conversion of the Series C
Convertible Preferred Stock. |
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 supplement 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.
Risks
Related to this Offering
You will experience immediate and substantial dilution as a result
of this offering and may experience additional dilution in the
future.
Investors
receiving shares of common stock upon exercise of the Warrants will
incur immediate and substantial dilution in net tangible book value
per share. Given the Warrant exercise price of $1.15 per share,
investors receiving shares of common stock upon exercise of the
Warrants will effectively incur dilution of approximately $1.01 per
share in the net tangible book value of their purchased shares of
our common stock, assuming full exercise of all outstanding
Warrants as of June 30, 2022. Investors may experience further
dilution to the extent that shares of our common stock are issued
upon the exercise of outstanding stock options and
warrants.
Because we will have broad discretion and flexibility in how the
net proceeds from this offering are used, we may use the net
proceeds in ways in which you disagree.
We
currently intend to use the net proceeds from any cash exercise of
the Warrants for general corporate purposes, which include, without
limitation, expenditures relating to research, development and
clinical trials relating to our products and product candidates,
capital expenditures, hiring additional personnel, acquisitions of
new technologies or products, payment of obligations, the
repayment, refinancing, redemption or repurchase of existing or
future indebtedness or capital stock and working capital. We may
also use the proceeds to acquire or invest in complementary
products, services, technologies or other assets, although we have
no agreements or understandings with respect to any acquisitions or
investments at this time. See “Use of Proceeds” on page S-9 of this
prospectus supplement. Other than as described in the “Use of
Proceeds” section, we have not allocated specific amounts of the
net proceeds from this offering for any of the foregoing purposes.
Accordingly, our management will have significant discretion and
flexibility in applying the net proceeds of this offering. You will
be relying on the judgment of our management with regard to the use
of these net proceeds, and you will not have the opportunity, as
part of your investment decision, to assess whether the net
proceeds are being used appropriately. It is possible that the net
proceeds will be invested in a way that does not yield a favorable,
or any, return for you. The failure of our management to use such
funds effectively could have a material adverse effect on our
business, financial condition, operating results and cash
flow.
Future sales of substantial amounts of our common stock, or the
possibility that such sales could occur, could adversely affect the
market price of our common stock.
Future
sales in the public market of our common stock, including shares
offered by this prospectus supplement or shares issued upon
exercise of our outstanding stock options, warrants or convertible
securities, or the perception by the market that these issuances or
sales could occur, could lower the market price of our common stock
and value of our warrants or make it difficult for us to raise
additional capital. As of June 30, 2022, we had 149,983,265 shares
of common stock issued and outstanding, substantially all of which
we believe may be sold publicly, subject in some cases to volume
and other limitations, provisions or limitations in registration
rights agreements, or prospectus-delivery or other requirements
relating to the effectiveness and use of registration statements
registering the resale of such shares.
As of
June 30, 2022, we had reserved for issuance 4,861,142 shares of our
common stock issuable upon the exercise of outstanding stock
options under our equity incentive plans at a weighted-average
exercise price of $4.09 per share, we had outstanding restricted
stock units covering 650,000 shares of common stock, and we had
outstanding warrants to purchase 14,202,824 shares of common stock
at a weighted-average exercise price of $1.17 per share. Subject to
applicable vesting requirements, upon exercise of these options or
warrants or issuance of shares following vesting of the restricted
stock units, the underlying shares may be resold into the public
market, subject in some cases to volume and other limitations or
prospectus delivery requirements pursuant to registration
statements registering the resale of such shares. In the case of
outstanding options or warrants that have exercise prices that are
below the market price of our common stock from time to time, or
upon issuance of shares following vesting of restricted stock
units, our stockholders would experience dilution upon the exercise
of these options.
Interim analysis of our Phase 2/3 clinical trial examining
the effect of Tempol in high risk subjects with early COVID-19
infection did not achieve its primary endpoint, and the trial has
been halted.
On September 21, 2022, we announced that the third planned interim
analysis of our Phase 2/3 clinical trial examining the effects of
Tempol in high risk subjects with early COVID-19 infection did not
achieve its primary endpoint, as measured by comparing the rate of
sustained clinical resolution of symptoms of COVID-19 at day 14 of
Tempol versus placebo, and that the independent Data Safety
Monitoring Board, or DSMB, overseeing the trial recommended that
the study be halted early due to lack of efficacy. The DSMB noted
that no safety concerns were identified in the subjects that
received Tempol. Based on the recommendation from the DSMB, we have
halted the trial. There are no assurances concerning the next
development steps for Tempol.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus supplement and the documents incorporated by reference
into this prospectus supplement 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 supplement, and the
following factors:
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|
● |
our
ability to continue as a going concern and ability to raise
additional capital if needed; |
|
|
● |
the
commercial success of our SYMJEPI™ (epinephrine) Injection 0.3 mg
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; |
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|
● |
the
success of our product research and development
programs; |
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● |
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 outcome of our Phase 2/3 clinical trial relating to
our Tempol product candidate; |
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● |
the
timing of, or delay in the timing of, commercial introduction of
any of our products; |
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● |
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; |
|
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● |
our
ability to generate significant revenues; |
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● |
competition
and market developments; |
|
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● |
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; |
|
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● |
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; |
|
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● |
the
introduction of technological innovations or new commercial
products by our competitors, and competitive developments in the
relevant markets; |
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● |
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 supplement
are made only as of the date of this prospectus supplement. 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 registering shares of our common stock that may be issued upon
exercise of the Warrants. The exercise price of the Warrants is
$1.15 per share of common stock, subject to adjustment under the
terms of the Warrants. If all of the Warrants are exercised for
cash, we would receive aggregate gross proceeds of approximately
$15,863,100.
We
intend to use the net proceeds from any exercise of the Warrants
for general corporate purposes, which may include, without
limitation, expenditures relating to research, development and
clinical trials relating to our products and product candidates,
manufacturing, capital expenditures, hiring additional personnel,
acquisitions of new technologies or products, the payment,
repayment, refinancing, redemption or repurchase of existing or
future indebtedness, obligations or capital stock, and working
capital. We may also use the proceeds to acquire or invest in
complementary products, services, technologies or other assets,
although we have no agreements or understandings with respect to
any acquisitions or investments at this time.
We
have not determined the amounts we plan to spend on any of the
areas listed above or the timing of these expenditures. As a
result, our management will have broad discretion to allocate the
net proceeds from any cash exercises of the Warrants. Pending
application of the net proceeds as described above, we expect to
invest the net proceeds in short-term, interest-bearing,
investment-grade securities pursuant to our investment
policy.
DILUTION
Upon
exercise of the Warrants, a Warrant holder’s ownership interest in
our common stock will be diluted immediately to the extent of the
difference between the exercise price per Warrant and the pro forma
net tangible book value per share of our common stock at the time
of exercise of such Warrant.
Net
tangible book value represents the amount of our total tangible
assets reduced by our total liabilities and preferred stock.
Tangible assets equal our total assets less goodwill and intangible
assets. Net tangible book value per share represents our net
tangible book value divided by the number of shares of common stock
outstanding. As of June 30, 2022, our net tangible book value was
$6,556,382 and our net tangible book value per share was
approximately $0.04.
After
giving effect to the exercise of all Warrants for an aggregate of
13,794,000 shares of Common Stock at an exercise price of $1.15 per
share, our as adjusted net tangible book value would have been
approximately $22,419,482 or approximately $0.14 per share of
common stock, as of June 30, 2022. This represents an immediate
increase in net tangible book value of approximately $0.10 per
share to existing stockholders and an immediate dilution of
approximately $1.01 per share to holders of Warrants receiving
shares on exercise of the Warrants. The following table illustrates
this calculation on a per share basis.
| Public
offering price per share |
|
$ |
1.15 |
| |
|
|
|
|
Net
tangible book value per share as of June 30, 2022 |
|
$ |
.04 |
| |
|
|
|
| Increase
in net tangible book value per share attributable to exercise of
all Warrants |
|
$ |
.10 |
| |
|
|
|
| Adjusted
net tangible book value per share after giving effect to exercise
of all Warrants |
|
$ |
.14 |
| |
|
|
|
| Dilution
in net tangible book value per share to Warrant investors
exercising Warrants |
|
$ |
1.01 |
The
calculation of net tangible book value as of June 30, 2022 in the
table above is based on 149,983,265 shares of common stock
outstanding, and excludes the following:
|
|
● |
4,861,142
shares of common stock issuable upon exercise of outstanding stock
options under our equity incentive plans as of June 30, 2022, with
exercise prices ranging from $0.69 to $11.39 and having a weighted
average exercise price of $4.09 per share, and 650,000 shares
issuable upon the vesting of restricted stock units outstanding as
of June 30, 2022, awarded under our equity incentive
plans; |
| |
|
|
| |
● |
outstanding
warrants as of June 30, 2022, and the shares issuable upon exercise
of such warrants, to purchase the following numbers of shares of
common stock: 58,824 shares at an exercise price of $8.50 per
share; 13,794,000 shares at an exercise price of $1.15 per share;
350,000 shares at an exercise price of $0.70 per share; and 750,000
shares at an exercise price of $0.47 per share; and
|
| |
|
|
| |
● |
3,000
shares of Series C Convertible Preferred Stock and 697,674 shares
of common stock issuable upon conversion of the Series C
Convertible Preferred Stock. |
CAPITALIZATION
The
following table sets forth our consolidated cash and cash
equivalents and capitalization as of June 30, 2022. Such
information is set forth on the following basis:
|
|
● |
on an
actual basis; and |
| |
● |
on an
as adjusted basis, giving effect to the issuance of common stock
upon exercise of the Warrants at an exercise price of $1.15 per
share. |
| |
|
|
You
should read this table together with the section of this prospectus
supplement entitled “Use of Proceeds” and with the financial
statements and related notes and the other information that we
incorporated by reference into this prospectus supplement and the
accompanying prospectus, including our Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q that we file from time to time
with the SEC.
| |
|
As of
June 30, 2022 |
|
| |
|
Actual |
|
|
As Adjusted |
|
| |
|
(in
thousands,
except per share amounts) |
|
|
Cash and cash equivalents |
|
$ |
8,876 |
|
|
$ |
24,739 |
|
|
Total indebtedness |
|
$ |
10,652 |
|
|
|
10,652 |
|
|
Stockholders’ equity: |
|
|
|
|
|
|
|
|
| Preferred
Stock, par value $0.0001 per share; 10,000,000 shares authorized; 0
issued and outstanding at June 30, 2022 |
|
|
— |
|
|
|
— |
|
| Common
Stock, par value $0.0001 per share; 200,000,000 shares authorized;
150,506,222 issued, 149,983,265 outstanding at June 30, 2022 |
|
|
15 |
|
|
|
16 |
|
|
Additional paid-in capital |
|
$ |
303,870 |
|
|
|
319,732 |
|
|
Accumulated Deficit |
|
|
(296,838 |
) |
|
|
(296,838 |
) |
|
Treasury Stock, 522,957 Shares, at cost |
|
|
(5 |
) |
|
|
(5 |
) |
|
Total stockholders’ equity |
|
$ |
7,042 |
|
|
|
22,905 |
|
|
Total capitalization |
|
$ |
7,042 |
|
|
|
22,905 |
|
The
calculation in the table above excludes the following as of June
30, 2022:
|
|
● |
4,861,142
shares of common stock issuable upon exercise of outstanding stock
options under our equity incentive plans as of June 30, 2022, with
exercise prices ranging from $0.69 to $11.39 and having a weighted
average exercise price of $4.09 per share, and 650,000 shares
issuable upon the vesting of restricted stock units outstanding as
of June 30, 2022, awarded under our equity incentive
plans; |
| |
● |
outstanding
warrants as of June 30, 2022, and the shares issuable upon exercise
of such warrants, to purchase the following numbers of shares of
common stock: 58,824 shares at an exercise price of $8.50 per
share; 13,794,000 shares at an exercise price of $1.15 per share;
350,000 shares at an exercise price of $0.70 per share; and 750,000
shares at an exercise price of $0.47 per share; and |
| |
● |
3,000
shares of Series C Convertible Preferred Stock and 697,674 shares
of common stock issuable upon conversion of the Series C
Convertible Preferred Stock. |
| |
|
|
MARKET FOR OUR COMMON
STOCK
Our
common stock, $0.0001 par value, is listed on the Nasdaq Capital
Market under the symbol “ADMP.” As of August 31, 2022, we had
approximately 81 common stockholders of record. The number of
record holders was determined from the records of our transfer
agent and does not include beneficial owners of our common stock
whose shares are held in the names of various security brokers,
dealers, and registered clearing agencies.
Dividend
Policy
We
have not previously declared or paid any dividends on our common
stock. The payment of dividends on our common stock in the future
will depend on our profitability at the time, cash available for
those dividends, and such other factors as our board of directors
may consider appropriate. We do not anticipate paying dividends on
our common stock in the foreseeable future.
DESCRIPTION OF SECURITIES WE
ARE OFFERING
We
are offering shares of our common stock upon exercise of the
Warrants to purchase shares of our common stock. The following
description of our common stock summarizes the material terms and
provisions thereof.
Common
Stock
A
description of the material terms and provisions of our common
stock is set forth in the section entitled “Description of Capital
Stock We May Offer” beginning on page 5 of the accompanying
prospectus.
Notice
to Non-U.S. Investors
Belgium
The
offering is exclusively conducted under applicable private
placement exemptions and therefore it has not been and will not be
notified to, and this document or any other offering material
relating to the shares has not been and will not be approved by,
the Belgian Banking, Finance and Insurance Commission (“Commission
bancaire, financière et des assurances/Commissie voor het Bank,
Financie en Assurantiewezen”). Any representation to the contrary
is unlawful.
The
Company has undertaken not to offer sell, resell, transfer or
deliver directly or indirectly, any units, or to take any steps
relating/ancillary thereto, and not to distribute or publish this
document or any other material relating to the units or to the
offering in a manner which would be construed as: (a) a public
offering under the Belgian Royal Decree of 7 July 1999 on the
public character of financial transactions; or (b) an offering of
securities to the public under Directive 2003/71/EC which triggers
an obligation to publish a prospectus in Belgium. Any action
contrary to these restrictions will cause the recipient and the
Company to be in violation of the Belgian securities
laws.
France
Neither
this prospectus supplement nor any other offering material relating
to the shares has been submitted to the clearance procedures of the
Autorité des marchés financiers in France. The shares have not been
offered or sold and will not be offered or sold, directly or
indirectly, to the public in France. Neither this prospectus
supplement nor any other offering material relating to the shares
has been or will be: (a) released, issued, distributed or caused to
be released, issued or distributed to the public in France; or (b)
used in connection with any offer for subscription or sale of the
shares to the public in France. Such offers, sales and
distributions will be made in France only: (i) to qualified
investors (investisseurs qualifiés) and/or to a restricted circle
of investors (cercle restreint d’investisseurs), in each case
investing for their own account, all as defined in and in
accordance with Articles L.411-2, D.411-1, D.411-2, D.734-1,
D.744-1, D.754-1 and D.764-1 of the French Code monétaire et
financier; (ii) to investment services providers authorised to
engage in portfolio management on behalf of third parties; or (iii)
in a transaction that, in accordance with article
L.411-2-II-1°-or-2°-or 3° of the French Code monétaire et financier
and article 211-2 of the General Regulations (Règlement Général) of
the Autorité des marchés financiers, does not constitute a public
offer (appel public à l’épargne). Such shares may be resold only in
compliance with Articles L.411-1, L.411-2, L.412-1 and L.621-8
through L.621-8-3 of the French Code monétaire et
financier.
United
Kingdom/Germany/Norway/The Netherlands
In
relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a “Relevant Member
State”) an offer to the public of any shares which are the subject
of the offering contemplated by this prospectus supplement may not
be made in that Relevant Member State other than the offers
contemplated in this prospectus supplement in name(s) of Member
State(s) where prospectus will be approved or passported for the
purposes of a non-exempt offer once this prospectus supplement has
been approved by the competent authority in such Member State and
published and passported in accordance with the Prospectus
Directive as implemented in name(s) of relevant Member State(s)
except that an offer to the public in that Relevant Member State of
any shares may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in
that Relevant Member State:
(a) to
legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorised or regulated, whose
corporate purpose is solely to invest in securities;
(b) to
any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000; and (3) an annual net
turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts;
(c) by
the representative to fewer than 100 natural or legal persons
(other than qualified investors as defined in the Prospectus
Directive); or
(d) in
any other circumstances falling within Article 3(2) of the
Prospectus Directive, provided that no such offer of shares shall
result in a requirement for the publication by the Company or any
underwriter of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For
the purposes of this provision, the expression an “offer to the
public” in relation to any shares in any Relevant Member State
means the communication in any form and by any means of sufficient
information on the terms of the offer and any shares to be offered
so as to enable an investor to decide to purchase any shares, as
the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
Each
Underwriter has represented, warranted and agreed that:
(a) it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the
FSMA)) received by it in connection with the issue or sale of any
shares in circumstances in which section 21(1) of the FSMA does not
apply to the Company; and
(b) it
has complied with and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the
shares in, from or otherwise involving the United
Kingdom.
Israel
In
the State of Israel, the shares offered hereby may not be offered
to any person or entity other than the following:
(a) a
fund for joint investments in trust (i.e., mutual fund), as
such term is defined in the Law for Joint Investments in Trust,
5754-1994, or a management company of such a fund;
(b) a
provident fund as defined in Section 47(a)(2) of the Income Tax
Ordinance of the State of Israel, or a management company of such a
fund;
(c) an
insurer, as defined in the Law for Oversight of Insurance
Transactions, 5741-1981;
(d) a
banking entity or satellite entity, as such terms are defined in
the Banking Law (Licensing), 5741-1981, other than a joint services
company, acting for their own account or for the account of
investors of the type listed in Section 15A(b) of the Securities
Law 1968;
(e) a
company that is licensed as a portfolio manager, as such term is
defined in Section 8(b) of the Law for the Regulation of Investment
Advisors and Portfolio Managers, 5755-1995, acting on its own
account or for the account of investors of the type listed in
Section 15A(b) of the Securities Law 1968;
(f) a
company that is licensed as an investment advisor, as such term is
defined in Section 7(c) of the Law for the Regulation of Investment
Advisors and Portfolio Managers, 5755-1995, acting on its own
account;
(g) a
company that is a member of the Tel Aviv Stock Exchange, acting on
its own account or for the account of investors of the type listed
in Section 15A(b) of the Securities Law 1968;
(h) an
underwriter fulfilling the conditions of Section 56(c) of the
Securities Law, 5728-1968;
(i) a
venture capital fund (defined as an entity primarily involved in
investments in companies which, at the time of investment, (i) are
primarily engaged in research and development or manufacture of new
technological products or processes and (ii) involve above-average
risk);
(j) an
entity primarily engaged in capital markets activities in which all
of the equity owners meet one or more of the above criteria;
and
(k) an
entity, other than an entity formed for the purpose of purchasing
shares in this offering, in which the shareholders equity
(including pursuant to foreign accounting rules, international
accounting regulations and U.S. generally accepted accounting
rules, as defined in the Securities Law Regulations (Preparation of
Annual Financial Statements), 1993) is in excess of NIS 50
million.
Any
offeree of the shares offered hereby in the State of Israel shall
be required to submit written confirmation that it falls within the
scope of one of the above criteria. This prospectus supplement will
not be distributed or directed to investors in the State of Israel
who do not fall within one of the above criteria.
Italy
The
offering of the shares offered hereby in Italy has not been
registered with the Commissione Nazionale per la Società e la Borsa
(“CONSOB”) pursuant to Italian securities legislation and,
accordingly, the shares offered hereby cannot be offered, sold or
delivered in the Republic of Italy (“Italy”) nor may any copy of
this prospectus supplement or any other document relating to the
shares offered hereby be distributed in Italy other than to
professional investors (operatori qualificati) as defined in
Article 31, second paragraph, of CONSOB Regulation No. 11522 of 1
July, 1998 as subsequently amended. Any offer, sale or delivery of
the shares offered hereby or distribution of copies of this
prospectus supplement or any other document relating to the shares
offered hereby in Italy must be made:
(a) by
an investment firm, bank or intermediary permitted to conduct such
activities in Italy in accordance with Legislative Decree No. 58 of
24 February 1998 and Legislative Decree No. 385 of 1 September 1993
(the “Banking Act”);
(b) in
compliance with Article 129 of the Banking Act and the implementing
guidelines of the Bank of Italy; and
(c) in
compliance with any other applicable laws and regulations and other
possible requirements or limitations which may be imposed by
Italian authorities.
Sweden
This
prospectus supplement has not been nor will it be registered with
or approved by Finansinspektionen (the Swedish Financial
Supervisory Authority). Accordingly, this prospectus supplement may
not be made available, nor may the shares offered hereunder be
marketed and offered for sale in Sweden, other than under
circumstances which are deemed not to require a prospectus under
the Financial Instruments Trading Act (1991: 980).
Switzerland
The
shares offered pursuant to this prospectus supplement will not be
offered, directly or indirectly, to the public in Switzerland and
this prospectus supplement does not constitute a public offering
prospectus as that term is understood pursuant to art. 652a or art.
1156 of the Swiss Federal Code of Obligations. The company has not
applied for a listing of the shares being offered pursuant to this
prospectus supplement on the SWX Swiss Exchange or on any other
regulated securities market, and consequently, the information
presented in this prospectus supplement does not necessarily comply
with the information standards set out in the relevant listing
rules. The shares being offered pursuant to this prospectus
supplement have not been registered with the Swiss Federal Banking
Commission as foreign investment funds, and the investor protection
afforded to acquirers of investment fund certificates does not
extend to acquirers of shares.
Investors
are advised to contact their legal, financial or tax advisers to
obtain an independent assessment of the financial and tax
consequences of an investment in shares.
Canada
Notice
to Canadian Residents
This
document constitutes an “exempt offering document” as defined in
and for the purposes of applicable Canadian securities laws. No
prospectus has been filed with any securities commission or similar
regulatory authority in Canada in connection with the offer and
sale of the securities described herein (the “Securities”). No
securities commission or similar regulatory authority in Canada has
reviewed or in any way passed upon this document or on the merits
of the Securities and any representation to the contrary is an
offence.
Canadian
investors are advised that this document has been prepared in
reliance on section 3A.3 of National Instrument 33-105
Underwriting Conflicts (“NI 33-105”). Pursuant to section
3A.3 of NI 33-105, this document is exempt from the requirement to
provide investors with certain conflicts of interest disclosure
pertaining to “connected issuer” and/or “related issuer”
relationships as would otherwise be required pursuant to subsection
2.1(1) of NI 33-105.
Resale
Restrictions
The
offer and sale of the Securities in Canada is being made on a
private placement basis only and is exempt from the requirement to
prepare and file a prospectus under applicable Canadian securities
laws. Any resale of Securities acquired by a Canadian investor in
this offering must be made in accordance with applicable Canadian
securities laws, which may vary depending on the relevant
jurisdiction, and which may require resales to be made in
accordance with Canadian prospectus requirements, a statutory
exemption from the prospectus requirements, in a transaction exempt
from the prospectus requirements or otherwise under a discretionary
exemption from the prospectus requirements granted by the
applicable local Canadian securities regulatory authority. These
resale restrictions may under certain circumstances apply to
resales of the Securities outside of Canada.
Representations
of Purchasers
Each
Canadian investor who purchases the Securities will be deemed to
have represented to the issuer and to each dealer from whom a
purchase confirmation is received, as applicable, that the investor
(i) is purchasing as principal, or is deemed to be purchasing as
principal in accordance with applicable Canadian securities laws,
for investment only and not with a view to resale or
redistribution; (ii) is an “accredited investor” as such term is
defined in section 1.1 of National Instrument 45-106 Prospectus
Exemptions (“NI 45-106”) or, in Ontario, as such term is
defined in section 73.3(1) of the Securities Act (Ontario);
and (iii) is a “permitted client” as such term is defined in
section 1.1 of National Instrument 31-103 Registration
Requirements, Exemptions and Ongoing Registrant
Obligations.
Taxation
and Eligibility for Investment
Any
discussion of taxation and related matters contained in this
document does not purport to be a comprehensive description of all
of the tax considerations that may be relevant to a Canadian
investor when deciding to purchase the Securities and, in
particular, does not address any Canadian tax considerations. No
representation or warranty is hereby made as to the tax
consequences to a resident, or deemed resident, of Canada of an
investment in the Securities or with respect to the eligibility of
the Securities for investment by such investor under relevant
Canadian federal and provincial legislation and
regulations.
Rights
of Action for Damages or Rescission
Securities
legislation in certain of the Canadian jurisdictions provides
certain purchasers of securities pursuant to an offering
memorandum, including where the distribution involves an “eligible
foreign security” as such term is defined in Ontario Securities
Commission Rule 45-501 Ontario Prospectus and Registration
Exemptions and in Multilateral Instrument 45-107 Listing
Representation and Statutory Rights of Action Disclosure
Exemptions, as applicable, with a remedy for damages or
rescission, or both, in addition to any other rights they may have
at law, where the offering memorandum, or other offering document
that constitutes an offering memorandum, and any amendment thereto,
contains a “misrepresentation” as defined under applicable Canadian
securities laws. These remedies, or notice with respect to these
remedies, must be exercised or delivered, as the case may be, by
the purchaser within the time limits prescribed under, and are
subject to limitations and defenses under, applicable Canadian
securities legislation. In addition, these remedies are in addition
to and without derogation from any other right or remedy available
at law to the investor.
Language
of Documents
Upon
receipt of this document, each Canadian investor hereby confirms
that it has expressly requested that all documents evidencing or
relating in any way to the sale of the Securities described herein
(including for greater certainty any purchase confirmation or any
notice) be drawn up in the English language only. Par la
réception de ce document, chaque investisseur canadien confirme par
les présentes qu’il a expressément exigé que tous les documents
faisant foi ou se rapportant de quelque manière que ce soit à la
vente des valeurs mobilières décrites aux présentes (incluant, pour
plus de certitude, toute confirmation d’achat ou tout avis) soient
rédigés en anglais seulement.
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, the amendment
thereto filed on Form 10-K/A on May 2, 2022, and the further
amendment thereto filed on Form 10-K/A on September 20,
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, August 17, 2022, September 12,
2022 and September 21, 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
until we file a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold. Information in such future
filings updates and supplements the information provided in this
prospectus supplement. Any statements in any such future filings
will automatically be deemed to modify and supersede any
information in any document we previously filed with the SEC that
is incorporated or deemed to be incorporated herein by reference to
the extent that statements in the later filed document modify or
replace such earlier statements.
Any
statement contained in this prospectus supplement, 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
supplement.
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 supplement 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.
PROSPECTUS
ADAMIS PHARMACEUTICALS CORPORATION
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
This prospectus relates to common stock, preferred stock, debt
securities, warrants for debt or equity securities and units
consisting of the foregoing that we may sell from time to time in
one or more transactions. In addition, certain selling security
holders to be identified in supplements to this prospectus may
offer and sell these securities from time to time. We will provide
the specific terms and conditions of these transactions and the
securities we or a selling security holder may sell in supplements
to this prospectus prepared in connection with each transaction.
The applicable prospectus supplement will contain information,
where applicable, as to other listings, if any, on the Nasdaq
Capital Market, or the NASDAQ, or any securities exchange of the
securities covered by the prospectus supplement. Any such
prospectus supplement may also add, update or change information in
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. You should carefully read this prospectus, any
applicable prospectus supplement and any related free writing
prospectuses, as well as the documents incorporated by reference or
deemed to be incorporated by reference into this prospectus,
carefully before you invest. This prospectus may not be used to
offer or sell securities unless accompanied by a prospectus
supplement.
Our common stock is traded on the NASDAQ under the symbol
“ADMP.”
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 and the applicable prospectus supplement.
The securities may be sold directly by us to investors or by any
selling security holder from time to time, through agents
designated from time to time or to or through underwriters or
dealers. We will provide specific information about any selling
security holders in one or more supplements to this prospectus. For
additional information on the methods of sale, you should refer to
the section entitled “Plan of Distribution” in this prospectus. If
any underwriters are involved in the sale of these securities with
respect to which this prospectus is being delivered, the names of
such underwriters and any applicable commissions or discounts and
over-allotment options will be set forth in a prospectus
supplement. The price to the public of such securities and the net
proceeds that we expect to receive from such sale will also be set
forth in a prospectus supplement. No securities may be sold without
delivery of this prospectus and the applicable prospectus
supplement describing the method and terms of the offering of such
securities.
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 September 19, 2022.
TABLE OF CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus is part of a shelf registration statement on Form
S-3 that we filed with the Securities and Exchange Commission, or
the SEC, under the Securities Act of 1933, as amended, or the
Securities Act, using a “shelf” registration process. Under this
shelf registration process, we may, from time to time, offer and
sell any combination of the securities described in this prospectus
in one or more offerings for an aggregate offering amount of up to
$300.0 million. In addition, selling security holders to be named
in a prospectus supplement may sell certain of our securities from
time to time.
This prospectus only provides you with a general description of the
securities we may sell in these transactions. Each time we or any
selling security holder offers to sell any securities under this
prospectus, we or the selling security holder will provide a
prospectus supplement that will contain specific information about
the terms of that offering. The prospectus supplement also may add,
update or change information contained in this prospectus. We may
also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these
offerings. This prospectus does not contain all of the information
included in the Registration Statement we filed with the SEC. For
further information about us or the securities offered hereby, you
should carefully read this prospectus, any applicable prospectus
supplement, any related free writing prospectuses, the information
and documents incorporated herein by reference and the additional
information under the heading “Where You Can Find More Information”
before making an investment decision.
You should rely only on the information contained or incorporated
by reference in this prospectus, any applicable prospectus
supplement and any related free writing prospectuses that we may
authorize to be provided to you. We have not authorized any other
person to provide you with different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. This prospectus and any accompanying supplement to
this prospectus are not an offer to sell these securities and are
not soliciting an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus, any applicable
prospectus supplement or any related free writing prospectuses, as
well as information we have previously filed with the SEC and
incorporated by reference, is accurate only as of the date on the
cover of those documents. 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.
This prospectus may not be used to consummate sales of any of these
securities unless it is accompanied by a prospectus supplement. To
the extent there are inconsistencies between any prospectus
supplement, this prospectus and/or any documents incorporated by
reference, the document with the most recent date will control.
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
securities in this offering. You should carefully read this entire
prospectus and any applicable prospectus supplement, including each
of the documents incorporated herein or therein 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 0.3 mg, 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 0.15 mg, 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.
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 securities.
Securities We May Offer
We may offer shares of our common stock and preferred stock, debt
securities, warrants for debt or equity securities and units
consisting of the foregoing, from time to time under this
prospectus, together with any applicable prospectus supplement and
related free writing prospectus, at prices and on terms to be
determined by market conditions at the time of offering. This
prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of
securities, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms of
the securities, including, to the extent applicable:
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designation or
classification; |
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aggregate principal amount or
aggregate offering price; |
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maturity, if
applicable; |
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original issue discount, if
any; |
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rates and times of payment of
interest or dividends, if any; |
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redemption, conversion, exchange
or sinking fund terms, if any; |
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conversion or exchange prices or
rates, if any, and, if applicable, any provisions for changes to or
adjustments in the conversion or exchange prices or rates and in
the securities or other property receivable upon conversion or
exchange; |
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ranking; |
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restrictive covenants, if
any; |
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voting or other rights, if any;
and |
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important U.S. federal income tax
considerations. |
A prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not
registered and described in this prospectus at the time of the
effectiveness of the Registration Statement of which this
prospectus is a part.
The securities may be offered directly by us or by any selling
security holder from time to time, through agents designated by us
or to or through underwriters, brokers or dealers. We will provide
specific information about any selling security holders in one or
more supplements to this prospectus. We, and our underwriters or
agents, reserve the right to accept or reject all or part of any
proposed purchase of securities. If we do offer securities through
underwriters or agents, we will include in the applicable
prospectus supplement:
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the names of those underwriters
or agents; |
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applicable fees, discounts and
commissions to be paid to them; |
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details regarding options to
purchase additional securities, if any; and |
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the net proceeds to
us. |
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 or the applicable prospectus supplement, 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 or in
the applicable prospectus supplement or any free writing
prospectus. 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. To the extent a particular offering
implicates additional known material risks, we will include a
discussion of those risks in the applicable prospectus
supplement.
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:
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our ability to continue as a
going concern and ability to raise required additional
capital; |
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the commercial success of our
SYMJEPI™ (epinephrine) Injection 0.3 mg 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; |
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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; |
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the success of our product
research and development programs; |
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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; |
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the timing of, or delay in the
timing of, commercial introduction of any of our
products; |
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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; |
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regulatory and personnel
issues; |
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our ability to generate
significant revenues; |
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competition and market
developments; |
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the failure of any of our product
candidates, if approved, to achieve commercial success; |
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our ability to protect our
intellectual property from infringement by third
parties; |
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the extent and enforceability of
intellectual property rights protections afforded by patents and
patent applications that we own or have licensed; |
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regulatory and health reform
legislation and regulations; |
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the introduction of technological
innovations or new commercial products by our competitors, and
competitive developments in the relevant markets; |
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the outcome of any legal
proceedings in which we are involved or in which we may in the
future become involved; |
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the effects of public health
crises, pandemics and epidemics, such as the COVID-19 pandemic;
and |
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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 and any
prospectus supplement. 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
Unless we indicate otherwise in the applicable prospectus
supplement, we anticipate that the net proceeds from the sale of
the securities offered from time to time hereby will be used for
general corporate purposes, including, without limitation, research
and development and clinical development costs to support the
advancement of our in-development drug candidates, activities in
connection with the launch of our in-development drug candidates,
manufacturing, building inventory supply, hiring additional
personnel, making acquisitions of assets, businesses, technologies,
products, companies or securities, capital expenditures, the
payment, repayment, refinancing, redemption or repurchase of
existing or future indebtedness, and for working capital. When a
particular series of securities is offered, the related prospectus
supplement will set forth our intended use of the net proceeds we
receive from the sale of the securities. Pending the application of
the net proceeds, we may invest the proceeds in short-term,
interest-bearing instruments or other investment-grade securities.
We will not receive any of the proceeds from sales of securities by
selling security holders.
SELLING SECURITY HOLDERS
If the registration statement of which this prospectus forms a part
is used by selling security holders for the resale of any
securities registered thereunder pursuant to a registration rights
agreement to be entered into by us with such selling security
holders or otherwise, information about such selling security
holders, their beneficial ownership of our securities and their
relationship with us will be set forth in a prospectus supplement,
any free writing prospectus or in filings we make with the SEC
under the Exchange Act that are incorporated by reference into the
registration statement.
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; or |
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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; and |
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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;
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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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through agents; |
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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 |
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negotiated prices. |
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):
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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; |
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our Quarterly Report on Form 10-Q
for the quarter ended March 31, 2022, as filed with the SEC on May
13, 2021; |
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our Quarterly Report on Form 10-Q
for the quarter ended June 30, 2022, as filed with the SEC on
August 10, 2022; |
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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 |
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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.
13,794,000 Shares of Common Stock
Issuable Upon Exercise of Warrants
PROSPECTUS SUPPLEMENT
September 23, 2022