| PROSPECTUS
SUPPLEMENT |
Filed
Pursuant to Rule 424(b)(5) |
| |
|
| (To Prospectus dated
September 19, 2022) |
Registration
No. 333-267365 |
| |
|
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. |
| |
|
|
| Nasdaq Capital Market symbol |
|
Our common stock is listed on The Nasdaq Capital
Market under the symbol “ADMP.” |
| |
|
|
| 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 |
| |
|
|
| |
● |
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:
| ● | 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; |
| ● | the
success of our product research and development programs; |
| ● | our
future development plans concerning our product candidates, and ongoing and planned preclinical
or clinical trials for our product candidates, including the timing of initiation of
these trials, the timing of progress of those trials, anticipated completion dates of
trials, and the results of any such trials, including without limitation the outcome
of our Phase 2/3 clinical trial relating to our Tempol product candidate; |
| ● | the
timing of, or delay in the timing of, commercial introduction of any of our products; |
| ● | our
ability to enter into collaborations and agreements for the development and commercialization
of our products and product candidates, and the potential benefits of any future commercialization
or collaboration agreements with third parties; |
| ● | regulatory
and personnel issues; |
| ● | our
ability to generate significant revenues; |
| ● | competition
and market developments; |
| ● | the
failure of any of our product candidates, if approved, to achieve commercial success; |
| ● | our
ability to protect our intellectual property from infringement by third parties; |
| ● | the
extent and enforceability of intellectual property rights protections afforded by patents
and patent applications that we own or have licensed; |
| ● | regulatory
and health reform legislation and regulations; |
| ● | the
introduction of technological innovations or new commercial products by our competitors,
and competitive developments in the relevant markets; |
| ● | the
outcome of any legal proceedings in which we are involved or in which we may in the future
become involved; |
| ● | the
effects of public health crises, pandemics and epidemics, such as the COVID-19 pandemic;
and |
| ● | other
risks and uncertainties detailed from time to time in our SEC filings. |
We
urge you to consider these factors carefully in evaluating the forward-looking statements contained in this prospectus. All subsequent
written or oral forward-looking statements attributable to our company or persons acting on our behalf are expressly qualified
in their entirety by these cautionary statements. The forward-looking statements included in this prospectus 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; and |
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. (Section 2.2) |
We may issue debt securities that provide
for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other
special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any
of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any
premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit
or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other
information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units
in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by
either one or more global securities registered in the name of The Depository Trust Company (DTC or the Depositary), or a nominee
of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”),
or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security
as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under
the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities. You may
transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the
indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
(Section 2.7)
You may effect the transfer of certificated
debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering
the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to
the new holder or the issuance by us or the trustee of a new certificate to the new holder. Global Debt Securities and Book-Entry
System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary,
and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities. (Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable
prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection
in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results
in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with
or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”)
unless:
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we are the surviving corporation or the successor person (if other than Icosavax) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing. |
Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
“Event of Default” means with
respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period); |
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default in the payment of principal of any debt security of that series at its maturity; |
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default in the performance or breach of any other covenant or warranty by us in the indenture or any debt security (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or Icosavax and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture; |
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of Icosavax; or |
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. (Section 6.1) |
No Event of Default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an
Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default
or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries
outstanding from time to time.
We will provide the trustee written notice
of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which
notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose
to take in respect thereof. (Section 6.1)
If an Event of Default with respect to debt
securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25%
in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid
interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy,
insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding
debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee
or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of
any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders
of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all
Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of
that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating
to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion
of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee
may refuse to perform any duty or exercise any of its rights or powers under the indenture, unless the trustee receives indemnity
satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such
right or power. (Section 7.1(e)) Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities
of that series. (Section 6.12)
No holder of any debt security of any series
will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of
a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and |
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7) |
Notwithstanding any other provision in the
indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of,
premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit
for the enforcement of payment. (Section 6.8)
The indenture requires us, within 120 days
after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a
Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible
officer of the trustee, the trustee shall mail to each holder of the securities of that series notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or
Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of
any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that
series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
(Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or
supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency; |
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
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to provide for uncertificated securities in addition to or in place of certificated securities; |
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to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
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to surrender any of our rights or powers under the indenture; |
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to add covenants or events of default for the benefit of the holders of debt securities of any series; |
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to comply with the applicable procedures of the applicable depositary; |
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to make any change that does not adversely affect the rights of any holder of debt securities; |
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; |
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. (Section 9.1) |
We may also modify and amend the indenture
with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected
by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected
debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce the principal amount of discount securities payable upon acceleration of maturity; |
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waive a default or event of default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. (Section 9.3) |
Except for certain specified provisions,
the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders
of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority
in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of
such series waive any past default under the indenture with respect to that series and its consequences, except a default in the
payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of
a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture provides
that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the
irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be
issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or
U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants
or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments
in respect of, the debt securities of that series on the stated maturity of those payments in accordance with the terms of the
indenture and those debt securities.
This discharge may occur only if, among
other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published
by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the
holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants.
The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance
with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and |
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”). |
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and |
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4) |
No Personal Liability of Directors, Officers, Employees or
Securityholders
None of our past, present or future directors,
officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or
the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt
security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue
of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities
laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the debt securities, will be governed by the laws of the
State of New York.
The indenture will provide that we, the
trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture,
the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal
suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted
in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in
each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the
debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The
indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any
applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process
for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and
the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally
waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section
10.10)
DESCRIPTION
OF WARRANTS WE MAY OFFER
As of September 8, 2022, we had 14,952,824
warrants to purchase shares of our common stock outstanding. We typically issue warrants to purchase shares of our common stock
to investors as part of a financing transaction, or in connection with services rendered by placement agents and outside consultants.
We may issue warrants to purchase debt securities,
preferred stock, common stock or any combination of the foregoing. We may issue warrants independently or together with any other
securities we offer under a prospectus supplement. The warrants may be attached to or separate from the securities. We may issue
a series of warrants under a separate warrant agreement to be entered into between a warrant agent and us. The warrant agent will
act solely as our agent in connection with the warrants and will not have any obligations or relationship of agency or trust for
or with holders or beneficial owners of warrants. The following outlines some of the general terms and provisions of the warrants
that we may issue from time to time. When we issue warrants, we will provide the specific terms of the warrants and the applicable
warrant agreement in a prospectus supplement and any related free writing prospectuses and such terms may differ from those described
below. To the extent the information contained in the prospectus supplement differs from this summary description, you should rely
on the information in the prospectus supplement. The following description, and any description of the warrants included in a prospectus
supplement, may not be complete and is subject to and qualified in its entirety by reference to the terms and provisions of the
applicable warrant agreement.
Debt Warrants
We will describe in the applicable prospectus
supplement and any related free writing prospectuses the terms of the debt warrants being offered, the warrant agreement relating
to the debt warrants and the debt warrant certificates representing the debt warrants, including, as applicable:
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the title of the debt warrants; |
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the aggregate number of the debt warrants; |
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the price or prices at which the debt warrants will be issued; |
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the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants, and the procedures and conditions relating to the exercise of the debt warrants; |
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the designation and terms of any related debt securities with which the debt warrants are issued, and the number of the debt warrants issued with each security; |
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the date, if any, on and after which the debt warrants and the related debt securities will be separately transferable; |
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the principal amount of debt securities purchasable upon exercise of each debt warrant, and the price at which the principal amount of the debt securities may be purchased upon exercise; |
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the date on which the right to exercise the debt warrants will commence, and the date on which the right will expire; |
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the maximum or minimum number of the debt warrants that may be exercised at any time; |
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information with respect to book-entry procedures, if any; |
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changes to or adjustments in the exercise price of the debt warrants; |
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a discussion of the material U.S. federal income tax considerations applicable to the exercise of the debt warrants; and |
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any other terms of the debt warrants and terms, procedures and limitations relating to the exercise of the debt warrants. |
As may be permitted under the warrant agreement,
holders may exchange debt warrant certificates for new debt warrant certificates of different denominations, and may exercise debt
warrants at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement
and any related free writing prospectuses. Prior to the exercise of their debt warrants, holders of debt warrants will not have
any of the rights of holders of the securities purchasable upon the exercise and will not be entitled to payments of principal,
premium or interest on the securities purchasable upon the exercise of debt warrants.
Equity Warrants
We will describe in the applicable prospectus
supplement and any related free writing prospectuses the terms of the preferred stock warrants or common stock warrants being offered,
the warrant agreement relating to the preferred stock warrants or common stock warrants and the warrant certificates representing
the preferred stock warrants or common stock warrants, including, as applicable:
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the title of the warrants; |
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the securities for which the warrants are exercisable; |
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the price or prices at which the warrants will be issued; |
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if applicable, the number of warrants issued with each share of preferred stock or share of common stock; |
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if applicable, the date on and after which the warrants and the related preferred stock or common stock will be separately transferable; |
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
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the maximum or minimum number of warrants which may be exercised at any time; |
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information with respect to book-entry procedures, if any; |
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a discussion of the material U.S. federal income tax considerations applicable to exercise of the warrants; and |
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Unless otherwise provided in the applicable
warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, holders of equity warrants
will not be entitled, by virtue of being such holders, to vote, consent, receive dividends, receive notice as stockholders with
respect to any meeting of stockholders for the election of our directors or any other matter, or to exercise any rights whatsoever
as stockholders.
Except as provided in the applicable warrant
agreement and corresponding prospectus supplement or any related free writing prospectuses, the exercise price payable and the
number of shares of common stock or preferred stock purchasable upon the exercise of each warrant will be subject to adjustment
in certain events, including the issuance of a stock dividend to holders of common stock or preferred stock or a stock split, reverse
stock split, combination, subdivision or reclassification of common stock or preferred stock. In lieu of adjusting the number of
shares of common stock or preferred stock purchasable upon exercise of each warrant, we may elect to adjust the number of warrants.
Unless otherwise provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing
prospectuses, no adjustments in the number of shares purchasable upon exercise of the warrants will be required until all cumulative
adjustments require an adjustment of at least 1% thereof. No fractional shares will be issued upon exercise of warrants, but we
will pay the cash value of any fractional shares otherwise issuable. Notwithstanding the foregoing, except as otherwise provided
in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, in case of
any consolidation, merger, or sale or conveyance of our property as an entirety or substantially as an entirety, the holder of
each outstanding warrant will have the right to the kind and amount of shares of stock and other securities and property, including
cash, receivable by a holder of the number of shares of common stock or preferred stock into which each warrant was exercisable
immediately prior to the particular triggering event.
Exercise of Warrants
Each warrant will entitle the holder of
the warrant to purchase for cash at the exercise price provided in the applicable warrant agreement and corresponding prospectus
supplement or any related free writing prospectuses the principal amount of debt securities or shares of preferred stock or shares
of common stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date provided
in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses. After the
close of business on the expiration date, unexercised warrants are void.
Holders may exercise warrants as described
in the applicable warrant agreement and corresponding prospectus supplement or any free writing prospectuses relating to the warrants
being offered. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the applicable warrant agreement and corresponding prospectus supplement
or any related free writing prospectuses, we will, as soon as practicable, forward the debt securities, shares of preferred stock
or shares of common stock purchasable upon the exercise of the warrant. If less than all of the warrants represented by the warrant
certificate are exercised, we will issue a new warrant certificate for the remaining warrants.
DESCRIPTION
OF UNITS WE MAY OFFER
The following description, together with
the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will
apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units
in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ
from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this
prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the Registration
Statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with
the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements,
before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject
to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable
to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of
units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the
terms of the units.
General
We may issue units comprised of one or more
shares of common stock, shares of preferred stock, debt securities and warrants in any combination. Each unit will be issued so
that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
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any provisions of the governing unit agreement that differ from those described below; and |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in this section,
as well as those described under “Description of Capital Stock We May Offer,” “Description of Debt Securities
We May Offer” and “Description of Warrants We May Offer” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent, if any, will act solely
as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any
holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have
no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
We, the unit agents and any of their agents
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purpose and as the person entitled to exercise the rights attaching to the units so registered, despite any notice to the contrary.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable
prospectus supplement or free writing prospectus, the securities initially will be issued in book-entry form and represented by
one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with,
or on behalf of DTC and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual
certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except
as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor
depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law; |
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a “banking organization” within the meaning of the New York Banking Law; |
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a member of the Federal Reserve System; |
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
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a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC holds securities that its participants
deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating
the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers
and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation (DTCC). DTCC is the holding company for DTC, National Securities
Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the
users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect
participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system
must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership
interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct
and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their
purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as
well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities.
Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting
on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global
securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all
global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee,
Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC
and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities.
DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct
participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are
responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry
form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities,
where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities
may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications
by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants
to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC.
If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount
of the interest of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such
other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy
to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to
those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing
attached to the omnibus proxy.
So long as securities are in book-entry
form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by
wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances
described below and unless if otherwise provided in the description of the applicable securities herein or in the applicable prospectus
supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by
wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at
least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to
the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend
payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding
detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants
to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of
participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of
redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC, is our responsibility; disbursement of payments to direct participants is the responsibility of DTC; and
disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described
below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical
delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise
any rights under the securities and the indenture.
The laws of some jurisdictions may require
that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to
transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services
as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances,
in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular
series of securities generally will not receive certificates representing their ownership interests in those securities. However,
if:
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DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be; |
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we determine, in our sole discretion, not to have such securities represented by one or more global securities; or |
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an Event of Default has occurred and is continuing with respect to such series of securities, |
we will prepare and deliver certificates for such securities
in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable
under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form
registered in the names that the depositary directs. It is expected that these directions will be based upon directions received
by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus
supplement, you may hold interests in a global security through Clearstream Banking S.A., which we refer to as “Clearstream,”
or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,” either directly
if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream
or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’
securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries,
which in turn will hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s
books.
Clearstream and Euroclear are securities
clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate
the clearance and settlement of securities transactions between those participants through electronic book-entry changes in their
accounts, thereby eliminating the need for physical movement of certificates.
Payments, deliveries, transfers, exchanges,
notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply
with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and
other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive
through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in
global securities held through those systems only on days when those systems are open for business. Those systems may not be open
for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market transfers between participants
in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance
with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however,
such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty
in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system.
Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions
to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the global
securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants
in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due to time zone differences, the securities
accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in
DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the
securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement
date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant
in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be
available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following
DTC’s settlement date.
Other
The information in this section of this
prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we
believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a
matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations
and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities
and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their
respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear
will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and
such procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance
or nonperformance by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures
governing their respective operations.
PLAN
OF DISTRIBUTION
We, or the applicable selling security holders,
may sell the offered securities from time to time.
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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