Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-262311
PROSPECTUS
SUPPLEMENT
(To
Prospectus dated February 1, 2022)
$50,000,000
Beyond
Air, Inc.
Common
Stock
We
have entered into a sales agreement with Truist Securities, Inc.,
or Truist, and Oppenheimer & Co. Inc., or Oppenheimer, each of
whom we refer to as an agent, and together as the agents, relating
to shares of our common stock offered by this prospectus
supplement. In accordance with the terms of the sales agreement, we
may offer and sell shares of our common stock having an aggregate
offering price of up to $50,000,000 from time to time through the
agents.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “XAIR.” On February 2, the last reported sales price for our
common stock was $7.24 per share.
Sales
of our common stock, if any, under this prospectus supplement may
be made in sales deemed to be “at the market offerings” as defined
in Rule 415 promulgated under the Securities Act of 1933, as
amended, or the Securities Act, including sales made directly on or
through the Nasdaq Capital Market, the existing trading market for
our common stock, or any other existing trading market for our
common stock. The agents are not required to sell any specific
number or dollar amount of securities, but will act as sales
agents, using commercially reasonable efforts consistent with their
normal trading and sales practices, on mutually agreed terms among
the agents and us. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
The
compensation to the agents for sales of common stock sold pursuant
to the sales agreement will be an amount up to 3.0% of the gross
proceeds of any shares of common stock sold under the sales
agreement. See “Plan of Distribution” beginning on page S-13 for
additional information regarding the compensation to be paid to the
agents. In connection with the sale of the common stock on our
behalf, each of the agents will be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of
the agents will be deemed to be underwriting commissions or
discounts. We have also agreed to provide indemnification and
contribution to the agents with respect to certain liabilities,
including liabilities under the Securities Act or the Exchange Act
of 1934, as amended, or the Exchange Act.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the heading
“Risk Factors” on page S-9 of this prospectus supplement and under
similar headings in the other documents that are incorporated by
reference into this prospectus supplement.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS ARE TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
|
Truist
Securities |
|
Oppenheimer
& Co. |
February
4, 2022
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT THIS PROSPECTUS
SUPPLEMENT
This
document is comprised of two parts. The first part is this
prospectus supplement, which describes the specific terms of this
offering of our shares of common stock. The second part is the
accompanying prospectus, including the documents incorporated by
reference into the accompanying prospectus, which provides more
general information, some of which may not apply to this offering.
The information included or incorporated by reference in this
prospectus supplement also adds to, updates and changes information
contained or incorporated by reference in the accompanying
prospectus. If information included or incorporated by reference in
this prospectus supplement is inconsistent with the accompanying
prospectus or the information incorporated by reference therein,
then this prospectus supplement or the information incorporated by
reference in this prospectus supplement will apply and will
supersede the information in the accompanying prospectus and the
documents incorporated by reference therein.
This
prospectus supplement is part of a registration statement on Form
S-3 (File No. 333-262311) that we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration
process. Under the shelf registration process, we may from time to
time offer and sell any combination of the securities described in
the accompanying prospectus up to a total dollar amount
of $200,000,000, of which this offering is a part. Under this
prospectus supplement, we may offer shares of our common stock
having a total aggregate offering price of up to $50,000,000 from
time to time at prices and on terms to be determined by market
conditions at the time of offering.
We
have not authorized anyone to provide you with information other
than that contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus and any free writing
prospectus that we have authorized for use in connection with this
offering. We do not take any responsibility for, and can provide no
assurance as to the reliability of, any other information that
others may give you. Our business, financial condition, results of
operations and prospects may have changed since those dates. You
should not assume that the information contained or incorporated in
this prospectus supplement and the accompanying prospectus is
accurate as of any date other than their respective dates,
regardless of the time of delivery. You should read this prospectus
supplement, the accompanying prospectus, the documents incorporated
by reference in this prospectus supplement and the accompanying
prospectus, and any free writing prospectus that we have authorized
for use in connection with this offering when making your
investment decision. We and the agents are not making an offer to
sell our common stock offered hereto in any jurisdiction where the
offer or sale is not permitted.
This
prospectus supplement, the accompanying prospectus and the
information incorporated herein and therein by reference includes
trademarks, service marks and trade names owned by us or other
companies. All trademarks, service marks and trade names included
or incorporated by reference into this prospectus supplement or the
accompanying prospectus are the property of their respective
owners.
Unless
the context indicates otherwise, in this prospectus supplement and
the accompanying prospectus the terms, the “Company,” “we,” “our”
or “us” refer to Beyond Air, Inc. and its wholly-owned
subsidiaries.
CAUTIONARY STATEMENTS CONCERNING
FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying prospectus and the
documents incorporated by reference herein may contain forward
looking statements within the meaning of Section 27A of the
Securities Act of 1933 (the “Securities Act”), and Section 21E of
the Securities Exchange Act of 1934 (the “Exchange Act”) that
involve risks and uncertainties. All statements other than
statements of historical fact contained in this prospectus
supplement, the accompanying prospectus and the documents
incorporated by reference herein, including statements regarding
future events, our future financial performance, business strategy,
and plans and objectives of management for future operations, are
forward-looking statements. We have attempted to identify
forward-looking statements by terminology including “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “should,” or
“will” or the negative of these terms or other comparable
terminology. Although we do not make forward looking statements
unless we believe we have a reasonable basis for doing so, we
cannot guarantee their accuracy. These statements are only
predictions and involve known and unknown risks, uncertainties and
other factors, including the risks outlined under “Risk Factors” or
elsewhere in this prospectus supplement, the accompanying
prospectus and the documents incorporated by reference herein,
which may cause our or our industry’s actual results, levels of
activity, performance or achievements expressed or implied by these
forward-looking statements. Moreover, we operate in a highly
regulated, very competitive, and rapidly changing environment. New
risks emerge from time to time and it is not possible for us to
predict all risk factors, nor can we address the impact of all
factors on our business or the extent to which any factor, or
combination of factors, may cause our actual results to differ
materially from those contained in any forward-looking
statements.
We
have based these forward-looking statements largely on our current
expectations and projections about future events and financial
trends that we believe may affect our financial condition, results
of operations, business strategy, short term and long-term business
operations, and financial needs. These forward-looking statements
are subject to certain risks and uncertainties that could cause our
actual results to differ materially from those reflected in the
forward looking statements. Factors that could cause or contribute
to such differences include, but are not limited to, those
discussed in this this prospectus supplement, the accompanying
prospectus and the documents incorporated by reference herein, and
in particular, the risks discussed below and under the heading
“Risk Factors” and those discussed in other documents we file with
the SEC. We undertake no obligation to revise or publicly release
the results of any revision to these forward-looking statements,
except as required by law. In light of these risks, uncertainties
and assumptions, the forward-looking events and circumstances
discussed in this prospectus supplement, the accompanying
prospectus and the documents incorporated by reference herein may
not occur and actual results could differ materially and adversely
from those anticipated or implied in the forward-looking
statement.
You
should not place undue reliance on any forward-looking statement,
each of which applies only as of the date of this prospectus
supplement. Except as required by law, we undertake no obligation
to update or revise publicly any of the forward-looking statements
after the date of this prospectus supplement to conform our
statements to actual results or changed expectations.
PROSPECTUS SUPPLEMENT
SUMMARY
This
summary highlights selected information about our company, this
offering and information appearing elsewhere in this prospectus
supplement, in the accompanying prospectus, and in the documents we
incorporate by reference. This summary is not complete and does not
contain all the information that you should consider before
investing in our securities. You should carefully read this entire
prospectus supplement and the accompanying prospectus, particularly
the information included under the heading “Risk Factors” contained
in this prospectus supplement beginning on page S-9, and the
risk factors, financial statements and notes incorporated by
reference herein, before making an investment decision. This
prospectus supplement may add to, update or change information in
the accompanying prospectus.
Company
Overview
We are a clinical-stage medical device and biopharmaceutical
company developing a nitric oxide (“NO”) generator and delivery
system (the “LungFit® system”) capable of generating NO
from ambient air. The LungFit® platform can generate NO
up to 400 parts per million for delivery to a patient’s lungs
directly or via a ventilator. LungFit® can deliver NO
either continuously or for a fixed amount of time at various flow
rates and has the ability to either titrate dose on demand or
maintain a constant dose. We believe that LungFit® can
be used to treat patients on ventilators that require NO, as well
as patients with chronic or acute severe lung infections via
delivery through a breathing mask or similar apparatus.
Furthermore, we believe that there is a high unmet medical need for
patients suffering from certain severe lung infections that the
LungFit® platform can potentially address.
Our
current areas of focus with LungFit® are persistent
pulmonary hypertension of the newborn (PPHN), community-acquired
viral pneumonia (CAVP) including COVID-19 (previously termed acute
viral pneumonia, or AVP), bronchiolitis (BRO) and nontuberculous
mycobacteria (NTM) lung infection. The Company’s current product
candidates will be subject to premarket reviews and approvals by
the U.S. Food and Drug Administration, (the “FDA”), CE marking
conformity assessment by a notified body in the European Union (the
“E.U.”), as well as similar regulatory agencies’ reviews or
approvals in other countries or regions. If approved, our system
will be marketed as a medical
device in the U.S.
An
additional focus of the Company is solid tumors, through our
majority-owned affiliate Beyond Cancer, Ltd. For the solid tumor
indication the LungFit® platform is not utilized due to
need for ultra-high concentrations of gaseous nitric oxide (“UNO”).
A proprietary delivery system has been developed that can safely
deliver UNO in excess of 10,000 ppm directly to a solid tumor. This
program is in preclinical development and will require approval
from the FDA or similar regulatory agencies in other countries to
enter human studies. We anticipate beginning the enrollment of
patients into the first human trial in the first quarter of
calendar year 2022.
We
believe LungFit® will be the first approved system with
patented technology that generates NO using room air, enabling the
delivery of unlimited, on-demand NO regardless of dose or flow. To
generate the NO, a pump within the LungFit® flows room
air through a small chamber where power, equivalent to a 60-watt
lightbulb, ionizes the oxygen and nitrogen molecules. The molecules
recombine as NO. We believe that the on-demand delivery, either to
a ventilator circuit or directly to a patient’s lungs, is safe due
to the Company’s system design and the Company’s proprietary
nitrogen dioxide (“NO2”) filter. The NO2
filter removes toxic NO2 for 12 hours when used for PPHN
and shorter periods for treating other conditions that require NO
concentrations of 150 ppm or more.
With
respect to PPHN, our novel LungFit® PH is designed to
deliver a dosage of NO to the lungs that is consistent with current
guidelines for delivery of 20 ppm NO with a range of 0.5 ppm – 80
ppm (low-concentration NO) for ventilated patients. We believe the
ability of LungFit® PH to generate NO from ambient air
provides us with many competitive advantages over the current
standard of NO delivery systems in the U.S., the E.U., Japan and
other markets. For example, LungFit® PH does not require
the use of a high-pressure cylinder, does not require cumbersome
purging procedures and places less burden on hospital staff in
carrying out safety procedures.
Our
novel LungFit® platform can also deliver a high
concentration (>150 ppm) of NO directly to the lungs,
which we believe has the potential to eliminate microbial
infections including bacteria, fungi and viruses, among others. We
believe that current FDA-approved NO vasodilation treatments would
have limited success in treating microbial infections given the low
concentrations of NO being delivered (<100 ppm). Given that NO
is produced naturally by the body as an innate immunity mechanism,
at a concentration of 200 ppm, supplemental high dose NO should aid
in the body’s fight against infection. Based on our preclinical and
clinical studies, we believe that 150 ppm is the minimum
therapeutic dose to achieve the desired pulmonary antimicrobial
effect of NO. To date, neither the FDA nor equivalent regulatory
agencies in other countries or regions have approved any NO
formulation and/or delivery system for >80 ppm NO.
LungFit® PH for the treatment of Persistent Pulmonary
Hypertension of the Newborn
In
November 2020 we submitted a PMA application to the FDA for the use
of LungFit® PH in PPHN. There is a standard 180-day
review process that starts upon the FDA’s acknowledgement of the
submission, though PMA reviews oftentimes take much longer,
sometimes over a year or more. Moreover, the ongoing COVID-19
pandemic and an increased volume of submissions have led to longer
review times by the FDA. We anticipate an FDA decision on the PMA
in the first half of the calendar year 2022.
We
also expect to receive the CE Mark under the Medical Device
Regulation (“MDR”) in the E.U. in the first half of calendar year
2022. According to the most recent year-end report from
Mallinckrodt Pharmaceuticals, sales of NO were $574.1 million in
2020 (up from $571.4 million in 2019) for the United States,
Canada, Japan, Mexico and Australia, with >90% in the United
States. However, due to increased competition following the launch
of competing nitric oxide delivery systems in the United States,
Mallinckrodt Pharmaceutical’s sales of NO faced a downwards
trajectory, reporting $134 million in the first quarter of 2021,
$106 million in the second quarter of 2021 and $98 million in the
third quarter of 2021. Outside of the U.S. there are multiple
market participants which translates to considerably lower sales
than in the U.S. We believe the U.S. sales potential of
LungFit® PH in PPHN to be greater than $300 million and
worldwide sales potential to be greater than $600 million. If
regulatory approval is obtained, we anticipate a product launch in
the U.S. in the first half of calendar year 2022 and will continue
to launch in the EU and globally in 2022 and beyond.
LungFit® PRO for the treatment of viral lung infections
in hospitalized patients
Community-Acquired
Viral Pneumonia (including COVID-19)
Viral
pneumonia in adults is most commonly caused by rhinovirus,
respiratory syncytial virus (“RSV”) and influenza virus. However,
newly emerging viruses (including SARS-CoV-1, SARS-CoV-2, avian
influenza A, and H1N1 viruses) have been identified as pathogens
contributing to the overall burden of adult viral pneumonia.
COVID-19 is an infectious disease caused by SARS-CoV-2, that has
resulted in a global pandemic. Excluding the pandemic, there are
approximately 350,000 annual viral pneumonia hospitalizations in
the US, and 16 million annual viral pneumonia hospitalizations
globally. For the broader annual viral pneumonia, we believe U.S.
sales potential to be greater than $1.5 billion and worldwide
market potential to be greater than $3 billion.
We
initiated a pilot study in late 2020 using our novel
LungFit® PRO system at 150 ppm to treat patients with
CAVP, including COVID-19. The ongoing trial is a multi-center,
open-label, randomized clinical trial in Israel, including patients
infected with SARS-CoV-2. Patients are randomized in a 1:1 ratio to
receive either inhalations of 150 ppm NO given intermittently for
40 minutes four times per day for up to seven days in addition to
standard supportive treatment (“NO+SST”) or standard supportive
treatment alone (“SST”). Endpoints related to safety (primary
endpoint), oxygen saturation and ICU admission, among others, will
be assessed.
We
reported interim data from this ongoing trial at the American
Thoracic Society or ATS International Conference 2021, which was
held virtually from May 14, 2021 through May 19, 2021. At the time
of the data cut off, the intent-to-treat (“ITT”) analysis
population included 19 COVID-19 patients (9 NO + SST vs 10 SST).
The data readout showed that 150 ppm NO treatment administered via
LungFit® PRO was safe and well tolerated and
demonstrated encouraging efficacy signals. From a safety
perspective, there were no treatment-related, or possibly related,
adverse events or severe adverse events. NO2 levels were
below 4 ppm at all timepoints (trial safety threshold is 5 ppm) and
methemoglobin (“MetHb”) levels were below 4% at all times (trial
safety threshold is 10%). With respect to the requirement of oxygen
support beyond hospital stay, 22.2% of subjects in the NO + SST
group compared with 40% of control subjects had this requirement.
There was an observable trend of shortening the duration of
hospital stay and duration on oxygen support for treated patients.
The pilot study in adult viral pneumonia, including COVID-19,
remains active with trial sites open for enrollment. Additional
detailed study results may be submitted for presentation at an
upcoming scientific meeting in April 2022.
Bronchiolitis (BRO)
Bronchiolitis
is the leading cause of hospital admission in children less than 1
year of age. The incidence is estimated to be 150 million new cases
a year worldwide, with 2-3% (over 3 million) of them severe enough
to require hospitalization. Worldwide, 95%3 of all cases
occur in developing countries. In the U.S., there are more than
120,000 annual bronchiolitis hospitalizations and approximately 3.2
million annual child hospitalizations globally. Currently, there is
no approved treatment for bronchiolitis. The treatment for acute
viral lung infections that cause bronchiolitis in infants is
largely supportive care and is based primarily on prolonged
hospitalization during which the infant receives a constant flow of
oxygen to treat hypoxemia, a reduced concentration of oxygen in the
blood. In addition, systemic steroids and inhalation with
bronchodilators are sometimes utilized until recovery, but we
believe that these treatments do not successfully reduce hospital
length of stay. We believe the U.S. market potential for
bronchiolitis to be greater than $500 million and worldwide market
potential to be greater than $1.2 billion.
Our
BRO program is currently on hold due to the COVID-19 pandemic. The
pivotal study for bronchiolitis was originally set to be performed
in the winter of 2020/21 but was delayed due to the pandemic. We
have completed three successful pilot studies for bronchiolitis. A
further analysis of the three previously reported pilot studies was
presented at the ATS International Conference 2021, which was held
virtually from May 14, 2021 through May 19, 2021. Analysis across
the studies (n=198 infants, mean age 3.9 months) showed that 150
ppm – 160 ppm NO administered intermittently was generally safe and
well tolerated with adverse event rates similar among treatment
groups with no reported treatment-related serious adverse events.
The short course of treatments with intermittent high concentration
inhaled NO was effective in shortening hospital length of stay and
accelerating time to fit for discharge – a composite endpoint of
clinical signs and symptoms to indicate readiness to be evaluated
for hospital discharge. This treatment was also effective in
accelerating time to stable oxygen saturation – measured as SpO2 ≥
92% in room air. Additionally, NO at a dose of 85 ppm NO showed no
difference compared to control for all efficacy endpoints, while
150 ppm NO showed statistical significance when compared to
control.
We
believe that the entirety of data at 150 ppm - 160 ppm NO in both
adult and infant patient populations supports further development
of LungFit® PRO in a pivotal study for patients
hospitalized with viral pneumonia.
LungFit® GO for the treatment of Nontuberculous
mycobacteria (NTM)
NTM
lung infection is a rare and serious pulmonary disease associated
with increased morbidity and mortality. Patients with NTM lung
disease may experience a multitude of symptoms such as fever,
weight loss, cough, lack of appetite, night sweats, blood in the
sputum and fatigue. Patients with NTM lung disease, specifically
Mycobacterium abscessus (M.abscessus) representing
20% - 25% of all NTM and other forms of NTM that are refractory to
antibiotic therapy, frequently require lengthy and repeated
hospital stays to manage their condition. There are no treatments
specifically indicated for the treatment of M. abscessus
lung disease in North America, Europe or Japan.
There
are approximately 50,000 to 90,000 people with NTM infections in
the U.S. In Asia, the number of patients suffering from NTM
surpasses what is seen in the U.S. There is one inhaled antibiotic
approved for the treatment of refractory Mycobacterium avium
complex (“MAC”). Current guideline-based approaches to treat NTM
lung disease involve multi-drug regimens of antibiotics that may
cause severe, long lasting side effects, and treatment can be as
long as 18 months or more. Median survival for NTM MAC patients is
approximately 13 years while median survival for patients with
other variations of NTM is typically 4.6 years. The prevalence of
human disease attributable to NTM has increased over the past two
decades. In a study conducted between 2007 and 2016, researchers
found that the prevalence of NTM in the U.S. is increasing at
approximately 7.5% per year. M. abscessus treatment costs are
estimated to be more than double that of MAC. In total, a 2015
publication by co-authors from several U.S. government departments
stated that annual cases in 2014 cost the U.S. healthcare system
approximately $1.7 billion. For this indication, we believe U.S.
sales potential to be greater than $1 billion and worldwide sales
potential to be greater than $2.5 billion.
In
December 2020 we began a 12-week, multi-center, open-label clinical
trial in Australia and we plan to enroll approximately 20 adult
patients with chronic refractory NTM lung disease. We received a
grant of up to $2.17 million from the CFF to fund this study and
advance the clinical development of inhaled NO to treat NTM
pulmonary disease. The trial is enrolling both cystic fibrosis
(“CF”) and non-CF patients infected with MAC or M.
abscessus. The study consists of a run-in period followed by
two treatment phases. The run-in period provides a baseline for the
efficacy endpoints. The first treatment phase takes place over a
two-week period and begins in the hospital setting where patients
will be titrated from 150 ppm NO up to 250 ppm NO over several
days. During this phase patients receive NO for 40 minutes, four
times per day while MetHb levels are monitored. Patients are also
trained to use LungFit® GO and subsequently discharged
to complete the remaining portion of the two-week treatment period
at their home at the highest tolerated NO concentration. For the
second treatment phase, a 10-week maintenance phase, the
administration is twice daily. The study is evaluating safety,
quality of life, physical function, and bacterial load among other
parameters.
We
reported positive interim results in October 2021. At the time of
data cutoff on September 6, 2021, eight subjects were successfully
titrated up to 250 ppm NO in the hospital setting, and none
required dose reductions during the subsequent at-home portion of
the study. The mean age of subjects was 56.6 years (range: 22 – 73
years) with the majority female (87.5%), a distribution consistent
with real-world NTM disease, and occurring at a higher rate in
older adult women than men. 250 ppm NO was well-tolerated in all
subjects with no study discontinuations or treatment-related
serious adverse events observed. Methemoglobin and NO2
concentrations remained within acceptable ranges in all subjects
during NO treatment, and below the safety thresholds of 10% and 5
ppm, respectively. The study continues to enroll patients, and we
anticipate reporting the complete efficacy and safety results in
the first half of calendar year 2022. If the trial is successful,
we would anticipate commencing a pivotal study in the first half of
calendar year 2024.
The
Company’s program in chronic obstructive pulmonary disease (“COPD”)
is in the preclinical stage and we anticipate beginning a pilot
study in calendar year 2022 or 2023.
Ultra-High Concentration NO in solid tumors through majority-owned
affiliate Beyond Cancer, Ltd.
In
November 2021, we secured commitments of $23.9 million in a
concurrent private placement of common shares, not to exceed $30
million, providing the investors with up to 20% equity ownership in
Beyond Cancer, a new and independently managed, private company.
The funding is expected to be used to accelerate ongoing
preclinical work including the completion of IND-enabling studies,
completion of a Phase 1 study, expansion of preclinical programs
for combination studies, hiring of additional Beyond Cancer team
members, and optimization of the delivery system, as well as for
general corporate purposes. The concurrent private placement is
expected to close in the fourth fiscal quarter.
Beyond
Cancer will benefit from Beyond Air’s NO expertise, IP portfolio,
preclinical oncology team, and regulatory progress, and will pay
Beyond Air a single digit royalty on all future revenues. Beyond
Cancer will be led by a seasoned leadership team with experience in
emerging healthcare companies and clinical oncology.
Ultra-high
concentration NO has shown anticancer properties in preclinical
trials by eliciting an immune response from the host. We have
released this preclinical data at several medical/scientific
conferences showing the promise of delivering NO at concentrations
of 20,000 ppm – 200,000 ppm directly to tumors. Results showed that
local tumor ablation with NO conveyed anti-tumor immunity to the
host. In our most recent release of data, 8 of 11 mice treated with
a single administration of 25,000 ppm NO over five minutes were
resistant to a subsequent tumor challenge and 11 of 11 mice treated
with 50,000 ppm NO were resistant to a subsequent tumor challenge.
Preclinical work will continue with a goal of beginning the
enrollment of patients in a first-in-human study in the first half
of calendar year 2022.
For
more information about us, please refer to other documents that we
have filed with the SEC and that are incorporated by reference into
this prospectus supplement, as listed under the heading
“Incorporation of Documents by Reference.”
Litigation
Update
On
March 16, 2018, Empery Asset Master, Ltd. (“Empery Master”), Empery
Tax Efficient, LP (“Empery I) and Empery Tax Efficient II, LP
(“Empery II), (collectively, “Empery”) filed a complaint in the
Supreme Court of the State of New York (the “Trial Court”),
relating to the notice of adjustment of both the exercise price of
and the number of warrant shares issuable under warrants issued to
Empery in January 2017. Empery alleges that, as a result of certain
circumstances in connection with the February 2018 financing
transaction, the 166,672 warrants issued to Empery in January 2017
provide for adjustments to both the exercise price of the warrants
and the number of warrant shares issuable upon such exercise. On
August 20, 2020, the Trial Court denied the Company’s summary
judgment motion as to the first and third claim for relief, but
dismissed the second claim for declaratory judgment as moot (the
“August 20 Decision”). The Appellate Division First Department
denied the Company’s appeal of the August 20 Decision on September
30, 2021. Following a three day bench trial, the Trial Court issued
a decision on October 14, 2021, finding in favor of Empery on the
two remaining claims, granting reformation of the Warrant
Agreement, and awarding Empery damages in the aggregate amount of
approximately $5.8 million (the “October 14 Decision”). On November
12, 2021, we filed a notice of appeal. Pending appeal, we are
required to use approximately $7.4 million of cash as collateral to
secure a supersedeas bond for the full amount of damages and
interest in the case that we are unsuccessful in our appeal. On
September 30, 2021, we recorded an estimate for a contingent loss
of $2.4 million related to the Empery litigation. We, in
consultation with outside legal counsel, believe that we have
several meritorious defenses against the claims, and the decision
of the Trial Court.
On
December 28, 2021, Hudson Bay Master Fund (“Hudson”) filed a
complaint in the Trial Court relating to the notice of adjustment
of both the exercise price of and the number of warrant shares
issuable under warrants issued to Hudson in January 2017. Hudson’s
complaint alleges breach of contract and that it is entitled to
damages estimated at approximately $2.6 million. We, in
consultation with outside legal counsel, believe that we have
several meritorious defenses against Hudson’s claims. We believe
that Hudson’s claims have no merit and we shall vigorously defend
such lawsuit.
Corporate
Information
We
were incorporated on April 28, 2015 under Delaware law. On June 25,
2019, our name was changed to Beyond Air, Inc. from AIT
Therapeutics, Inc.
Our
principal executive offices are located at 900 Stewart Avenue,
Suite 301, Garden City, New York 11530, and our telephone number is
(516) 665-8200. Our website address is www.beyondair.net. The
information contained on, or that can be accessed through, our
website is not part of this prospectus. We have included our
website address in this prospectus supplement solely as an inactive
textual reference.
THE OFFERING
|
Common
Stock Offered By Us |
|
Shares
of our common stock having an aggregate offering price of up to
$50,000,000. |
|
Manner
of Offering |
|
“At
the market offering” that may be made from time to time through our
agents, Truist and Oppenheimer. See “Plan of Distribution” on page
S-13 of this prospectus supplement. |
|
Use
of Proceeds |
|
We
currently intend to use the net proceeds from this offering
primarily to further advance our pipeline of product candidates and
for working capital and general corporate purposes. See “Use of
Proceeds” on page S-11 of this prospectus supplement. |
|
Risk
Factors |
|
Investing
in our common stock involves significant risks. See “Risk Factors”
on page S-9 of this prospectus supplement, and under similar
headings in other documents incorporated by reference into this
prospectus supplement and the accompanying prospectus. |
|
Nasdaq
Capital Market Symbol |
|
“XAIR”. |
RISK FACTORS
Investing
in our securities involves a high degree of risk. Before deciding
whether to invest in our securities, you should carefully consider
the risk factors we describe in this prospectus supplement, any
related free writing prospectus for a specific offering of
securities, as well as those incorporated by reference into this
prospectus supplement or accompanying prospectus (including,
without limitation, in our Annual Report on Form 10-K for the year
ended March 31, 2021). You should also carefully consider other
information contained and incorporated by reference in this
prospectus supplement and the accompanying prospectus, including
our financial statements and the related notes thereto incorporated
by reference herein. The risks and uncertainties described in this
prospectus supplement and our other filings with the SEC
incorporated by reference herein are not the only ones we face.
Additional risks and uncertainties not presently known to us or
that we currently consider immaterial may also adversely affect us.
Our business, financial condition or results of operations could be
materially harmed by these risks. In such case, the value of our
securities could decline and you may lose all or part of your
investment.
Risks
Relating to Our Business Operations
Recent trading in our common stock has been volatile and may
continue to be volatile in the future.
Our
common stock has recently experienced extreme volatility. In
November 2021, our common stock closed as high as $15.61 per share
and in January 2022 as low as $6.06 per share. Our common stock may
continue to be volatile and could materially fall for a number of
reasons including:
|
|
● |
Announcements
by competitors that they have successfully produced an effective
vaccine or other treatment option for COVID-19; |
| |
● |
Public
announcement that the rapid spread of COVID-19 has
receded; |
| |
● |
Our
ability to obtain FDA approval of the PMA for our
LungFit® system; |
| |
● |
The
continued large declines in major stock market indexes which causes
investors to sell our common stock; |
| |
● |
The
termination of any other factors which may have created volatility
and spike in volume; or |
| |
● |
Other
possible reasons for volatility which we have disclosed in our
reports filed with the SEC and incorporated by reference into this
prospectus supplement. |
We
cannot assure you that our stock price and volume will remain at
current levels in which case investors may sustain large
losses.
We face business disruption and related risks resulting from the
COVID-19 pandemic, which could have a material adverse effect on
our business plan.
The
development of our product candidates could be further disrupted
and materially adversely affected by a resurgence of the COVID-19
pandemic. We experienced significant delays in the supply chain for
LungFit® due to the redundancy in parts and suppliers
with ventilator manufacturing which has since been remedied. We
continuously assess the impact that COVID-19 may have on our
business plans and our ability to conduct the preclinical studies
and clinical trials as well as on our reliance on third-party
manufacturing and our supply chain. However, there can be no
assurance that we will be able to avoid part or all of any impact
from COVID-19 or its consequences if a resurgence
occurs.
The ultimate resolution of two lawsuits against us, while not
material to our operations, may be material to our financial
statements.
On
September 30, 2021, we recorded an estimate for a contingent loss
of $2.4 million related to the lawsuit filed against us in 2018 by
Empery relating to the notice of adjustment of the exercise price
of and the number of warrant shares issuable under warrants issued
to Empery in January 2017. In December 2021 Hudson filed a lawsuit
against us related to the notice of adjustment of the exercise
price of and the number of warrant shares issuable under warrants
issued to Hudson in January 2017. The ultimate resolution of these
two lawsuits against us, and potential lawsuits that may be filed
by other holders of warrants issued in January 2017 relating to the
adjustment of such warrants’ exercise price and number of
underlying shares, if unfavorable, could result in losses in excess
of our current estimates which may be material to our financial
statements.
Risks
Related to This Offering
Our management will have broad discretion over the use of any net
proceeds from this offering, you may not agree with how we use the
proceeds, and the proceeds may not be invested
successfully.
Our
management will have broad discretion as to the use of any net
proceeds from this offering and could use them for purposes other
than those contemplated at the time of this offering. Accordingly,
you will be relying on the judgment of our management with regard
to the use of any proceeds from the sale of shares of common stock
in this offering, and you will not have the opportunity, as part of
your investment decision, to assess whether the proceeds are being
used appropriately. It is possible that the proceeds will be
invested in a way that does not yield a favorable, or any, return
for you.
You may experience dilution.
The
offering price per share in this offering may exceed the net
tangible book value per share of our common stock outstanding prior
to this offering. Assuming that an aggregate of 6,906,077 shares of
our common stock are sold at a price of $7.24 per share, the last
reported sale price of our common stock on the Nasdaq Capital
Market on February 2, 2022, for aggregate gross proceeds of
$50,000,000, and after deducting commissions and estimated offering
expenses payable by us, you would experience immediate dilution of
$4.47 per share, representing the difference between our as
adjusted net tangible book value per share as of September 30,
2021, after giving effect to this offering, and the assumed
offering price. The exercise of outstanding stock options and
warrants would result in further dilution of your investment. See
the section entitled “Dilution” below for a more detailed
illustration of the dilution you would incur if you participate in
this offering. Because the sales of the shares offered hereby will
be made directly into the market, the prices at which we sell these
shares will vary and these variations may be significant.
Purchasers of the shares we sell, as well as our existing
stockholders, will experience significant dilution if we sell
shares at prices significantly below the price at which they
invested.
Investors in this offering may experience future dilution as a
result of future equity offerings.
In
order to raise additional capital, we may in the future offer
additional shares of our common stock or other securities
convertible into or exchangeable for our common stock. Investors
purchasing our shares or other securities in the future could have
rights superior to existing common stockholders, and the price per
share at which we sell additional shares of our common stock or
other securities convertible into or exchangeable for our common
stock in future transactions may be higher or lower than the price
per share in this offering.
Sales of a significant number of shares of our common stock in the
public markets, or the perception that such sales could occur,
could depress the market price of our common
stock.
Sales
of a substantial number of shares of our common stock in the public
markets could depress the market price of our common stock and
impair our ability to raise capital through the sale of additional
equity securities. We cannot predict the effect that future sales
of our common stock would have on the market price of our common
stock.
We do not intend to pay any cash dividends on our common stock in
the foreseeable future and, therefore, any return on your
investment in our common stock must come from increases in the fair
market value and trading price of our common
stock.
We do
not intend to pay any cash dividends on our common stock in the
foreseeable future and, therefore, any return on your investment in
our common stock must come from increases in the fair market value
and trading price of our common stock.
USE OF PROCEEDS
We
may issue and sell shares of our common stock having aggregate
sales proceeds of up to $50,000,000 from time to time in this
offering. Because there is no minimum offering amount required as a
condition to close this offering, the actual total public offering
amount, commissions and proceeds to us, if any, are not
determinable at this time. There can be no assurance that we will
sell any shares under or fully utilize the sales agreement with the
agents as a source of financing.
We
intend to use net proceeds from this offering for general corporate
purposes, which may include working capital, capital expenditures,
research and development expenditures, clinical trial expenditures,
commercial expenditures, acquisitions of new technologies, products
or businesses, and investments. The amounts and timing of these
expenditures will depend on numerous factors, including the
development of our current business initiatives. Pending use of the
net proceeds from this offering as described above, we may invest
the net proceeds in short-term interest-bearing investment grade
instruments.
DILUTION
If
you purchase shares in this offering, you will experience dilution
to the extent of the difference between the public offering price
of the shares and the net tangible book value per share of our
common stock immediately after this offering.
Our
net tangible book value as of September 30, 2021 was approximately
$40,565,000 or $1.61 per share of common stock. Net tangible book
value per share is determined by dividing our total tangible
assets, less total liabilities, by the number of our shares of
common stock outstanding as of September 30, 2021. Dilution in net
tangible book value per share represents the difference between the
amount per share paid by purchasers of shares in this offering and
the net tangible book value per share of our common stock
immediately after this offering.
After
giving effect to the assumed sale of 7,429,421 shares of our common
stock in this offering at an assumed offering price of $7.24 per
share, the last reported sale price of our common stock on the
Nasdaq Capital Market on February 2, 2022 and after deducting
commissions and estimated offering expenses payable by us, our as
adjusted net tangible book value as of September 30, 2021 would
have been approximately $89,065,000, or $2.77 per share. This
represents an immediate increase in net tangible book value of
$1.16 per share to existing stockholders and immediate dilution of
$4.47 per share to investors purchasing our common stock in this
offering at the assumed offering price. The following table
illustrates this dilution on a per share basis:
|
Assumed
public offering price per share |
|
$ |
7.24 |
|
| Net
tangible book value per share as of September 30, 2021 |
|
$ |
1.61 |
|
| Increase
per share attributable to this offering |
|
$ |
1.16 |
|
| As
adjusted net tangible book value per share as of September 30, 2021
after this offering |
|
$ |
2.77 |
|
| Dilution
per share to new investors participating in this
offering |
|
$ |
4.47 |
|
The
number of shares of our common stock that will be issued and
outstanding immediately after this offering as shown above is based
on 25,209,749 shares of common stock issued and outstanding as of
September 30, 2021 and excludes, as of that date:
|
|
● |
4,271,160
shares of our common stock issuable upon exercise of outstanding
stock options; |
|
|
● |
3,109,627
shares of our common stock issuable upon exercise of outstanding
warrants; |
|
|
● |
787,200
shares of our common stock underlying restricted stock units
pursuant to our amended and restated 2013 Equity Incentive Plan
(“2013 Plan”); and |
|
|
● |
520,511
shares of our common stock reserved for future issuance under our
2013 Plan and 2021 Employee Stock Purchase Plan (“2021
Plan”). |
The
table above assumes for illustrative purposes that an aggregate of
7,429,421 shares of our common stock are sold during the term of
the sales agreement with the agents at a price of $7.24 per share,
the last reported sale price of our common stock on the Nasdaq
Capital Market on February 2, 2022 for aggregate gross proceeds of
$50,000,000. The shares sold in this offering, if any, will be sold
from time to time at various prices. An increase of $1.00 per share
in the price at which the shares are sold from the assumed offering
price of $7.24 per share, assuming all of our common stock in the
aggregate amount of $50,000,000 during the term of the sales
agreement with the agents is sold at that price, would decrease our
adjusted net tangible book value per share after the offering to
$1.24 share and would increase the dilution in net tangible book
value per share to new investors in this offering to $5.39 per
share, after deducting commissions and estimated offering expenses
payable by us. A decrease of $1.00 per share in the price at which
the shares are sold from the assumed offering price of $7.24 per
share, assuming all of our common stock in the aggregate amount of
$50,000,000 is sold at that price, would decrease our adjusted net
tangible book value per share after the offering to $1.07per share
and would decrease the dilution in net tangible book value per
share to new investors in this offering to $3.56 per share, after
deducting commissions and estimated offering expenses payable by
us. This information is supplied for illustrative purposes
only.
We
may choose to raise additional capital due to market conditions or
strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent that
additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities may
result in further dilution to our shareholders. To the extent that
outstanding options or warrants outstanding as of September 30,
2021 have been or may be exercised or other shares issued,
investors purchasing our common stock in this offering may
experience further dilution.
PLAN OF
DISTRIBUTION
We
have entered into a sales agreement with Truist and Oppenheimer,
under which we may issue and sell from time to time up to
$50,000,000 of our common stock through Truist and Oppenheimer as
our sales agents. Sales of our common stock, if any, will be made
at market prices by any method that is deemed to be an “at the
market offering” as defined in Rule 415 under the Securities Act,
including sales made directly on the Nasdaq Capital Market or any
other trading market for our common stock. If authorized by us in
writing, the agents may purchase shares of our common stock as
principal.
The
agents will offer our common stock subject to the terms and
conditions of the sales agreement on a daily basis or as otherwise
agreed upon by us and the agents. We will designate the maximum
amount of common stock to be sold through the agents on a daily
basis or otherwise determine such maximum amount together with the
agents. Subject to the terms and conditions of the sales agreement,
the agents will use their commercially reasonable efforts to sell
on our behalf all of the shares of common stock requested to be
sold by us. We may instruct the agents not to sell common stock if
the sales cannot be effected at or above the price designated by us
in any such instruction. The agents or we may suspend the offering
of our common stock being made through the agents under the sales
agreement upon proper notice to the other parties. The agents and
we each have the right, by giving written notice as specified in
the sales agreement, to terminate the sales agreement in each
party’s sole discretion at any time.
The
aggregate compensation payable to Truist and Oppenheimer as sales
agents equals up to 3.0% of the gross sales price of the shares
sold through them pursuant to the sales agreement. We have also
agreed to reimburse the agents for up to $50,000 of the actual
outside legal expenses incurred by the agents. We estimate that the
total expenses in connection with the transactions contemplated by
the sales agreement payable by us, excluding commissions payable to
the agents under the sales agreement, will be approximately
$125,000.
The
remaining sales proceeds, after deducting any expenses payable by
us and any transaction fees imposed by any governmental,
regulatory, or self-regulatory organization in connection with the
sales, will equal our net proceeds for the sale of such common
stock.
The
agents will provide written confirmation to us following the close
of trading on the Nasdaq Capital Market on each day in which common
stock is sold through them as sales agents under the sales
agreement. Each confirmation will include the number of shares of
common stock sold through the agents as sales agent on that day,
the volume weighted average price of the shares sold, the
percentage of the daily trading volume and the net proceeds to
us.
Settlement
for sales of common stock will occur, unless the parties agree
otherwise, on the second business day that is also a trading day
following the date on which any sales were made in return for
payment of the net proceeds to us. There is no arrangement for
funds to be received in an escrow, trust or similar
arrangement.
In
connection with the sales of our common stock on our behalf, each
of the agents may be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation paid to the
agents may be deemed to be underwriting commissions or discounts.
We have agreed in the sales agreement to provide indemnification
and contribution to the agents against certain liabilities,
including liabilities under the Securities Act. As sales agents,
the agents will not engage in any transactions that stabilizes our
common stock.
Our
common stock is listed on the Nasdaq Capital Market and trades
under the symbol “XAIR”. The transfer agent of our common stock is
Action Stock Transfer Corporation.
The
agents and/or their affiliates have provided, and may in the future
provide, various investment banking and other financial services
for us for which services they have received and, may in the future
receive, customary fees.
LEGAL MATTERS
Certain
legal matters with respect to the legality of the issuance of the
securities offered by this prospectus supplement will be passed
upon for us by Sichenzia Ross Ference LLP, New York, New York.
Goodwin Procter LLP, New York, New York will pass upon certain
legal matters in connection with the offering for Truist and
Oppenheimer.
EXPERTS
The
consolidated financial statements as of March 31, 2021 and 2020 and
for each of the years in the two year period ended March 31, 2021
incorporated by reference in this prospectus supplement from our
Annual Report on Form 10-K for the year ended March 31, 2021 have
been so included in reliance on the report of Friedman LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We
file annual, quarter and periodic reports, proxy statements and
other information with the SEC. You may access such reports and
information at the SEC’s website at www.sec.gov.
This
prospectus supplement and the accompanying prospectus are part of
the registration statement on Form S-3 filed with the SEC under the
Securities Act for the common stock offered by this prospectus
supplement. This prospectus supplement does not contain all of the
information set forth in the registration statement, certain parts
of which have been omitted in accordance with the rules and
regulations of the SEC. For further information, reference is made
to the registration statement and its exhibits. Whenever we make
references in this prospectus supplement or the accompanying
prospectus to any of our contracts, agreements or other documents,
the references are not necessarily complete and you should refer to
the exhibits attached to the registration statement for the copies
of the actual contract, agreement or other document.
INCORPORATION OF DOCUMENTS BY
REFERENCE
We
are “incorporating by reference” in this prospectus certain
documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents.
The information in the documents incorporated by reference is
considered to be part of this prospectus. Statements contained in
documents that we file with the SEC and that are incorporated by
reference in this prospectus will automatically update and
supersede information contained in this prospectus, including
information in previously filed documents or reports that have been
incorporated by reference in this prospectus, to the extent the new
information differs from or is inconsistent with the old
information. We incorporate by reference the following information
or documents that we have filed with the SEC (excluding those
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 March 31, 2021, filed with the SEC on June 10, 2021, as
amended by our Annual Report on Form 10-K/A filed with the SEC on
July 23, 2021; |
| |
● |
our
Proxy Statement filed with the SEC on January 21, 2022; |
| |
● |
our
Quarterly Reports on Form 10-Q for the quarterly period ended June
30, 2021, filed with the SEC on August 10, 2021, and September
30, 2021, filed with the SEC on November 12, 2021; |
| |
● |
our
Current Reports on Form 8-K, filed with the SEC on May 13, 2021, May 26, 2021, August 25, 2021, September 27, 2021, October 20, 2021, November 5, 2021, November 15, 2021 (except Item
2.02 and the portions of Item 99.1 covered by Item 2.02) and
December 10, 2021;
and |
| |
● |
the
description of our common stock contained in our Registration
Statement on Form 8-A, filed with the SEC on
May 3, 2019, including any amendments or reports filed for the
purpose of updating such description. |
Any
information in any of the foregoing documents will automatically be
deemed to be modified or superseded to the extent that information
in this prospectus supplement or the accompanying prospectus or in
a later filed document that is incorporated or deemed to be
incorporated herein by reference modifies or replaces such
information.
We
also incorporate by reference any future filings (excluding
information furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items) made
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, until we sell all of the securities offered by this
prospectus supplement. 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.
You
may request, orally or in writing, a copy of these documents, which
will be provided to you at no cost (other than exhibits, unless
such exhibits are specifically incorporated by reference), by
contacting Adam T. Newman, c/o Beyond Air, Inc., at 900 Stewart
Avenue, Suite 301, Garden City, New York 11530. Our telephone
number is (516) 665-8200. Information about us is also available at
our website at http://www.beyondair.net. The information in our
website is not a part of this prospectus and is not incorporated by
reference.
PROSPECTUS
$200,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Units
We
may offer to the public from time to time in one or more series or
issuances:
|
|
● |
shares
of our common stock; |
| |
|
|
|
● |
shares
of our preferred stock; |
| |
|
|
|
● |
warrants
to purchase shares of our common stock, preferred stock and/or debt
securities; |
| |
|
|
|
● |
debt
securities consisting of debentures, notes or other evidences of
indebtedness; |
| |
|
|
|
● |
units
consisting of a combination of the foregoing securities;
or |
| |
|
|
|
● |
any
combination of these securities. |
The
aggregate initial offering price of all securities sold by us
pursuant to this prospectus will not exceed
$200,000,000.
This
prospectus provides a general description of the securities that we
may offer. Each time that we offer securities under this
prospectus, we will provide the specific terms of the securities
offered, including the public offering price, in a supplement to
this prospectus. Any prospectus supplement may add to, update or
change information contained in this prospectus.
The
securities may be sold by us to or through underwriters or dealers,
directly to purchasers or through agents designated from time to
time. For additional information on the methods of sale, you should
refer to the section entitled “Plan of Distribution” in this
prospectus and the comparable section of any applicable prospectus
supplement. If any underwriters are involved in the sale of the
securities with respect to which this prospectus is being
delivered, the names of such underwriters and any applicable
discounts or commissions and over-allotment options will be set
forth in the applicable prospectus supplement.
Our
common stock trades on the Nasdaq Capital Market under the ticker
symbol “XAIR.” On January 21, 2022, the last reported sale price
per share of our common stock was $6.77. We have not yet determined
whether the other securities that may be offered by this prospectus
will be listed on any exchange, interdealer quotation system or
over-the-counter market. If we decide to seek the listing of any
such securities upon issuance, the prospectus supplement relating
to those securities will disclose the exchange, quotation system or
market on which those securities will be listed.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. RISKS ASSOCIATED
WITH AN INVESTMENT IN OUR SECURITIES WILL BE DESCRIBED IN THE
APPLICABLE PROSPECTUS SUPPLEMENT AND CERTAIN OF OUR FILINGS WITH
THE SECURITIES AND EXCHANGE COMMISSION INCORPORATED BY REFERENCE
INTO THIS PROSPECTUS, AS DESCRIBED UNDER “RISK FACTORS” ON PAGE
4.
You
should read this prospectus and any applicable prospectus
supplement together with additional information described under the
heading “Where You Can Find More Information” before you make your
investment decision.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
The
date of this prospectus is February 1, 2022.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus is a part of a registration statement on Form S-3 that
we filed with the Securities and Exchange Commission, or the SEC,
using a “shelf” registration process. Under this shelf registration
process, we may offer to sell any of the securities, or any
combination of the securities, described in this prospectus, in
each case in one or more offerings, up to a total dollar amount of
$200,000,000.
This
prospectus provides you only with a general description of the
securities that we may offer. Each time securities are sold under
the shelf registration statement, we will provide a prospectus
supplement that will contain specific information about the terms
of those securities and the terms of that offering. The prospectus
supplement may also add, update or change information contained in
this prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplement, you
should rely on the information in the prospectus supplement. You
should read both this prospectus and any prospectus supplement,
including all documents incorporated by reference herein and
therein, together with the additional information described under
“Where You Can Find More Information” below.
The
information contained in this prospectus is not complete and may be
changed. You should rely only on the information provided in or
incorporated by reference in this prospectus or in any prospectus
supplement, or documents to which we otherwise refer you. We have
not authorized anyone else to provide you with different
information.
We
have not authorized any dealer, agent or other person to give any
information or to make any representation other than those
contained or incorporated by reference in this prospectus and any
accompanying prospectus supplement. You must not rely upon any
information or representation not contained or incorporated by
reference in this prospectus or an accompanying prospectus
supplement. This prospectus and the accompanying prospectus
supplement, if any, do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus
and the accompanying prospectus supplement, if any, constitute an
offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume
that the information contained in this prospectus and the
accompanying prospectus supplement, if any, is accurate on any date
subsequent to the date set forth on the front of such document or
that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by
reference, even though this prospectus and any accompanying
prospectus supplement is delivered or securities are sold on a
later date.
References
in this prospectus to the terms “the Company,” “Beyond Air,” “we,”
“our” and “us” or other similar terms mean Beyond Air, Inc. and our
wholly owned subsidiaries, unless we state otherwise or the context
indicates otherwise.
FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein
contain, and any prospectus supplement and the documents
incorporated therein, contain forward-looking statements. We intend
such forward-looking statements to be covered by the safe harbor
provisions for forward-looking statements contained in Section 27A
of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. All statements other than statements of
historical facts contained in this prospectus, any prospectus
supplement or the documents incorporated herein and therein by
reference, including statements regarding our future results of
operations and financial position, business strategy, prospective
product candidates and products, product approvals, timing of our
clinical development activities, research and development costs,
timing and likelihood of success and the plans and objectives of
management for future operations and future results of anticipated
products are forward-looking statements. These statements involve
known and unknown risks, uncertainties and other important factors
that may cause our actual results, performance or achievements to
be materially different from any future results, performance or
achievements express or implied by the forward-looking
statements.
In
some cases, you can identify forward-looking statements by terms
such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,”
“expect,” “could,” “intend,” “target,” “project,” “contemplate,”
“believe,” “estimate,” “predict,” “potential” or “continue” or the
negative of these terms or other similar conditional expressions.
The forward-looking statements in this prospectus, any prospectus
supplement or the documents incorporated herein and therein by
reference, are only predictions. We have based these
forward-looking statements largely on our current expectations and
projections about future events and financial trends that we
believe may affect our business, financial condition and results of
operations. These forward-looking statements speak only as of the
date of this prospectus and are subject to a number of important
factors that could cause actual results to differ materially from
those in the forward-looking statements, including the factors
described under Item 1A “Risk Factors” contained in our most
recently filed Annual Report on Form 10-K, as well as the
following:
|
|
● |
our
status as a development-stage company and our expectation to incur
losses in the future; |
| |
|
|
|
● |
our
future capital needs and our need to raise additional
funds; |
| |
|
|
|
● |
our
ability to obtain U.S. Food and Drug Administration (“FDA”)
approval of the Premarket Approval Application for the
LungFit® system; |
| |
|
|
|
● |
our
ability to build a pipeline of product candidates and develop and
commercialize products; |
| |
|
|
|
● |
our
ability to enroll patients in clinical trials, timely and
successfully complete those trials and receive necessary regulatory
approvals; |
| |
|
|
|
● |
our
ability to maintain our existing or future collaborations or
licenses; |
| |
|
|
|
● |
our
ability to protect and enforce our intellectual property
rights; |
| |
|
|
|
● |
federal,
state and foreign regulatory requirements, including the FDA
regulation of our product candidates; |
| |
|
|
|
● |
our
ability to obtain and retain key executives and attract and retain
qualified personnel; |
| |
|
|
|
● |
our
ability to successfully manage our growth; and |
| |
|
|
|
● |
our
ability to address business disruption and related risks resulting
from the COVID-19 pandemic, which could have a material adverse
effect on our business plan. |
Moreover,
we operate in an evolving environment. New risk factors and
uncertainties may emerge from time to time, and it is not possible
for management to predict all risk factors and
uncertainties.
We
cannot guarantee that the results and other expectations expressed,
anticipated or implied in any forward-looking statement will be
realized. The risks set forth under Item 1A of our Annual Report on
Form 10-K for the fiscal year ended March 31, 2021, as revised or
supplemented by our Quarterly Reports on Form 10-Q and other
documents we file with the SEC, describe major risks to our
business, and you should read and interpret any forward-looking
statements together with these risks. A variety of factors,
including these risks, could cause our actual results and other
expectations to differ materially from the anticipated results or
other expectations expressed, anticipated or implied in our
forward-looking statements. Should known or unknown risks
materialize, or should underlying assumptions prove inaccurate,
actual results could differ materially from past results and those
anticipated, estimated or projected in the forward-looking
statements. You should bear this in mind as you consider any
forward-looking statements.
You
should read this prospectus, any prospectus supplement and the
documents that we incorporate by reference herein and therein
completely and with the understanding that our actual future
results may be materially different from what we expect. We qualify
all of our forward-looking statements by these cautionary
statements. Except as required by applicable law, we do not plan to
publicly update or revise any forward-looking statements contained
herein, whether as a result of any new information, future events,
changed circumstances or otherwise.
MARKET, INDUSTRY AND OTHER
DATA
This
prospectus and any applicable prospectus supplement and the
documents incorporated by reference herein and therein contain
estimates, projections, market research and other information
concerning our industry, our business, markets for
LungFit® PH and our other product candidates and the
size of those markets, the prevalence of certain medical
conditions, LungFit® PH market access, prescription data
and other physician, patient and payor data. Unless otherwise
expressly stated, we obtain this information from reports, research
surveys, studies and similar data prepared by market research firms
and other third parties, industry, medical and general
publications, government data and similar sources as well as from
our own internal estimates and research and from publications,
research, surveys and studies conducted by third parties on our
behalf. Information that is based on estimates, projections, market
research or similar methodologies is inherently subject to
uncertainties and actual events or circumstances may differ
materially from events and circumstances that are reflected in this
information. As a result, you are cautioned not to give undue
weight to such information.
SUMMARY
This
summary highlights selected information from this prospectus and
does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the
entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing
in our securities discussed under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other
documents that are incorporated by reference into this prospectus.
You should also carefully read the information incorporated by
reference into this prospectus, including our financial statements,
and the exhibits to the registration statement of which this
prospectus is a part.
Company
Overview
We
are a clinical-stage medical device and biopharmaceutical company
developing a nitric oxide (“NO”) generator and delivery system (the
“LungFit® system”) capable of generating NO from ambient
air. The LungFit® platform can generate NO up to 400
parts per million for delivery to a patient’s lungs directly or via
a ventilator. LungFit® can deliver NO either
continuously or for a fixed amount of time at various flow rates
and has the ability to either titrate dose on demand or maintain a
constant dose. We believe that LungFit® can be used to
treat patients on ventilators that require NO, as well as patients
with chronic or acute severe lung infections via delivery through a
breathing mask or similar apparatus. Furthermore, we believe that
there is a high unmet medical need for patients suffering from
certain severe lung infections that the LungFit®
platform can potentially address. The Company’s current areas of
focus with LungFit® are persistent pulmonary
hypertension of the newborn (PPHN), acute viral pneumonia (AVP)
including COVID-19, bronchiolitis (BRO) and nontuberculous
mycobacteria (NTM) lung infection. The Company’s current product
candidates will be subject to premarket reviews and approvals by
the FDA, CE marking conformity assessment by a notified body in the
European Union, as well as similar regulatory agencies’ reviews or
approvals in other countries or regions. If approved, the Company’s
system will be marketed as a medical device in the U.S.
For
more information about the Company, please refer to other documents
that we have filed with the SEC and that are incorporated by
reference into this prospectus, as listed under the heading
“Incorporation by Reference.”
Corporate
Information
We
were incorporated on April 28, 2015 under Delaware law. On June 25,
2019, our name was changed to Beyond Air, Inc. from AIT
Therapeutics, Inc.
Our
principal executive offices are located at 900 Stewart Avenue,
Suite 301, Garden City, New York 11530, and our telephone number is
(516) 665-8200. Our website address is www.beyondair.net. The
information contained on, or that can be accessed through, our
website is not part of this prospectus. We have included our
website address in this prospectus solely as an inactive textual
reference.
Beyond
AirTM, the Beyond Air logo and other trademarks or
service marks of Beyond Air, Inc. appearing in this prospectus are
the property of Beyond Air, Inc. This prospectus and any applicable
prospectus supplement and the documents incorporated by reference
herein and therein may also include trademarks, tradenames and
service marks that are the property of other organizations. Solely
for convenience, trademarks and tradenames referred to in this
prospectus and any applicable prospectus supplement and the
documents incorporated by reference herein and therein appear
without the ® and ™ symbols, but those references are not intended
to indicate, in any way, that we will not assert, to the fullest
extent under applicable law, our rights, or that the applicable
owner will not assert its rights, to these trademarks and
tradenames.
RISK FACTORS
Investing
in our securities involves a high degree of risk. The prospectus
supplement applicable to each offering of our securities will
contain a discussion of the risks applicable to an investment in
our securities. Prior to making a decision about investing in our
securities, you should carefully consider the specific factors
discussed under the heading “Risk Factors” in the applicable
prospectus supplement, together with all of the other information
contained or incorporated by reference in the prospectus supplement
or appearing or incorporated by reference in this prospectus. You
should also consider the risks, uncertainties and assumptions
discussed under the heading “Risk Factors” in our most recent
Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q
and other documents that we file with the SEC, which are
incorporated herein by reference as described in this prospectus
under the heading “Where You Can Find More Information”. The risks
and uncertainties we have described in such documents are not the
only risks that we face. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also
affect our operations.
USE OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement
relating to a specific offering, we intend to use the net proceeds
from the sale of securities by us under this prospectus for general
corporate purposes, which may include working capital, capital
expenditures, research and development expenditures, clinical trial
expenditures, commercial expenditures, acquisitions of new
technologies, products or businesses, and investments. Additional
information on the use of net proceeds from the sale of securities
by us under this prospectus may be set forth in the prospectus
supplement relating to the specific offering.
PLAN OF DISTRIBUTION
We
may sell the securities, from time to time pursuant to public
offerings, negotiated transactions, block trades, “At the Market
Offerings,” within the meaning of Rule 415(a)(4) of the Securities
Act into an existing trading market, at prevailing market prices,
or a combination of these methods. We may sell the securities to or
through underwriters or dealers, through agents or remarketing
firms, or directly to one or more purchasers. We may distribute
securities from time to time in one or more
transactions:
|
|
● |
at a
fixed price or prices, which may be changed; |
| |
|
|
|
● |
at
market prices prevailing at the time of sale; |
| |
|
|
|
● |
at
prices related to such prevailing market prices; or |
| |
|
|
|
● |
at
negotiated prices. |
A
prospectus supplement or supplements (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, to
the extent applicable:
|
|
● |
the
name or names of the underwriters, dealers or agents, if
any; |
| |
|
|
|
● |
if
the securities are to be offered through the selling efforts of
brokers or dealers, the plan of distribution and the terms of any
agreement, arrangement, or understanding entered into with
broker(s) or dealer(s) prior to the effective date of the
registration statement, and, if known, the identity of any
broker(s) or dealer(s) who will participate in the offering and the
amount to be offered through each; |
| |
|
|
|
● |
the
purchase price of the securities or other consideration therefor,
and the proceeds, if any, we will receive from the
sale; |
| |
|
|
|
● |
if
any of the securities being registered are to be offered otherwise
than for cash, the general purposes of the distribution, the basis
upon which the securities are to be offered, the amount of
compensation and other expenses of distribution, and by whom they
are to be borne; |
| |
|
|
|
● |
any
delayed delivery arrangements; |
| |
|
|
|
● |
any
options under which underwriters may purchase additional securities
from us; |
| |
|
|
|
● |
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation; |
| |
|
|
|
● |
any
public offering price; |
| |
|
|
|
● |
any
discounts, commissions or concessions allowed or reallowed or paid
to dealers; |
| |
|
|
|
● |
the
identity and relationships of any finders, if applicable;
and |
| |
|
|
|
● |
any
securities exchange or market on which the securities may be
listed. |
Only
underwriters named in the prospectus supplement will be
underwriters of the securities offered by the prospectus
supplement.
If
underwriters are used in the sale, they 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. Unless otherwise indicated in the
prospectus supplement, subject to certain conditions, the
underwriters will be obligated to purchase all of the securities
offered by the prospectus supplement, other than securities covered
by any over-allotment or other option. Any public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may change from time to time. We may use underwriters,
dealers or agents with whom we have a material relationship. We
will describe in the prospectus supplement, naming the underwriter,
dealer or agent, the nature of any such relationship.
We
may use a remarketing firm to offer the securities in connection
with a remarketing arrangement upon their purchase. Remarketing
firms will act as principals for their own account or as agents for
us. These remarketing firms will offer or sell the securities
pursuant to the terms of the securities. A prospectus supplement
will identify any remarketing firm and the terms of its agreement,
if any, with us and will describe the remarketing firm’s
compensation. Remarketing firms may be deemed to be underwriters in
connection the securities they remarket.
If we
offer and sell securities through a dealer, we or an underwriter
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. The name of the
dealer and the terms of the transaction will be set forth in the
applicable prospectus supplement.
We
may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay
to the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
Dealers
and agents participating in the distribution of the securities may
be deemed to be underwriters, and compensation received by them on
resale of the securities may be deemed to be underwriting
discounts. If such dealers or agents were deemed to be
underwriters, they may be subject to statutory liabilities under
the Securities Act.
We
may sell securities directly to one or more purchasers without
using underwriters or agents. Underwriters, dealers and agents that
participate in the distribution of the securities may be
underwriters as defined in the Securities Act, and any discounts or
commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and
commissions under the Securities Act.
We
may authorize agents or underwriters to solicit offers by certain
types of 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.
We
may provide agents, underwriters and dealers with indemnification
against civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the
agents, underwriters or dealers may make with respect to these
liabilities. Agents, underwriters and dealers, or their respective
affiliates, may engage in transactions with, or perform services
for, us in the ordinary course of business.
All
securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any
underwriter 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.
Any
underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Over-allotment involves sales
in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after
the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are
purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any
time.
Any
underwriters that are qualified market makers on the Nasdaq Stock
Market may engage in passive market making transactions in the
common stock on the Nasdaq Stock Market in accordance with
Regulation M under the Securities Exchange Act of 1934, as amended,
or the Exchange Act, 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.
Passive market making may stabilize the market price of the
securities at a level above that which might otherwise prevail in
the open market and, if commenced, may be discontinued at any
time.
GENERAL DESCRIPTION OF OUR
SECURITIES
We
may offer and sell, at any time and from time to time:
|
|
● |
shares
of our common stock; |
| |
|
|
|
● |
shares
of our preferred stock; |
| |
|
|
|
● |
warrants
to purchase shares of our common stock, preferred stock and/or debt
securities; |
| |
|
|
|
● |
debt
securities consisting of debentures, notes or other evidences of
indebtedness; |
| |
|
|
|
● |
units
consisting of a combination of the foregoing securities;
or |
| |
|
|
|
● |
any
combination of these securities. |
The
terms of any securities we offer will be determined at the time of
sale. We may issue debt securities that are exchangeable for and/or
convertible into common stock or any of the other securities that
may be sold under this prospectus. When particular securities are
offered by us, a supplement to this prospectus will be filed with
the SEC, which will describe the terms of the offering and sale of
the offered securities.
DESCRIPTION OF OUR COMMON
STOCK
The
following summary of the terms of our common stock is subject to
and qualified in its entirety by reference to our certificate of
incorporation and bylaws, copies of which are on file with the SEC
as exhibits to previous filings with the SEC. Please refer to
“Where You Can Find More Information” below for directions on
obtaining these documents.
Our
certificate of incorporation authorizes us to issue up to
110,000,000 shares, 100,000,000 of which is designated as common
stock with a par value of $0.0001 per share. As of January 19,
2022, there were 29,798,950 shares of common stock outstanding,
held by 106 stockholders of record. This figure does not reflect
the number of beneficial owners of shares of our common stock as a
single stockholder of record often holds shares in nominee name
(also referred to as, in “street name”) on behalf of multiple
beneficial owners.
Voting
Rights
Holders
of shares of our common stock are entitled to one vote for each
share held of record on all matters to be voted on by stockholders,
including the election of directors. When a quorum is present at
any meeting, a plurality of the votes properly cast for election to
any office shall elect to such office and a majority of the votes
properly cast upon any question other than an election to an office
shall decide the question, except when a larger vote is required by
law, by our certificate of incorporation or by our
bylaws.
Our
certificate of incorporation and bylaws do not provide for
cumulative voting rights. Because of this, the holders of a
majority of the shares of common stock entitled to vote in any
election of directors can elect all of the directors standing for
election, if they should so choose.
Dividend
Rights
Subject
to the preferences that may be applicable to any then outstanding
preferred stock, the holders of our outstanding shares of common
stock are entitled to receive dividends, if any, as may be declared
from time to time by our board of directors out of legally
available funds. We have never paid a dividend and we do not
anticipate paying a dividend in the foreseeable future.
Liquidation
Rights
In
the event of our liquidation, dissolution or winding up, holders of
our common stock will be entitled to share ratably in the net
assets legally available for distribution to stockholders after the
payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders
of any outstanding shares of preferred stock.
Other
Rights and Preferences
The
terms of our common stock do not include any preemptive, conversion
or subscription rights, nor any redemption or sinking fund
provisions. The common stock is not subject to future calls or
assessments by us. The rights, preferences and privileges of the
holders of our common stock are subject to, and may be adversely
affected by, the rights of shares of any series of our preferred
stock that we may classify and issue in the future.
Outstanding
Stock Options
As of
January 19, 2022, we had outstanding options to purchase 4,102,631
shares of our common stock at a weighted-average exercise price of
$5.15 per share, pursuant to our Third Amended and Restated 2013
Equity Incentive Plan (the “2013 Plan”). As of January 19, 2022,
there were 233,761 shares of our common stock reserved for future
issuance under our 2013 Plan.
As of
January 19, 2022, we had outstanding options to purchase 75,000
shares of our common stock at a weighted-average exercise price of
$10.68 per share, which options were issued outside of our equity
compensation plans as an inducement material to certain individuals
entering into employment with us in accordance with Nasdaq Listing
Rule 5635(c)(4).
Outstanding
Stock Units
As of
January 19, 2022, we had 584,600 shares of our common stock
underlying outstanding restricted stock units pursuant to our 2013
Plan.
2021
Employee Stock Purchase Plan
As of
January 19, 2022, there were 750,000 shares of our common stock
reserved for future issuance under our 2021 Employee Stock Purchase
Plan.
Outstanding
Warrants
As of
January 19, 2022, we had outstanding:
|
● |
warrants
held by investors in a March 2017 offering, to purchase up to an
aggregate of 68,330 shares of our common stock, at an exercise
price of $3.66 per share. |
|
● |
warrants
held by the placement agent in a March 2017 offering, to purchase
up to an aggregate of 7,541 shares of our common stock, at an
exercise price of $3.66 per share. |
|
● |
warrants
held by NitricGen, Inc. in partial consideration for a licensing
agreement to purchase up to an aggregate of 80,000 shares of our
common stock, at an exercise price of $6.90 per share. |
|
● |
warrants
held by a third party pursuant to a third-party license agreement,
to purchase up to an aggregate of 208,333 shares of our common
stock, at an exercise price of $4.80 per share. |
|
● |
warrants
held by lenders in a March 2020 loan, to purchase up to an
aggregate of 172,187 shares of our common stock, at an exercise
price of $7.26 per share. |
The
warrants issued in the March 2017 offering have down round
protection.
Description
of Certain Provisions of Delaware Law and our Certificate of
Incorporation and Bylaws
Section 203 of the Delaware General Corporation
Law
We
are subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a three-year
period following the time that this stockholder becomes an
interested stockholder, unless the business combination is approved
in a prescribed manner. Under Section 203, a business combination
between a corporation and an interested stockholder is prohibited
unless it satisfies one of the following conditions:
|
|
● |
prior
to the date of the transaction, the board of directors of the
corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder; |
|
|
● |
the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding upon consummation of the transaction,
excluding for purposes of determining the number of shares
outstanding (1) shares owned by persons who are directors and also
officers and (2) shares owned by employee stock plans in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or |
| |
|
|
|
|
● |
on or
subsequent to the consummation of the transaction, the business
combination is approved by the board of directors and authorized at
an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66-2/3% of the
outstanding voting stock which is not owned by the interested
stockholder. |
Section
203 defines a business combination to include:
|
|
● |
any
merger or consolidation involving the corporation and the
interested stockholder; |
| |
|
|
|
● |
any
sale, transfer, lease, pledge or other disposition involving the
interested stockholder of 10% or more of the assets of the
corporation; |
| |
|
|
|
● |
subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder; |
| |
|
|
|
● |
subject
to exceptions, 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; and |
| |
|
|
|
● |
the
receipt by the interested stockholder of the 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 the corporation and any entity or person affiliated
with or controlling or controlled by the entity or
person.
Certificate of Incorporation and Bylaws
Provisions
of our certificate of incorporation and bylaws may delay or
discourage transactions involving an actual or potential change of
control or change in our management, including transactions in
which stockholders might otherwise receive a premium for their
shares, or transactions that our stockholders might otherwise deem
to be in their best interests. Therefore, these provisions could
adversely affect the price of our common stock. Among other things,
our certificate of incorporation and our bylaws:
|
|
● |
permit
our board of directors to issue up to 10,000,000 shares of
preferred stock, with any rights, preferences and privileges as it
may designate, which issuance could result in the loss of voting
control by other stockholders; |
| |
|
|
|
● |
subject
to the rights of the holders of any series of preferred stock,
provide that all vacancies on our board of directors, including as
a result of newly created directorships, may, except as otherwise
required by law, be filled only by the affirmative vote of a
majority of directors then in office, even if less than a
quorum; |
| |
|
|
|
● |
provide
that stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide advance notice in writing,
and also specify requirements as to the form and content of a
stockholder’s notice; |
| |
|
|
|
● |
do
not provide for cumulative voting rights, thereby allowing the
holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors
standing for election; |
| |
|
|
|
● |
provide
that special meetings of our stockholders may be called only by the
(i) the chairperson of the board; (ii) our chief executive officer;
or (iii) a majority of the number of authorized directors;
and |
| |
|
|
|
● |
provide
that the Court of Chancery of the State of Delaware is the sole and
exclusive forum for: (A) any derivative action or proceeding
brought on behalf of us; (B) any action asserting a claim of breach
of a fiduciary duty owed by any of our directors, officers or other
employees to us or our stockholders; (C) any action asserting a
claim against us arising pursuant to any provision of the Delaware
General Corporation Law, our certificate of incorporation or our
bylaws; or (D) any action asserting a claim against us governed by
the internal affairs doctrine. Any person or entity purchasing or
otherwise acquiring any interest in shares of our capital stock
shall be deemed to have notice of and to have consented to the
foregoing exclusive forum. 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. In addition, Section 22
of the Securities Act creates concurrent jurisdiction for federal
and state courts over all suits brought to enforce any duty or
liability created by the Securities 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 Securities Act or any other claim for which the
federal and state courts have concurrent jurisdiction. |
The
Nasdaq Capital Market
Our
shares of common stock are listed for trading on the Nasdaq Capital
Market under the symbol “XAIR.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Action Stock
Transfer Corporation.
DESCRIPTION OF OUR PREFERRED
STOCK
We
currently have authorized 10,000,000 shares of preferred stock, par
value $0.0001 per share, of which no shares have been
designated.
Our
board of directors may, without further action by our stockholders,
from time to time, direct the issuance of shares of preferred stock
in series and may, at the time of issuance, determine and fix the
number of shares of such series and the designation of such series,
the voting powers, if any, of the shares of such series, the
preferences and relative, participating, optional or other special
rights, if any, and the qualifications, limitations or restrictions
thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation
preferences, of the shares of such series. Satisfaction of any
dividend preferences of outstanding shares of our preferred stock
would reduce the amount of funds available for the payment of
dividends on shares of our common stock. Holders of shares of our
preferred stock may be entitled to receive a preference payment in
the event of any liquidation, dissolution or winding-up of our
Company before any payment is made to the holders of shares of our
common stock. In some circumstances, the issuance of shares of
preferred stock may render more difficult or tend to discourage a
merger, tender offer or proxy contest, the assumption of control by
a holder of a large block of our securities or the removal of
incumbent management. Upon the affirmative vote of our board of
directors, without stockholder approval, we may issue shares of
preferred stock with voting and conversion rights which could
adversely affect the holders of shares of our common stock. It is
not possible to state the actual effect of the issuance of any
shares of preferred stock on the rights of holders of common stock
until the board of directors determines the specific rights
attached to that preferred stock. We have no current plan to issue
any shares of preferred stock.
If we
offer a specific series of preferred stock under this prospectus,
we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the
certificate establishing the terms of the preferred stock with the
SEC. To the extent required, this description will
include:
|
|
● |
the
title and stated value; |
| |
|
|
|
● |
the
number of shares offered, the liquidation preference per share, and
the purchase price; |
| |
|
|
|
● |
the
dividend rate(s), period(s), and/or payment date(s), or method(s)
of calculation for such dividends; |
| |
|
|
|
● |
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate; |
| |
|
|
|
● |
the
procedures for any auction and remarketing, if any; |
| |
|
|
|
● |
the
provisions for a sinking fund, if any; |
| |
|
|
|
● |
the
provisions for redemption, if applicable; |
| |
|
|
|
● |
any
listing of the preferred stock on any securities exchange or
market; |
| |
|
|
|
● |
whether
the preferred stock will be convertible into our common stock or
our other securities and, if applicable, the conversion price (or
how it will be calculated), the conversion period and any other
terms of conversion (including any anti-dilution provisions, if
any); |
| |
|
|
|
● |
whether
the preferred stock will be exchangeable into debt securities, and,
if applicable, the exchange price (or how it will be calculated),
the exchange period and any other terms of exchange (including any
anti-dilution provisions, if any); |
| |
|
|
|
● |
voting
rights, if any, of the preferred stock; |
| |
|
|
|
● |
a
discussion of any material and/or special U.S. federal income tax
considerations applicable to the preferred stock; |
| |
|
|
|
● |
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon liquidation, dissolution, or
winding up of our affairs; |
| |
|
|
|
● |
any
material limitations on issuance of any class or series of
preferred stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights upon our
liquidation, dissolution, or winding up; and |
| |
|
|
|
● |
any
other affirmative, negative or other covenants or contractual
rights which might be attendant with the specific series of
preferred stock. |
The
preferred stock offering by this prospectus, when issued, will not
have, or be subject to, any preemptive or similar
rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for any series of preferred stock will
be set forth in each applicable prospectus supplement.
DESCRIPTION OF OUR WARRANTS
We
may issue warrants to purchase shares of our common stock,
preferred stock and/or debt securities in one or more series
together with other securities or separately, as described in each
applicable prospectus supplement. Below is a description of certain
general terms and provisions of the warrants that we may offer.
Particular terms of the warrants will be described in the
applicable warrant agreements and the applicable prospectus
supplement for the warrants.
The
applicable prospectus supplement will contain, where applicable,
the following terms of and other information relating to the
warrants:
|
|
● |
the
specific designation and aggregate number of, and the price at
which we will issue, the warrants; |
| |
|
|
|
● |
the
currency or currency units in which the offering price, if any, and
the exercise price are payable; |
| |
|
|
|
● |
the
designation, amount and terms of the securities purchasable upon
exercise of the warrants; |
| |
|
|
|
● |
if
applicable, the exercise price for shares of our common stock and
the number of shares of common stock to be received upon exercise
of the warrants; |
| |
|
|
|
● |
if
applicable, the exercise price for shares of our preferred stock,
the number of shares of preferred stock to be received upon
exercise of the warrants, and a description of that series of our
preferred stock; |
| |
|
|
|
● |
if
applicable, the exercise price for our debt securities, the amount
of our debt securities to be received upon exercise of the
warrants, and a description of that series of debt
securities; |
| |
|
|
|
● |
the
date on which the right to exercise the warrants will begin and the
date on which that right will expire or, if the warrants may not be
continuously exercised throughout that period, the specific date or
dates on which the warrants may be exercised; |
| |
|
|
|
● |
whether
the warrants will be issued in fully registered form or bearer
form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a
unit will correspond to the form of the unit and of any security
included in that unit; |
| |
|
|
|
● |
any
applicable material U.S. federal income tax or foreign tax
consequences; |
| |
|
|
|
● |
the
identity of the warrant agent for the warrants, if any, and of any
other depositaries, execution or paying agents, transfer agents,
registrars or other agents; |
| |
|
|
|
● |
the
proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange or market; |
| |
|
|
|
● |
if
applicable, the date from and after which the warrants and the
common stock, preferred stock and/or debt securities will be
separately transferable; |
| |
|
|
|
● |
if
applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time; |
| |
|
|
|
● |
information
with respect to book-entry procedures, if any |
| |
|
|
|
● |
the
anti-dilution provisions of the warrants, if any; |
| |
|
|
|
● |
any
redemption, put or call provisions; |
| |
|
|
|
● |
whether
the warrants are to be sold separately or with other securities as
parts of units; and |
| |
|
|
|
● |
any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants. |
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in
the applicable prospectus supplement.
Description
of Outstanding Warrants
As of
January 19, 2022, there were a total of 536,391 warrants to
purchase shares of our common stock outstanding. See “Description
of Our Capital Stock - Description of Our Common Stock –
Outstanding Warrants.”
DESCRIPTION OF OUR DEBT
SECURITIES
This
section describes the general terms and provisions of the debt
securities that we may offer under this prospectus, any of which
may be issued as convertible or exchangeable debt securities. We
will set forth the particular terms of the debt securities we offer
in a prospectus supplement. The extent, if any, to which the
following general provisions apply to particular debt securities
will be described in the applicable prospectus supplement. The
following description of general terms relating to the debt
securities and the indenture under which the debt securities will
be issued are summaries only and therefore are not complete. You
should read the indenture and the prospectus supplement regarding
any particular issuance of debt securities.
We
will issue the debt securities offered by this prospectus and any
accompanying prospectus supplement under an indenture to be entered
into between us and the trustee identified in the applicable
prospectus supplement. The terms of the debt securities will
include those stated in the indenture and those made part of the
indenture by reference to the Trust Indenture Act of 1939, as in
effect on the date of the indenture. We have filed or will file a
copy of the form of indenture as an exhibit to the registration
statement in which this prospectus is included. The indenture will
be subject to and governed by the terms of the Trust Indenture Act
of 1939.
We
may offer under this prospectus up to an aggregate principal amount
of $200,000,000 in debt securities, or if debt securities are
issued at a discount, or in a foreign currency, foreign currency
units or composite currency, the principal amount as may be sold
for an aggregate initial public offering price of up to
$200,000,000. Unless otherwise specified in the applicable
prospectus supplement, the debt securities will represent direct,
unsecured obligations of Beyond Air and will rank equally with all
of our other unsecured indebtedness.
The
following statements relating to the debt securities and the
indenture are summaries, qualified in their entirety by reference
to the detailed provisions of the indenture and the final form
indenture as may be filed with a future prospectus
supplement.
General
We
may issue the debt securities in one or more series with the same
or various maturities, at par, at a premium, or at a discount. We
will describe the particular terms of each series of debt
securities in a prospectus supplement relating to that series,
which we will file with the SEC.
The
prospectus supplement will set forth, to the extent required, the
following terms of the debt securities in respect of which the
prospectus supplement is delivered:
|
|
● |
the
title of the series; |
| |
|
|
|
● |
the
aggregate principal amount; |
| |
|
|
|
● |
the
issue price or prices, expressed as a percentage of the aggregate
principal amount of the debt securities; |
| |
|
|
|
● |
any
limit on the aggregate principal amount; |
| |
|
|
|
● |
the
date or dates on which principal is payable; |
| |
|
|
|
● |
the
interest rate or rates (which may be fixed or variable) or, if
applicable, the method used to determine such rate or
rates; |
| |
|
|
|
● |
the
date or dates from which interest, if any, will be payable and any
regular record date for the interest payable; |
| |
|
|
|
● |
the
place or places where principal and, if applicable, premium and
interest, is payable; |
| |
|
|
|
● |
the
terms and conditions upon which we may, or the holders may require
us to, redeem or repurchase the debt securities; |
| |
|
|
|
● |
the
denominations in which such debt securities may be issuable, if
other than denominations of $1,000 or any integral multiple of that
number; |
| |
|
|
|
● |
whether
the debt securities are to be issuable in the form of certificated
debt securities (as described below) or global debt securities (as
described below); |
| |
|
|
|
● |
the
portion of principal amount that will be payable upon declaration
of acceleration of the maturity date if other than the principal
amount of the debt securities; |
| |
|
|
|
● |
the
currency of denomination; |
| |
|
|
|
● |
the
designation of the currency, currencies or currency units in which
payment of principal and, if applicable, premium and interest, will
be made; |
| |
|
|
|
● |
if
payments of principal and, if applicable, premium or interest, on
the debt securities are to be made in one or more currencies or
currency units other than the currency of denomination, the manner
in which the exchange rate with respect to such payments will be
determined; |
| |
|
|
|
● |
if
amounts of principal and, if applicable, premium and interest 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, then the manner in which such
amounts will be determined; |
| |
|
|
|
● |
the
provisions, if any, relating to any collateral provided for such
debt securities; |
| |
|
|
|
● |
any
addition to or change in the covenants and/or the acceleration
provisions described in this prospectus or in the
indenture; |
| |
|
|
|
● |
any
events of default, if not otherwise described below under “Events
of Default”; |
| |
|
|
|
● |
the
terms and conditions, if any, for conversion into or exchange for
shares of our common stock or preferred stock; |
| |
|
|
|
● |
any
depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents; and |
| |
|
|
|
● |
the
terms and conditions, if any, upon which the debt securities shall
be subordinated in right of payment to other indebtedness of Beyond
Air. |
We
may issue discount debt securities that provide for an amount less
than the stated principal amount to be due and payable upon
acceleration of the maturity of such debt securities in accordance
with the terms of the indenture. We may also issue debt securities
in bearer form, with or without coupons. If we issue discount debt
securities or debt securities in bearer form, we will describe
material U.S. federal income tax considerations and other material
special considerations that apply to these debt securities in the
applicable prospectus supplement.
We
may issue debt securities denominated in or payable in a foreign
currency or currencies or a foreign currency unit or units. If we
do, we will describe the restrictions, elections, and general tax
considerations relating to the debt securities and the foreign
currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Exchange and/or Conversion Rights
We
may issue debt securities which can be exchanged for or converted
into shares of our common stock or preferred stock. If we do, we
will describe the terms of exchange or conversion in the prospectus
supplement relating to these debt securities.
Transfer and Exchange
We
may issue debt securities that will be represented by
either:
|
|
● |
“book-entry
securities,” which means that there will be one or more global
securities registered in the name of a depositary or a nominee of a
depositary; or |
| |
|
|
|
● |
“certificated
securities,” which means that they will be represented by a
certificate issued in definitive registered form. |
We
will specify in the prospectus supplement applicable to a
particular offering whether the debt securities offered will be
book-entry or certificated securities.
Certificated Debt Securities
If
you hold certificated debt securities issued under an indenture,
you may transfer or exchange such debt securities in accordance
with the terms of the indenture. You will not be charged a service
charge for any transfer or exchange of certificated debt securities
but may be required to pay an amount sufficient to cover any tax or
other governmental charge payable in connection with such transfer
or exchange.
Global Securities
The
debt securities of a series may be issued in the form of one or
more global securities that will be deposited with a depositary or
its nominees identified in the prospectus supplement relating to
the debt securities. In such a case, one or more global securities
will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal amount of outstanding
debt securities of the series to be represented by such global
security or securities.
Unless
and until it is exchanged in whole or in part for debt securities
in definitive registered form, a global security may not be
registered for transfer or exchange except as a whole by the
depositary for such global security to a nominee of the depositary
and except in the circumstances described in the prospectus
supplement relating to the debt securities. The specific terms of
the depositary arrangement with respect to a series of debt
securities will be described in the prospectus supplement relating
to such series.
Protection in the Event of Change of Control
Any
provision in an indenture that governs our debt securities covered
by this prospectus that includes any covenant or other provision
providing for a put or increased interest or otherwise that would
afford holders of our debt securities additional protection in the
event of a recapitalization transaction, a change of control of the
Company, or a highly leveraged transaction will be described in the
applicable prospectus supplement.
Covenants
Unless
otherwise indicated in this prospectus or the applicable prospectus
supplement, our debt securities may not have the benefit of any
covenant that limits or restricts our business or operations, the
pledging of our assets or the incurrence by us of indebtedness. We
will describe in the applicable prospectus supplement any material
covenants in respect of a series of debt securities.
Consolidation, Merger and Sale of Assets
We
may agree in any indenture that governs the debt securities of any
series covered by this prospectus that we will not consolidate with
or merge into any other person or convey, transfer, sell or lease
our properties and assets substantially as an entirety to any
person, unless such person and such proposed transaction meets
various criteria, which we will describe in detail in the
applicable prospectus supplement.
Defaults and Notice
The
debt securities of any series will contain events of default to be
specified in the applicable prospectus supplement, which may
include, without limitation:
|
|
● |
failure
to pay the principal of, or premium or make-whole amount, if any,
on any debt security of such series when due and payable (whether
at maturity, by call for redemption, through any mandatory sinking
fund, by redemption at the option of the holder, by declaration or
acceleration or otherwise); |
| |
|
|
|
● |
failure
to make a payment of any interest on any debt security of such
series when due; |
| |
|
|
|
● |
failure
to perform or observe any other covenants or agreements in the
indenture with respect to the debt securities of such
series; |
| |
|
|
|
● |
certain
events relating to our bankruptcy, insolvency or reorganization;
and |
| |
|
|
|
● |
certain
cross defaults, if and as applicable. |
If an
event of default with respect to debt securities of any series
shall occur and be continuing, we may agree that the trustee or the
holders of at least 25% in aggregate principal amount of the then
outstanding debt securities of such series may declare the
principal amount (or, if the debt securities of such series are
issued at an original issue discount, such portion of the principal
amount as may be specified in the terms of the debt securities of
such series) of all debt securities of such series or such other
amount or amounts as the debt securities or supplemental indenture
with respect to such series may provide, to be due and payable
immediately. Any provisions pertaining to events of default and any
remedies associated therewith will be described in the applicable
prospectus supplement.
Any
indenture that governs our debt securities covered by this
prospectus may require that the trustee under such indenture shall,
within 90 days after the occurrence of a default, give to holders
of debt securities of any series notice of all uncured defaults
with respect to such series known to it. However, in the case of a
default that results from the failure to make any payment of the
principal of, premium or make-whole amount, if any, or interest on
the debt securities of any series, or in the payment of any
mandatory sinking fund installment with respect to debt securities
of such series, if any, the trustee may withhold such notice if it
in good faith determines that the withholding of such notice is in
the interest of the holders of debt securities of such series. Any
terms and provisions relating to the foregoing types of provisions
will be described in further detail in the applicable prospectus
supplement.
Any
indenture that governs our debt securities covered by this
prospectus will contain a provision entitling the trustee to be
indemnified by holders of debt securities before proceeding to
exercise any trust or power under the indenture at the request of
such holders. Any such indenture may provide that the holders of at
least a majority in aggregate principal amount of the then
outstanding debt securities of any series may direct the time,
method and place of conducting any proceedings for any remedy
available to the trustee, or of exercising any trust or power
conferred upon the trustee with respect to the debt securities of
such series. However, the trustee under any such indenture may
decline to follow any such direction if, among other reasons, the
trustee determines in good faith that the actions or proceedings as
directed may not lawfully be taken, would involve the trustee in
personal liability or would be unduly prejudicial to the holders of
the debt securities of such series not joining in such
direction.
Any
indenture that governs our debt securities covered by this
prospectus may endow the holders of such debt securities to
institute a proceeding with respect to such indenture, subject to
certain conditions, which will be specified in the applicable
prospectus supplement and which may include, that the holders of at
least a majority in aggregate principal amount of the debt
securities of such series then outstanding make a written request
upon the trustee to exercise its power under the indenture,
indemnify the trustee and afford the trustee reasonable opportunity
to act. Even so, such holders may have an absolute right to receipt
of the principal of, premium or make-whole amount, if any, and
interest when due, to require conversion or exchange of debt
securities if such indenture provides for convertibility or
exchangeability at the option of the holder and to institute suit
for the enforcement of such rights. Any terms and provisions
relating to the foregoing types of provisions will be described in
further detail in the applicable prospectus supplement.
Modification of the Indenture
We
and the trustee may modify any indenture that governs our debt
securities of any series covered by this prospectus with or without
the consent of the holders of such debt securities, under certain
circumstances to be described in a prospectus
supplement.
Defeasance; Satisfaction and Discharge
The
prospectus supplement will outline the conditions under which we
may elect to have certain of our obligations under the indenture
discharged and under which the indenture obligations will be deemed
to be satisfied.
Regarding the Trustee
We
will identify the trustee and any relationship that we may have
with such trustee, with respect to any series of debt securities,
in the prospectus supplement relating to the applicable debt
securities. You should note that if the trustee becomes a creditor
of Beyond Air, the indenture and the Trust Indenture Act of 1939
limit the rights of the trustee to obtain payment of claims in
certain cases, or to realize on certain property received in
respect of any such claim, as security or otherwise. The trustee
and its affiliates may engage in, and will be permitted to continue
to engage in, other transactions with us and our affiliates. If,
however, the trustee acquires any “conflicting interest” within the
meaning of the Trust Indenture Act of 1939, it must eliminate such
conflict or resign.
Governing Law
The
law governing the indenture and the debt securities will be
identified in the prospectus supplement relating to the applicable
indenture and debt securities.
DESCRIPTION OF OUR UNITS
The
following description, together with the additional information we
include in any applicable prospectus supplement, summarizes the
material terms and provisions of the units that we may offer under
this prospectus. Units may be offered independently or together
with common stock, preferred stock, debt securities and/or warrants
offered by any prospectus supplement, and may be attached to or
separate from those securities. While the terms we have summarized
below will generally apply to any future units that we may offer
under this prospectus, we will describe the particular terms of any
series of units that we may offer 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.
We
will incorporate by reference into the registration statement of
which this prospectus forms a part the form of unit agreement,
including a form of unit certificate, if any, that describes the
terms of the series of units we are offering before the issuance of
the related series of units. The following summaries of material
provisions of the units, and the unit agreements, are subject to,
and qualified in their entirety by reference to, all the provisions
of the unit agreement applicable to a particular series of units.
We urge you to read the applicable prospectus supplements related
to the units that we sell under this prospectus, as well as the
complete unit agreements that contain the terms of the
units.
General
We
may issue units comprised of one or more shares of our common stock
or 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:
|
|
● |
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; |
| |
|
|
|
● |
the
rights and obligations of the unit agent, if any; |
| |
|
|
|
● |
any
provisions of the governing unit agreement that differ from those
described below; and |
| |
|
|
|
● |
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 Our Common Stock,” “Description of our
Preferred Stock,” “Description of Our Debt Securities” and
“Description of Our Warrants,” will apply to each unit and to any
common stock, preferred stock, debt securities or warrants included
in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as
we determine.
WHERE YOU CAN FIND MORE
INFORMATION
We
file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains an Internet
website at www.sec.gov that contains reports, proxy and information
statements, and other information regarding issuers that file
electronically with the SEC. Our reports on Forms 10-K, 10-Q and
8-K, and amendments to those reports, are also available for
download, free of charge, as soon as reasonably practicable after
these reports are filed with, or furnished to, the SEC, at our
website at www.beyondair.net. Information contained on or
accessible through our website is not a part of this prospectus or
any prospectus supplement, and the inclusion of our website address
in this prospectus is an inactive textual reference
only.
INCORPORATION BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus
the information in other documents that we file with it. This means
that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information in
documents that we file later with the SEC will automatically update
and supersede information contained in documents filed earlier with
the SEC or contained in this prospectus. We incorporate by
reference in this prospectus (i) the documents listed below, (ii)
all documents that we file with the SEC under Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of the initial
filing of the registration statement of which this prospectus is
included and prior to the effectiveness of such registration
statement, and (iii) and any future filings that we may make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act prior to the termination of the offering under this prospectus;
provided, however, that we are not incorporating, in each case, any
documents or information deemed to have been furnished and not
filed, including any information that we disclose under Items 2.02
or 7.01 of any Current Report on Form 8-K, in accordance with SEC
rules:
|
|
● |
our
Annual Report on Form 10-K for the fiscal year
ended March 31, 2021, filed with the SEC on June 10, 2021, as
amended by our Annual Report on Form 10-K/A filed with the SEC on
July 23, 2021; |
| |
|
|
|
● |
our
Quarterly Reports on Form 10-Q for the quarterly period ended June
30, 2021, filed with the SEC on August 10, 2021, and September
30, 2021, filed with the SEC on November 12, 2021; |
| |
|
|
|
● |
our
Current Reports on Form 8-K, filed with the SEC on May 13, 2021, May 26, 2021, August 25, 2021, September 27, 2021, October 20, 2021, November 5, 2021, November 15, 2021 (except Item
2.02 and the portions of Item 99.1 covered by Item 2.02) and
December 10, 2021;
and |
| |
|
|
|
● |
the
description of our common stock contained in our Registration
Statement on Form 8-A, filed with the SEC on
May 3, 2019, including any amendments or reports filed for the
purpose of updating such description. |
You
may request, orally or in writing, a copy of any or all of the
documents incorporated herein by reference. These documents will be
provided to you at no cost, by contacting: Adam T. Newman, c/o
Beyond Air, Inc., at 900 Stewart Avenue, Suite 301, Garden City,
New York 11530. In addition, copies of any or all of the documents
incorporated herein by reference may be accessed at our website at
www.beyondair.net. The information on such website is not
incorporated by reference and is not a part of this
prospectus.
LEGAL MATTERS
The
validity of the issuance of the securities offered hereby will be
passed upon for us by Hogan Lovells US LLP. As appropriate, legal
counsel representing the underwriters, dealers or agents will be
named in the accompanying prospectus supplement and may opine to
certain legal matters.
EXPERTS
The
consolidated financial statements as of March 31, 2021 and 2020 and
for each of the years in the two year period ended March 31, 2021
incorporated by reference in this prospectus from our Annual Report
on Form 10-K for the year ended March 31, 2021 have been so
included in reliance on the report of Friedman LLP, an independent
registered public accounting firm, given on the authority of said
firm as experts in accounting and auditing.
$200,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Units
PROSPECTUS
,
2022
Beyond Air (NASDAQ:XAIR)
Historical Stock Chart
From Jul 2022 to Aug 2022
Beyond Air (NASDAQ:XAIR)
Historical Stock Chart
From Aug 2021 to Aug 2022
