PROSPECTUS SUPPLEMENT
(To Prospectus dated July 27, 2021) |
Filed pursuant to Rule
424(b)(5)
Registration Statement No. 333-257910 |

Up to $25,000,000
Common Stock
|
We have entered into an Open Market Sale AgreementSM
(the “Sale Agreement”) with Jefferies LLC (“Jefferies” or the
“Agent”), dated December 30, 2021, relating to the sale of shares
of our common stock, $0.001 par value per share (the “Common
Stock”). In accordance with the terms of the Sale Agreement, under
this prospectus supplement and the accompanying prospectus, we may
offer and sell shares of our Common Stock, having an aggregate
offering price of up to $25,000,000 from time to time through the
Agent, acting as our sales agent, or directly to the Agent, acting
as principal.
Sales of our Common Stock, if any, under this prospectus supplement
and the accompanying prospectus may be made in sales deemed to be
“at the market offerings” as defined in Rule 415(a)(4) promulgated
under the Securities Act of 1933, as amended (the “Securities
Act”). The Agent is not required to sell any specific amount of
securities but will act as our sales agent using commercially
reasonable efforts consistent with its normal trading and sales
practices, on mutually agreed terms between the Agent and us. There
is no arrangement for funds to be received in any escrow, trust or
similar arrangement.
The Agent will be entitled to compensation at a commission rate
equal to 3.0% of the gross sales price per share of Common Stock
sold pursuant to the terms of the Sale Agreement. In connection
with the sale of the Common Stock on our behalf, the Agent will be
deemed to be an “underwriter” within the meaning of the Securities
Act and the compensation of the Agent will be deemed to be
underwriting commissions or discounts. We also have agreed to
provide indemnification and contribution to the Agent with respect
to certain liabilities, including liabilities under the Securities
Act or the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). See “Plan of Distribution” beginning on page S-13
for additional information regarding the compensation to be paid to
the Agent.
Our Common Stock is listed on the Nasdaq Capital Market under the
symbol “CTSO.” The last reported sale price of our Common Stock on
December 29, 2021 was $4.15 per share.
Investing in our Common Stock involves significant risks. See “Risk
Factors” beginning on page S-9 of this prospectus supplement and in
the documents incorporated by reference in this prospectus
supplement for a discussion of the factors you should consider
before deciding to purchase our Common Stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus supplement or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus supplement is December 30,
2021.
TABLE OF CONTENTS
Prospectus Supplement
Prospectus
ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus supplement and the accompanying prospectus relates
to the offering of shares of our Common Stock. Before buying any
shares of our Common Stock offered hereby, we urge you to read
carefully this prospectus supplement, the accompanying prospectus,
and any free writing prospectus that we have authorized for use in
connection with this offering, together with the information
incorporated herein by reference as described under the headings
“Where You Can Find More Information” and “Incorporation by
Reference.” These documents contain important information that you
should consider when making your investment decision. This
prospectus supplement and the accompanying prospectus contains
information about the Common Stock offered hereby.
You should rely only on the information that we have provided or
incorporated by reference in this prospectus supplement or the
accompanying prospectus. We have not, and the Agent has not,
authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it.
This document is in two parts. The first part is this prospectus
supplement, which describes the terms of this offering and also
adds to and updates information contained in the accompanying
prospectus and the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus. The second
part, the accompanying prospectus dated July 27, 2021, including
the documents incorporated by reference therein, provides more
general information, some of which may not apply to this offering.
Generally, when we refer to this prospectus, we are referring to
both parts of this document combined. To the extent there is a
conflict between (i) the information contained in this prospectus
supplement and (ii) the information contained in the accompanying
prospectus or in any document incorporated by reference that was
filed with the Securities and Exchange Commission (the “SEC”)
before the date of this prospectus supplement, you should rely on
the information in this prospectus supplement. If any statement in
one of these documents is inconsistent with a statement in another
document having a later date — for example, a document incorporated
by reference in the accompanying prospectus — the statement in the
document having the later date modifies or supersedes the earlier
statement.
We are not making offers to sell or solicitations to buy our Common
Stock in any jurisdiction in which an offer or solicitation is not
authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make an offer or solicitation. You should assume that the
information in this prospectus supplement, the accompanying
prospectus or any related free writing prospectus is accurate only
as of the date on the front of the document and that any
information that we have incorporated by reference is accurate only
as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus supplement or
any related free writing prospectus, or any sale of a security.
Unless the context otherwise indicates, references in this
prospectus supplement to “we,” “our” and “us” collectively refer to
CytoSorbents Corporation, a Delaware corporation.
MARKET DATA
This prospectus supplement and the documents incorporated by
reference herein include market and industry data and forecasts
concerning our business and the markets in which we operate,
including data regarding the estimated size of those markets and
the prevalence of certain medical conditions, that we have derived
from independent consultant reports, publicly available
information, various industry, medical and general publications,
other published industry sources, government data and our internal
data and estimates. Independent consultant reports, industry
publications and other published industry sources generally
indicate that the information contained therein was obtained from
sources believed to be reliable. Our internal data and estimates
are based upon information obtained from trade and business
organizations and other contacts in the markets in which we operate
and our management’s understanding of industry conditions.
FORWARD-LOOKING
STATEMENTS
This prospectus supplement and the information incorporated by
reference in this prospectus supplement include “forward-looking
statements” within the meaning of Section 27A of the Securities Act
and Section 21E of the Exchange Act. All statements, other than
statements of historical fact, included or incorporated by
reference herein regarding our strategy, future operations,
clinical trials, collaborations, intellectual property, expected
addressable markets, cash resources, financial position, future
revenues, projected costs, prospects, plans, and objectives of
management are forward-looking statements. The words “believes,”
“anticipates,” “estimates,” “plans,” “expects,” “intends,” “may,”
“could,” “should,” “potential,” “likely,” “projects,” “continue,”
“will,” “would” and similar expressions, and the negatives thereof,
are intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words.
These statements are based on current expectations, estimates,
forecasts and projections about the industry in which we operate
and the beliefs and assumptions of our management. We cannot
guarantee that we actually will achieve the plans, intentions or
expectations disclosed in our forward-looking statements and you
should not place undue reliance on our forward-looking statements.
There are a number of important factors that could cause our actual
results to differ materially from those indicated or implied by
forward-looking statements. Accordingly, you are cautioned that
these forward-looking statements are only predictions and are
subject to risks, uncertainties and assumptions, including those
referenced in the sections entitled “Risk Factors” included in this
prospectus supplement and the accompanying prospectus, as well as
in our most recent Annual Report on Form 10-K and Quarterly Report
on Form 10-Q, which are incorporated herein by reference and those
Current Reports on Form 8-K that are incorporated herein by
reference. These risks and uncertainties include, among other
matters: (i) our history of losses and expectation that we will
continue to incur substantial future losses; (ii) our additional
capital needs; (iii) the lack of assurance that we will be
successful in developing and expanding commercial operations or
balancing our research and development activities with our
commercialization activities; (iv) our ability to receive adequate
reimbursement from third-party payors; (v) our dependence on key
personnel; (vi) acceptance of our medical devices in the
marketplace; (vii) our ability to obtain and maintain patent
protection; (viii) potential litigation; (ix) our ability to obtain
and maintain regulatory approval; (x) our ability to successfully
complete clinical studies; (xi) our exposure to product liability
risk; and (xii) the results of a global pandemic which has
adversely affected, and may continue to adversely affect, our
business by disrupting product sales, production, and/or impairing
our progress in clinical trials.
You also should carefully review the risk factors and cautionary
statements described in the other documents we file or furnish from
time to time with the SEC, including our most recent Annual Report
on Form 10-K, our Quarterly Reports on Form 10-Q and our Current
Reports on Form 8-K. In addition, any forward-looking statement
represents our estimates only as of the date that such statement
was made, and should not be relied upon as representing our
estimates as of any subsequent date.
We do not assume any obligation to update any forward-looking
statements. We disclaim any intention or obligation to update or
revise any forward-looking statement, whether as a result of new
information, future events or otherwise.
PROSPECTUS SUPPLEMENT
SUMMARY
This summary highlights certain information about us, this
offering, and selected information contained elsewhere in or
incorporated by reference into this prospectus supplement. This
summary is not complete and does not contain all of the information
that you should consider before deciding whether to invest in our
Common Stock. For a more complete understanding of our company and
this offering, we encourage you to read and consider carefully the
more detailed information in this prospectus supplement and the
accompanying prospectus, including the information incorporated by
reference in this prospectus supplement, and the information
included in any free writing prospectus that we have authorized for
use in connection with this offering, including the information
under the heading “Risk Factors” beginning on page S-9 and in the
documents incorporated by reference into this prospectus
supplement.
Our Business
We are a leader in the treatment of life-threatening conditions in
intensive care and cardiac surgery. We are investigating and
commercializing our blood purification technology to reduce deadly
uncontrolled inflammation in hospitalized patients around the
world, with the goal of preventing or treating multiple organ
failure in life-threatening illnesses and cardiac surgery. Organ
failure is the cause of nearly half of all deaths in the intensive
care unit (“ICU”), with little to improve clinical outcome.
CytoSorb, our flagship product, is approved in the European Union
(“EU”) as an extracorporeal cytokine adsorber and is designed to
reduce the “cytokine storm” that could otherwise cause massive
inflammation, organ failure and death in common critical illnesses
such as sepsis, burn injury, trauma, lung injury, and pancreatitis.
These are conditions where the mortality is extremely high, yet few
to no effective treatments exist. In May 2018, we received a label
expansion for CytoSorb covering use of the device for the removal
of bilirubin and myoglobin in the treatment of liver disease and
trauma, respectively. In January 2020, we received a further EU
label expansion for CytoSorb to remove the anti-platelet agent,
ticagrelor, during urgent and emergent cardiothoracic surgery on
cardiopulmonary bypass. In May 2020, we received another EU label
expansion for CytoSorb to remove rivaroxaban, a Factor Xa
inhibitor, for the same indication.
In April 2020, we announced that the United States Food and Drug
Administration (“FDA”) had granted our technology Breakthrough
Designation for the removal of ticagrelor in a cardiopulmonary
bypass circuit during emergent and urgent cardiothoracic surgery.
If FDA marketing approval for this indication is obtained, the
device would be marketed as DrugSorb-ATR in the United States. The
DrugSorb-ATR Antithrombotic Removal System is based on the same
polymer technology as CytoSorb. We believe the current addressable
market in the United States for ticagrelor removal in cardiac
surgery is approximately $250 million based on our expected pricing
model, assuming FDA marketing approval, and we believe the
addressable market in the United States could expand to $500
million in the event that ticagrelor gain market share as the only
reversible mainstream anti-platelet agent.
In August 2021, we announced that we were granted a second
Breakthrough Device designation for our DrugSorb-ATR Antithrombotic
Removal System by the FDA. This Breakthrough Device designation
covers the removal of the Direct Oral Anticoagulants (“DOACs”)
apixaban and rivaroxaban in a cardiopulmonary bypass circuit to
reduce the likelihood of serious perioperative bleeding during
urgent cardiothoracic surgery. In the event that DrugSorb-ATR also
obtains FDA marketing approval to remove the DOACs apixaban and
rivaroxaban, we believe the total addressable market in the United
States for ticagrelor and DOAC removal during cardiothoracic
surgery could potentially increase to approximately $1.0 billion.
In the event that DrugSorb-ATR obtains FDA marketing approval to be
used prophylactically to remove ticagrelor, apixaban, and
rivaroxaban in all patients undergoing surgery, we believe it would
potentially expand the total addressable market in the United
States to approximately $2.0 billion.
CytoSorb is used during and after cardiac surgery to remove
inflammatory mediators, such as cytokines, activated complement,
and free hemoglobin that can lead to post-operative complications
such as acute kidney injury, lung injury, shock, and stroke. We
believe CytoSorb has the potential to be used in many other
inflammatory conditions, including the treatment of autoimmune
disease flares, cytokine release syndrome in cancer immunotherapy,
and other applications in cancer, such as cancer cachexia. As of
the filing of our most recent Quarterly Report on Form 10-Q, more
than 152,000 CytoSorb devices had been utilized in critical
illnesses and in cardiac surgery. CytoSorb has received CE-Mark
label expansions for the removal of bilirubin (liver disease),
myoglobin (trauma), and both ticagrelor and rivaroxaban during
cardiothoracic surgery. In April 2020, CytoSorb also received FDA
Emergency Use Authorization (“EUA”) in the United States for use in
adult critically-ill COVID-19 patients with imminent or confirmed
respiratory failure, in defined circumstances. The EUA will be
effective until a declaration is made that the circumstances
justifying the EUA have terminated or until revoked by the FDA. As
with other EUA therapies, CytoSorb has neither been cleared nor
approved for the indication to treat patients with COVID-19
infection. As of the filing of our most recent Quarterly Report on
Form 10-Q, CytoSorb had been used globally in more than 6,900
COVID-19 patients. Our technology has also been granted two FDA
Breakthrough Designations for the removal of ticagrelor and the
removal of the DOAC apixaban and rivaroxaban in a cardiopulmonary
bypass circuit during urgent cardiothoracic surgery, and if FDA
marketing approval is obtained for these indications, the device
would be marketed as the DrugSorb-ATR Antithrombotic Removal System
in the United States. In July 2021, we received full approval of
our Investigational Device Exemption (“IDE”) by the FDA to conduct
the pivotal STAR-T (Safe and Timely Antithrombotic Removal –
Ticagrelor) double-blind, randomized control trial for up to 120
patients in the United States to support FDA marketing approval. In
October 2021, we also received full FDA approval of an IDE
application to conduct a double-blind, randomized, controlled
clinical study for up to 120 patients entitled, “Safe and Timely
Antithrombotic Removal – Direct Oral Anticoagulants (STAR-D),” in
the United States to support FDA marketing approval.
Our purification technologies are based on biocompatible, highly
porous polymer beads that can actively remove toxic substances from
blood and other bodily fluids by pore capture and surface
adsorption. The technology is protected by 20 issued U.S. patents
and multiple international patents, with applications pending both
in the U.S. and internationally. In October 2020, we announced the
EU approval of the ECOS-300CY™ adsorption cartridge for use with ex
vivo organ perfusion systems to remove cytokines and other
inflammatory mediators in the organ perfusate, with the goal of
improving solid organ support or rehabilitation. We have numerous
other product candidates under development based upon this unique
blood purification technology, including CytoSorb XL,
K+ontrol, HemoDefend-RBC, HemoDefend-BGA, ContrastSorb,
DrugSorb, DrugSorb-ATR, and others.
In March 2011, CytoSorb was “CE Marked” in the EU as an
extracorporeal cytokine adsorber indicated for use in clinical
situations where cytokines are elevated, allowing for commercial
marketing. The CE Mark demonstrates that a conformity assessment
has been carried out and the product complies with the Medical
Devices Directive. The goal of CytoSorb is to prevent or treat
organ failure by reducing cytokine storm and the potentially deadly
systemic inflammatory response syndrome (“SIRS”) in diseases such
as sepsis, trauma, burn injury, acute respiratory distress
syndrome, pancreatitis, liver failure, and many others. Organ
failure is the leading cause of death in the ICU, and remains a
major unmet medical need, with little more than supportive care
therapy (e.g., mechanical ventilation, dialysis, vasopressors,
fluid support, etc.) as treatment options. By potentially
preventing or treating organ failure, CytoSorb may improve clinical
outcome, including survival, while reducing the need for costly ICU
treatment, thereby potentially saving significant healthcare
costs.
The market focus for CytoSorb is the prevention or treatment of
organ failure in life-threatening conditions, including commonly
seen illnesses in the ICU such as infection and sepsis, trauma,
burn injury, acute respiratory distress syndrome, and others.
Severe sepsis and septic shock, a potentially life-threatening
systemic inflammatory response to a serious infection, accounts for
approximately 10% to 20% of all ICU admissions and is responsible
for an estimated one in every five deaths worldwide. Sepsis is one
of the largest target markets for CytoSorb. Sepsis is a major unmet
medical need with no approved products in the U.S. or Europe to
treat it. As with other critical care illnesses, multiple organ
failure is the primary cause of death in sepsis. When used with
standard of care therapy, including antibiotics, the goal of
CytoSorb in sepsis is to reduce excessive levels of cytokines and
other inflammatory toxins, to help reduce the SIRS response and
either prevent or treat organ failure.
We intend to conduct or support additional clinical studies in the
future in the core applications of critical care medicine and
cardiac surgery. We intend to generate additional clinical data to
expand the scope of clinical experience for marketing purposes, to
increase the number of treated patients, and to support potential
future regulatory submissions.
Our proprietary polymer technologies form the basis of a broad
technology portfolio. Some of our products and product candidates
include:
|
· |
CytoSorb - an extracorporeal hemoperfusion cartridge approved
in the EU for cytokine removal, with the goal of reducing SIRS and
sepsis and preventing or treating organ failure. |
|
· |
DrugSorb-ATR — an investigational extracorporeal antithrombotic
removal system based on the same polymer technology as CytoSorb
that is being evaluated in the U.S. STAR-T and STAR-D pivotal
randomized, controlled trial to reduce the antithrombotic drugs,
ticagrelor, apixaban, and rivaroxaban to reduce bleeding
complications in patients undergoing cardiothoracic surgery while
on these drugs. |
|
· |
ECOS-300CY — an adsorption cartridge approved in the EU for use
with ex vivo organ perfusion systems to remove cytokines and other
inflammatory mediators in the organ perfusate, with the goal of
improving solid organ support or rehabilitation. |
|
· |
CytoSorb XL — an intended next generation successor to CytoSorb
currently in advanced pre-clinical testing designed to reduce a
broad range of cytokines and inflammatory mediators, including
lipopolysaccharide endotoxin, from blood. |
|
· |
VetResQ — a broad spectrum blood purification adsorber designed
to help treat deadly inflammation and toxic injury in animals with
critical illnesses such as septic shock, toxic shock syndrome,
severe systemic inflammation, toxin-mediated diseases,
pancreatitis, trauma, liver failure, and drug intoxication. VetResQ
is being commercialized in the United States. |
|
· |
HemoDefend-RBC—a development-stage blood purification
technology designed to remove non-infectious contaminants in blood
transfusion products, with the goal of reducing transfusion
reactions and improving the quality and safety of blood. |
|
· |
HemoDefend-BGA—a development-stage purification technology that
can remove anti-A and anti-B antibodies from plasma and whole
blood, to enable “universal plasma,” and safer whole blood
transfusions, respectively. |
|
· |
K+ontrol—a development-stage blood purification
technology designed to reduce excessive levels of potassium in the
blood that can be fatal in severe hyperkalemia. |
|
· |
ContrastSorb—a development-stage extracorporeal hemoperfusion
cartridge designed to remove IV contrast from the blood of
high-risk patients undergoing radiological imaging with contrast,
or interventional radiology procedures such as cardiac
catheterization and angioplasty. The goal of ContrastSorb is to
prevent contrast-induced nephropathy. |
|
· |
DrugSorb—a development-stage extracorporeal hemoperfusion
cartridge designed to remove toxic chemicals from the blood (e.g.,
drug overdose, high dose regional chemotherapy). |
|
· |
BetaSorb—a development-stage extracorporeal hemoperfusion
cartridge designed to remove mid-molecular weight toxins, such as
b2-microglobulin, that standard high-flux dialysis cannot remove
effectively. The goal of BetaSorb is to improve the efficacy of
dialysis or hemofiltration. |
As at September 30, 2021, the Company had a cash balance of
approximately $61.0 million and no debt.
Corporate Information
Our executive offices are located at 7 Deer Park Drive, Suite K,
Monmouth Junction, New Jersey 08852, and our telephone number is
(732) 329-8885. Our website address
is http://www.cytosorbents.com. We have included our
website address as an inactive textual reference only. We are
not including the information contained at
http://www.cytosorbents.com, or at any other website
address, as part of, or incorporating it by reference into, this
prospectus supplement or the accompanying prospectus.
THE OFFERING
Common Stock offered by
us: |
Shares of Common Stock having an
aggregate offering price of up to $25,000,000. |
Common Stock to be outstanding after
this offering: |
Up to 49,499,744 shares, assuming
sales of 6,024,096 shares of Common Stock in this offering at an
offering price of $4.15 per share, which was the last reported sale
price of our Common Stock on the Nasdaq Capital Market on December
29, 2021. The actual number of shares issued will vary depending on
the sales price under this offering. |
Plan of Distribution::
|
“At the market offering” made from
time to time through our sales agent, Jefferies LLC. See
“Plan of Distribution” beginning on page S-13 of this prospectus
supplement. |
Use of Proceeds: |
We intend to use the net proceeds
received from the sale of our Common Stock for general corporate
purposes, including to fund clinical studies in the United States
and abroad, expand production capacity, support our sales and
marketing efforts, further develop our products, and for general
operating expenses. See “Use of Proceeds” on page
S-11. |
Risk Factors: |
See “Risk Factors” beginning on page
S-9 of this prospectus supplement and the other information
included in, or incorporated by reference into, this prospectus
supplement for a discussion of certain factors you should carefully
consider before deciding to invest in shares of our Common
Stock. |
Nasdaq Capital Market
symbol |
“CTSO” |
The number of shares of Common Stock to be outstanding after this
offering, as set forth above, is based on 43,475,648 shares of
Common Stock outstanding as of September 30, 2021, which amount
excludes:
|
· |
6,864,854 aggregate shares of our Common Stock issuable upon
the exercise of stock options outstanding under our 2014 Long-Term
Incentive Plan (the “LTIP”) and our 2006 Long-Term Incentive Plan
(the “2006 LTIP”) as of September 30, 2021, at a weighted-average
exercise price of $7.10 per share, 3,847,753 options of which were
exercisable as of such date; |
|
· |
301,212 shares of our Common Stock underlying non-vested
restricted stock units outstanding under our LTIP, not including
restricted stock units that will only vest upon a “Change of
Control,” as defined in our LTIP, as of September 30, 2021; |
|
· |
2,595,784 shares of our Common Stock reserved for future awards
under our LTIP as of September 30, 2021; and |
|
· |
2,724,950 Change of Control restricted stock units, which would
only vest upon a Change of Control to the Company, as defined in
our LTIP. |
RISK FACTORS
An investment in our Common Stock involves a high degree of
risk. Before deciding whether to invest in our Common Stock, you
should carefully consider the risks described below and discussed
under the sections captioned “Risk Factors” contained in our most
recent Annual Report on Form 10-K, as well as in any of our
subsequent Quarterly Reports on Form 10-Q, which are incorporated
by reference herein in their entirety, together with other
information in this prospectus supplement, the information and
documents incorporated by reference in this prospectus supplement,
in the accompanying prospectus and in any free writing prospectus
that we have authorized for use in connection with this offering.
If any of these risks actually occurs, our business, financial
condition, results of operations or cash flow could be seriously
harmed. This could cause the trading price of our Common Stock to
decline, resulting in a loss of all or part of your
investment.
We have broad discretion in the use of the net proceeds of this
offering and, despite our efforts, we may use the proceeds in a
manner that does not improve our operating results or increase the
value of your investment.
We currently anticipate that the net proceeds from the sale of our
Common Stock will be used primarily for general corporate purposes,
including to fund clinical studies in the United States and abroad,
expand production capacity, support our sales and marketing
efforts, further develop our products and for general operating
expenses. However, we have not determined the specific allocation
of the net proceeds among these potential uses. Our management will
have broad discretion over the use and investment of the net
proceeds of this offering, and, accordingly, investors in this
offering will need to rely upon the judgment of our management with
respect to the use of proceeds, with only limited information
concerning our specific intentions. These proceeds could be applied
in ways that do not improve our operating results or increase the
value of your investment. Please see the section entitled “Use of
Proceeds” on page S-11 for further information.
If you purchase Common Stock in this offering, you may
experience immediate dilution. You may also experience dilution as
a result of future issuances of Common Stock or other equity
securities.
Because the prices per share of our Common Stock being offered may
be higher than the book value per share of our Common Stock, you
may suffer immediate substantial dilution in the net tangible book
value of the Common Stock if you purchase in this offering. See the
section entitled “Dilution” on page S-12 for a more detailed
discussion of the dilution you may incur if you purchase Common
Stock in this offering.
In addition, in order to raise additional capital, we may in the
future offer, issue or sell additional shares of Common Stock or
other securities convertible into or exchangeable for shares of our
Common Stock. We cannot assure you that we will be able to sell
shares or other securities in any other transaction at a price per
share or that have an exercise price or conversion price per share
that is equal to or greater than the prices for the Common Stock
purchased by investors in this offering, and investors purchasing
shares or other securities in the future could have rights superior
to existing stockholders. If we sell shares or other securities in
any future transaction at a price per share or that have an
exercise price or conversion price per share that is less than the
price you pay for shares of Common Stock in this offering, you will
experience dilution.
Moreover, if outstanding options are exercised at prices per share
that are less than the price you pay in this offering, or shares of
Common Stock issue upon the vesting of outstanding restricted stock
units, or if we issue options or warrants to purchase, or
securities convertible into or exchangeable for, shares of our
Common Stock in the future at a price per share that is less than
the price you pay in this offering and such options, warrants or
other securities are exercised, converted or exchanged, you will
experience further dilution.
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,
which could impair your ability to sell any shares of Common Stock
that you purchase in this offering at prices above the price you
pay in this offering 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.
The shares of our Common Stock offered hereby will be sold in
“at the market” offerings, and investors who buy shares of our
Common Stock at different times will likely pay different
prices.
Investors who purchase shares of Common Stock in this offering at
different times will likely pay different prices, and so may
experience different levels of dilution and different outcomes in
their investment results. We will have discretion, subject to
market demand, to vary the timing, prices, and numbers of shares of
Common Stock sold in this offering. In addition, subject to the
final determination by our board of directors or a committee
thereof, there is no minimum or maximum sales price for ordinary
shares to be sold in this offering. Investors may experience a
decline in the value of the ordinary shares they purchase in this
offering as a result of sales made at prices lower than the prices
they paid.
USE OF PROCEEDS
We may issue and sell shares of our Common Stock having aggregate
sales proceeds of up to $25,000,000 from time to time. 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.
We currently estimate that we will use the net proceeds from this
offering for general corporate purposes, including to fund clinical
studies in the United States and abroad, expand production
capacity, support our sales and marketing efforts, further develop
our products, and for general operating expenses.
The amounts and timing of our actual expenditures will depend on
numerous factors, including the progress of our clinical trials and
other development efforts and other factors described under “Risk
Factors” beginning on page S-9 in this prospectus supplement and
the documents incorporated by reference herein, as well as the
amount of cash used in our operations. We may find it necessary or
advisable to use the net proceeds for other purposes, and we will
have broad discretion in the application of the net proceeds.
Pending the uses described above, we may invest the net proceeds
from this offering in investment-grade, interest-bearing
securities.
DILUTION
If you invest in our Common Stock, your interest will be diluted to
the extent of the difference between the price per share you pay in
this offering and the net tangible book value per share of our
Common Stock immediately after this offering. Our net tangible book
value of our Common Stock as of September 30, 2021 was
approximately $66.0 million, or approximately $1.52 per share of
Common Stock based upon 43,475,648 shares outstanding. Net tangible
book value per share is equal to our total tangible assets, less
our total liabilities, divided by the total number of shares
outstanding as of September 30, 2021.
After giving effect to the sale of our Common Stock in the
aggregate amount of $25,000,000 at an assumed offering price of
$4.15 per share, the last reported sale price of our Common Stock
on the Nasdaq Capital Market on December 29, 2021, 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 $90.1 million, or $1.82 per
share of Common Stock. This represents an immediate increase in net
tangible book value of $0.30 per share to our existing stockholders
and an immediate dilution in net tangible book value of $2.33 per
share to new investors in this offering. The following table
illustrates this calculation on a per share basis. The as adjusted
information is illustrative only and will adjust based on the
actual prices to the public, the actual number of shares sold and
other terms of the offering determined at the times shares of our
Common Stock are sold pursuant to this prospectus supplement. The
shares of our Common Stock sold in this offering, if any, will be
sold from time to time at various prices.
Assumed
public offering price per share |
|
|
|
|
$ |
4.15 |
|
Net
tangible book value per share as September 30, 2021 |
|
$ |
1.52 |
|
|
|
|
Increase
in net tangible book value per share attributable to the
offering |
|
$ |
0.30 |
|
|
|
|
As
adjusted net tangible book value per share after giving effect to
this offering |
|
|
|
|
$ |
1.82 |
|
Dilution
per share to new investors participating in the
offering |
|
|
|
|
$ |
2.33 |
|
The number of shares of Common Stock to be outstanding after this
offering, as set forth above, is based on 43,475,648 shares of
Common Stock outstanding as of September 30, 2021, which amount
excludes:
|
· |
6,864,854 aggregate shares of our Common Stock issuable upon
the exercise of stock options outstanding under our LTIP and 2006
LTIP as of September 30, 2021, at a weighted-average exercise price
of $7.10 per share, 3,847,753 options of which were exercisable as
of such date; |
|
· |
301,212 shares of our Common Stock underlying non-vested
restricted stock units outstanding under our LTIP, not including
restricted stock units that will only vest upon a “Change of
Control,” as defined in our LTIP, as of September 30, 2021; |
|
· |
2,595,784 shares of our Common Stock reserved for future awards
under our LTIP as of September 30, 2021; and |
|
· |
2,724,950 Change of Control restricted stock units, which would
only vest upon a Change of Control to the Company, as defined in
our LTIP. |
To the extent outstanding warrants or options are exercised at
prices per share that are less than the prices paid by investors in
this offering, or shares of Common Stock issue upon the vesting of
outstanding restricted stock units, there will be further dilution
to investors. In addition, to the extent that we issue additional
equity securities in connection with future capital raising
activities, our then-existing stockholders may experience
dilution.
PLAN OF DISTRIBUTION
We have entered into the Sale Agreement with Jefferies, under which
we may offer and sell our shares of Common Stock from time to time
through Jefferies acting as the agent. Pursuant to this prospectus
supplement and the accompanying prospectus, we may offer and sell
up to $25,000,000 of our shares of Common Stock. Sales of our
shares of Common Stock, if any, under this prospectus supplement
and the accompanying prospectus will be made by any method that is
deemed to be an “at the market offering” as defined in Rule
415(a)(4) under the Securities Act.
Each time we wish to issue and sell our shares of Common Stock
under the Sale Agreement, we will notify Jefferies of the number of
shares to be issued, the dates on which such sales are anticipated
to be made, any limitation on the number of shares to be sold in
any one day and any minimum price below which sales may not be
made. Once we have so notified the Agent, unless the Agent declines
to accept the terms of such notice, the Agent has agreed to use its
commercially reasonable efforts consistent with its normal trading
and sales practices to sell such shares up to the amount specified
on such terms. The obligations of the Agent under the Sale
Agreement to sell our shares of Common Stock are subject to a
number of conditions that we must meet.
The settlement of sales of shares between us and the Agent is
generally anticipated to occur on the second trading day following
the date on which the sale was made. Sales of our shares of Common
Stock as contemplated in this prospectus supplement will be settled
through the facilities of The Depository Trust Company or by such
other means as we and the Agent may agree upon. There is no
arrangement for funds to be received in an escrow, trust or similar
arrangement.
We will pay the Agent a commission equal to 3.0% of the aggregate
gross proceeds we receive from each sale of shares of Common Stock
by the Agent. 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. In addition, we have agreed to reimburse
the Agent for the fees and disbursements of its counsel, payable
upon execution of the Sale Agreement, in an amount not to exceed
$75,000, in addition to certain ongoing disbursements of its legal
counsel unless we and the Agent otherwise agree. We estimate that
the total expenses for the offering, excluding any commissions or
expense reimbursement payable to the Agent under the terms of the
Sale Agreement, will be approximately $175,000. The remaining sale
proceeds, after deducting any other transaction fees, will equal
our net proceeds from the sale of such shares.
The Agent will provide written confirmation to us before the open
on The Nasdaq Capital Market on the day following each day on which
our shares of Common Stock are sold by the Agent under the Sale
Agreement. Each confirmation will include the number of shares sold
on that day, the aggregate gross proceeds of such sales and the
proceeds to us.
In connection with the sale of our shares of Common Stock on our
behalf, the Agent will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation of the Agent
will be deemed to be underwriting commissions or discounts. We have
agreed to indemnify the Agent against certain civil liabilities,
including liabilities under the Securities Act. We have also agreed
to contribute to payments the Agent may be required to make in
respect of such liabilities.
The offering of our shares of common stock pursuant to the Sale
Agreement will terminate as permitted therein. This summary of the
material provisions of the Sale Agreement does not purport to be a
complete statement of its terms and conditions. A copy of the Sale
Agreement will be filed as an exhibit to a current report on Form
8-K filed under the Exchange Act and incorporated by reference in
this prospectus supplement.
Jefferies and its respective affiliates may in the future provide
various investment banking, commercial banking, financial advisory
and other financial services for us and our affiliates, for which
services they may in the future receive customary fees. In the
course of its businesses, Jefferies may actively trade our
securities for its own account or for the accounts of its
customers, and, accordingly, Jefferies may at any time hold long or
short positions in such securities.
A prospectus supplement and the accompanying prospectus in
electronic format may be made available on a website maintained by
Jefferies, and Jefferies may distribute the prospectus supplement
and the accompanying prospectus electronically.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon
by Morgan, Lewis & Bockius LLP, Princeton, New Jersey.
Jefferies LLC is being represented in connection with this offering
by Cooley LLP, New York, New York.
EXPERTS
WithumSmith+Brown, PC, independent registered public accounting
firm, has audited our financial statements included in our Annual Report on Form 10-K for the
year ended December 31, 2020 and the effectiveness of our
internal control over financial reporting as of December 31, 2020,
as set forth in their reports, which are incorporated by reference
in this prospectus supplement and elsewhere in the registration
statement of which this prospectus supplement forms a part. Our
financial statements are incorporated by reference in reliance on
WithumSmith+Brown, PC’s reports, given on their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the internet at the SEC’s website at www.sec.gov.
Copies of certain information filed by us with the SEC are also
available on our website at www.cytosorbents.com. Our website is
not a part of this prospectus supplement and is not incorporated by
reference into this prospectus supplement or the accompanying
prospectus.
This prospectus supplement is only part of a registration statement
we filed with the SEC and therefore omits some information
contained in our registration statement in accordance with the
SEC’s rules and regulations. You should review the information
contained in any exhibits filed to the registration statement for
further information on us and the securities we are offering.
Statements in this prospectus supplement concerning any document we
filed as an exhibit to the registration statement or that we
otherwise filed with the SEC are not intended to be comprehensive
and are qualified by reference to those filings. You should review
the complete document to evaluate these statements.
INCORPORATION BY
REFERENCE
The SEC allows us to incorporate by reference into this prospectus
supplement much of the information we file with the SEC, which
means that we can disclose important information to you by
referring you to those publicly available documents. The
information that we incorporate by reference into this prospectus
supplement is considered to be part of this prospectus supplement.
Because we are incorporating by reference future filings with the
SEC, this prospectus supplement is continually updated and those
future filings may modify or supersede some of the information
included or incorporated in this prospectus supplement. This means
that you must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus
supplement or in any document previously incorporated by reference
have been modified or superseded. This prospectus supplement
incorporates by reference the documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act (in each case, other than those documents
or the portions of those documents deemed to be furnished and not
filed) until the termination of this offering:
|
· |
Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2021, June 30, 2021 and September 30, 2021, as filed with
the SEC on May 4, 2021, August 3, 2021 and November 4, 2021,
respectively; |
|
· |
Current Reports on Form 8-K filed with the SEC on March 17, 2021, March 31, 2021, April 8, 2021, April 15, 2021, April 20, 2021, June 2, 2021 (with respect to
Item 5.07 only), July 6, 2021, July 27, 2021, August 12, 2021, September 1, 2021, September 10, 2021, September 14, 2021, October 8, 2021, October 13, 2021, October 15, 2021, October 21, 2021 and December 21, 2021; and |
We will provide without charge to each person to whom this
prospectus supplement is delivered a copy of any or all of the
information that has been incorporated by reference into but not
delivered with this prospectus supplement. You may request a copy
of these filings by writing or telephoning us at the following
address or telephone number:
7 Deer Park Drive, Suite K
Monmouth Junction, New Jersey 08852
Attn: Kathleen P. Bloch, CFO
Phone: (973) 329-8885
PROSPECTUS

$150,000,000
Common Stock, Preferred Stock,
Debt Securities, Warrants and Units
We may offer from time to time in one or more offerings up to an
aggregate of $150,000,000 of the common stock, preferred stock,
debt securities, warrants or units described in this prospectus,
separately or together in one or more combinations. The preferred
stock, debt securities, and warrants may be convertible into or
exercisable or exchangeable for common stock or preferred stock or
other securities, as identified in the applicable prospectus
supplement.
This prospectus provides a general description of the securities we
may offer. Each time we sell securities, we will provide specific
terms of the securities offered in a supplement to this prospectus.
We may also authorize one or more free writing prospectuses to be
provided to you in connection with these offerings. The prospectus
supplement and any related free writing prospectus may add, update
or change information contained in this prospectus. You should
carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as the
documents incorporated by reference herein and therein, before you
invest in any of our securities. This prospectus may not be used to
sell the securities unless accompanied by a prospectus
supplement.
We may offer and sell the securities through underwriters, dealers
or agents, or directly to purchasers, or through a combination of
these methods. See “Plan of Distribution” beginning on page 18 of
this prospectus.
Our common stock is listed on the Nasdaq Capital Market under the
symbol “CTSO.” The last reported sale price of our common stock on
the Nasdaq Capital Market on July 13, 2021 was $7.70 per share.
Investing in our securities involves risk. See “Risk
Factors” beginning on page 5 of this prospectus. You should
carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as the
documents incorporated by reference herein and therein, before you
invest in any of our securities.
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
,
2021
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have
filed with the Securities and Exchange Commission (the “SEC”) using
a “shelf” registration process under the Securities Act of 1933, as
amended (the “Securities Act”). Under this shelf registration
process, we may offer and sell, from time to time, any combination
of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $150,000,000.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell the securities, we will,
to the extent required by law, provide a prospectus supplement that
will contain specific information about the terms of the offering.
We may also authorize one or more free writing prospectuses to be
provided to you in connection with the offering. The prospectus
supplement and any related free writing prospectus may add, update
or change information contained in this prospectus. This prospectus
does not contain all of the information included in the
registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration
statement, including its exhibits. You should carefully read this
prospectus, the applicable prospectus supplement, and any
applicable free writing prospectus, as well as the information and
documents incorporated herein and therein by reference and the
additional information under the heading “Where You Can Find More
Information,” before making an investment decision.
We have not authorized any dealer, salesman or other person to give
any information or to make any representation other than those
contained in, or incorporated by reference into, this prospectus
and the applicable prospectus supplement, and any free writing
prospectus we have authorized for use in connection with a specific
offering. You must not rely upon any other information or
representation.
This prospectus and any accompanying supplement to this prospectus
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 any accompanying supplement
to this prospectus 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, any accompanying prospectus supplement and any
applicable free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the 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, any accompanying prospectus
supplement or any applicable free writing prospectus is delivered,
or securities sold, on a later date.
This prospectus may not be used by us to consummate sales of our
securities unless it is accompanied by a prospectus supplement. To
the extent there are inconsistencies between any prospectus
supplement, this prospectus and any documents incorporated by
reference, the document with the most recent date will control.
This prospectus includes our trademarks and trade names, such as
“CytoSorb,” “CytoSorb XL,” “ECOS-300CY,” “BetaSorb,”
“ContrastSorb,” “DrugSorb,” “DrugSorb-ATR,” “HemoDefend-RBC,”
“HemoDefend-BGA,“K+ontrol” and “VetResQ,” which are protected under
applicable intellectual property laws and are the property of
CytoSorbents Corporation and its subsidiaries. This prospectus also
contains the trademarks, trade names and service marks of other
companies, which are the property of their respective owners.
Solely for convenience, trademarks, trade names and service marks
referred to in this prospectus may appear without the ™, ®, or SM
symbols, but such references are not intended to indicate, in any
way, that we will not assert, to the fullest extent under
applicable law, our rights or the rights of the applicable licensor
to these trademarks, trade names and service marks. We do not
intend our use or display of other parties’ trademarks, trade names
or service marks to imply, and such use or display should not be
construed to imply, a relationship with, or endorsement or
sponsorship of us by, these other parties.
Unless the context otherwise requires, references in this
prospectus to “we,” “us,” “our,” or the “Company” refer to
CytoSorbents Corporation, a Delaware corporation, and its
subsidiaries.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere
in this prospectus or incorporated by reference into this
prospectus. This summary does not contain all the information that
you should consider before investing in our securities. You should
carefully read this entire prospectus, the applicable prospectus
supplement and any related free writing prospectus, including each
of the documents incorporated herein or therein by reference,
before making an investment decision.
We are a leader in critical care immunotherapy, investigating and
commercializing our CytoSorb blood purification technology to
reduce deadly uncontrolled inflammation in hospitalized patients
around the world, with the goal of preventing or treating multiple
organ failure in life-threatening illnesses and cardiac surgery.
Organ failure is the cause of nearly half of all deaths in the
intensive care unit (“ICU”), with little to improve clinical
outcome. CytoSorb, our flagship product, is approved in the
European Union (“EU”) as a safe and effective extracorporeal
cytokine filter and is designed to reduce the “cytokine storm” that
could otherwise cause massive inflammation, organ failure and death
in common critical illnesses such as sepsis, burn injury, trauma,
lung injury, and pancreatitis. These are conditions where the
mortality is extremely high, yet no effective treatments exist. In
May 2018, we received a label expansion for CytoSorb covering use
of the device for the removal of bilirubin and myoglobin in the
treatment of liver disease and trauma, respectively. In January
2020, we received a further E.U. label expansion for CytoSorb to
remove the anti-platelet agent, ticagrelor, during urgent and
emergent cardiothoracic surgery on cardiopulmonary bypass. In May
2020, we received another E.U. label expansion for CytoSorb to
remove rivaroxaban, a Factor Xa inhibitor, for the same indication.
We believe the current addressable market in the United States for
ticagrelor removal in cardiac surgery is approximately $250 million
based on our current pricing model, assuming FDA approval, that
could expand to $500 million should ticagrelor gain market share as
the only reversible mainstream anti-platelet agent. In the event
that CytoSorb also obtains FDA approval to remove novel oral
anticoagulants (“NOACs”) such as rivaroxaban and apixaban, we
believe the total addressable market in the United States for
ticagrelor and NOAC removal during cardiac surgery could
potentially increase to approximately $1.0 billion. In the event
that CytoSorb obtains FDA approval to be used prophylactically to
remove ticagrelor and NOACs in all patients undergoing surgery, we
believe it would potentially expand the total addressable market in
the United States to approximately $2.0 billion.
CytoSorb is used during and after cardiac surgery to remove
inflammatory mediators, such as cytokines, activated complement,
and free hemoglobin that can lead to post-operative complications
such as acute kidney injury, lung injury, shock, and stroke. We
believe CytoSorb has the potential to be used in many other
inflammatory conditions, including the treatment of autoimmune
disease flares, cytokine release syndrome in cancer immunotherapy,
and other applications in cancer, such as cancer cachexia. CytoSorb
has been used globally in more than 131,000 human treatments to
date in critical illnesses and in cardiac surgery. CytoSorb has
received CE-Mark label expansions for the removal of bilirubin
(liver disease), myoglobin (trauma) and both ticagrelor and
rivaroxaban during cardiothoracic surgery. CytoSorb has also
received FDA Emergency Use Authorization in the United States for
use in critically-ill COVID-19 patients with imminent or confirmed
respiratory failure, in defined circumstances. The EUA will be
effective until a declaration is made that the circumstances
justifying the EUA have terminated or until revoked by the FDA.
CytoSorb has been used globally in more than 6,000 human treatments
to date in COVID-19 patients. CytoSorb has also been granted FDA
Breakthrough Designation for the removal of ticagrelor in a
cardiopulmonary bypass circuit during emergent and urgent
cardiothoracic surgery.
Our purification technologies are based on biocompatible, highly
porous polymer beads that can actively remove toxic substances from
blood and other bodily fluids by pore capture and surface
adsorption. The technology is protected by 16 issued U.S. patents
and multiple international patents, with applications pending both
in the U.S. and internationally. In October 2020, we announced the
E.U. approval of the ECOS-300CY™ adsorption cartridge for use with
ex vivo organ perfusion systems to remove cytokines and
other inflammatory mediators in the organ perfusate, with the goal
of improving solid organ support or rehabilitation. We have
numerous other product candidates under development based upon this
unique blood purification technology, including CytoSorb XL,
K+ontrol, HemoDefend-RBC, HemoDefend-BGA, ContrastSorb, DrugSorb,
DrugSorb-ATR and others.
In March 2011, CytoSorb was “CE Marked” in the E.U. as an
extracorporeal cytokine filter indicated for use in clinical
situations where cytokines are elevated, allowing for commercial
marketing. The CE Mark demonstrates that a conformity assessment
has been carried out and the product complies with the Medical
Devices Directive. The goal of CytoSorb is to prevent or treat
organ failure by reducing cytokine storm and the potentially deadly
systemic inflammatory response syndrome (“SIRS”) in diseases such
as sepsis, trauma, burn injury, acute respiratory distress
syndrome, pancreatitis, liver failure, and many others. Organ
failure is the leading cause of death in the ICU, and remains a
major unmet medical need, with little more than supportive care
therapy (e.g., mechanical ventilation, dialysis, vasopressors,
fluid support, etc.) as treatment options. By potentially
preventing or treating organ failure, CytoSorb may improve clinical
outcome, including survival, while reducing the need for costly ICU
treatment, thereby potentially saving significant healthcare
costs.
The market focus for CytoSorb is the prevention or treatment of
organ failure in life-threatening conditions, including commonly
seen illnesses in the ICU such as infection and sepsis, trauma,
burn injury, acute respiratory distress syndrome (“ARDS”), and
others. Severe sepsis and septic shock, a potentially
life-threatening systemic inflammatory response to a serious
infection, accounts for approximately 10% to 20% of all ICU
admissions, and is responsible for an estimated one in every five
deaths worldwide. Sepsis is one of the largest target markets for
CytoSorb. Sepsis is a major unmet medical need with no approved
products in the U.S. or Europe to treat it. As with other critical
care illnesses, multiple organ failure is the primary cause of
death in sepsis. When used with standard of care therapy, that
includes antibiotics, the goal of CytoSorb in sepsis is to reduce
excessive levels of cytokines and other inflammatory toxins, to
help reduce the SIRS response and either prevent or treat organ
failure.
In addition to the sepsis indication, we intend to conduct or
support additional clinical studies in sepsis, cardiac surgery, and
other critical care diseases where CytoSorb could be used, such as
ARDS, liver disease, trauma, severe burn injury, acute
pancreatitis, and in other acute conditions that may benefit by the
reduction of cytokines in the bloodstream. Some examples include
the prevention of post-operative complications of cardiac surgery
(cardiopulmonary bypass surgery) and damage to organs donated for
transplant prior to organ harvest. We intend to generate additional
clinical data to expand the scope of clinical experience for
marketing purposes, to increase the number of treated patients, and
to support potential future publications and regulatory
submissions.
Our proprietary polymer technologies form the basis of a broad
technology portfolio. Some of our products and product candidates
include:
|
• |
CytoSorb — an extracorporeal
hemoperfusion cartridge approved in the EU for cytokine removal,
with the goal of reducing SIRS and sepsis and preventing or
treating organ failure. |
|
• |
DrugSorb-ATR — an investigational
extracorporeal antithrombotic removal system based on the same
polymer technology as CytoSorb that is being evaluated in the U.S.
STAR-T pivotal randomized, controlled trial to reduce the
antithrombotic drug, ticagrelor, and reduce bleeding complications
in patients undergoing cardiothoracic surgery while on the
drug. |
|
• |
ECOS-300CY — an adsorption
cartridge approved in the E.U. for use with ex vivo organ
perfusion systems to remove cytokines and other inflammatory
mediators in the organ perfusate, with the goal of improving solid
organ support or rehabilitation. |
|
• |
CytoSorb XL — an intended next
generation successor to CytoSorb currently in advanced pre-clinical
testing designed to reduce a broad range of cytokines and
inflammatory mediators, including lipopolysaccharide endotoxin,
from blood. |
|
• |
VetResQ — a broad spectrum blood
purification adsorber designed to help treat deadly inflammation
and toxic injury in animals with critical illnesses such as septic
shock, toxic shock syndrome, severe systemic inflammation,
toxin-mediated diseases, pancreatitis, trauma, liver failure, and
drug intoxication. VetResQ is being commercialized in the United
States. |
|
• |
HemoDefend-RBC—a development-stage
blood purification technology designed to remove non-infectious
contaminants in blood transfusion products, with the goal of
reducing transfusion reactions and improving the quality and safety
of blood. |
|
• |
HemoDefend-BGA—a development-stage
purification technology that can remove anti-A and anti-B
antibodies from plasma and whole blood, to enable “universal
plasma,” and safer whole blood transfusions, respectively. |
|
• |
K+ontrol—a development-stage blood
purification technology designed to reduce excessive levels of
potassium in the blood that can be fatal in severe
hyperkalemia. |
|
• |
ContrastSorb—a development-stage
extracorporeal hemoperfusion cartridge designed to remove IV
contrast from the blood of high-risk patients undergoing
radiological imaging with contrast, or interventional radiology
procedures such as cardiac catheterization and angioplasty. The
goal of ContrastSorb is to prevent contrast-induced
nephropathy. |
|
• |
DrugSorb—a development-stage
extracorporeal hemoperfusion cartridge designed to remove toxic
chemicals from the blood (e.g., drug overdose, high dose regional
chemotherapy). |
|
• |
BetaSorb—a development-stage
extracorporeal hemoperfusion cartridge designed to remove
mid-molecular weight toxins, such as b2-microglobulin, that
standard high-flux dialysis cannot remove effectively. The goal of
BetaSorb is to improve the efficacy of dialysis or
hemofiltration. |
Corporate History
We were originally organized as a Delaware limited liability
company in August 1997 as Advanced Renal
Technologies, LLC. We changed our name to RenalTech
International, LLC in November 1998, and to MedaSorb
Technologies, LLC in October 2003. In December 2005,
MedaSorb Technologies, LLC converted from a limited liability
company to a corporation, called MedaSorb Technologies, Inc.
CytoSorbents Corporation was incorporated in Nevada on
April 25, 2002 as Gilder Enterprises, Inc., and was
originally engaged in the business of installing and operating
computer networks that provided high-speed access to the Internet.
On June 30, 2006, we disposed of our original business, and
pursuant to an Agreement and Plan of Merger, acquired all of the
stock of MedaSorb Technologies, Inc., in a merger, and the
business of MedaSorb Technologies, Inc. became our business.
Following the merger, in July 2006, we changed our name to
MedaSorb Technologies Corporation. In November 2008, we
changed the name of our operating subsidiary from MedaSorb
Technologies, Inc. to CytoSorbents, Inc. In
May 2010, we finalized the name change of MedaSorb
Technologies Corporation to CytoSorbents Corporation. On
October 28, 2014, we changed the name of our operating
subsidiary from CytoSorbents, Inc. to CytoSorbents
Medical, Inc.
On December 3, 2014, we effected a twenty-five-for-one (25:1)
reverse split of our common stock. As a result of this reverse
stock split, shares of our common stock outstanding were reduced by
approximately 96%. Immediately after the reverse stock split,
pursuant to an Agreement and Plan of Merger dated December 3,
2014, we changed our state of incorporation from the State of
Nevada to the State of Delaware, whereby we merged with and into
our wholly-owned Delaware subsidiary. At the effective time of the
merger, (i) we merged with and into our Delaware subsidiary,
(ii) our separate corporate existence in Nevada ceased to
exist, (iii) the Delaware subsidiary became the surviving
corporation, (iv) the certificate of incorporation, as amended
and restated, and the bylaws of the Delaware subsidiary became our
certificate of incorporation and bylaws, and (v) each share of
our common stock outstanding immediately prior to the effective
time was converted into one fully-paid and non-assessable share of
our common stock as a Delaware corporation. The reverse stock
split, the merger and the Agreement and Plan of Merger were
approved by our Board of Directors and stockholders representing a
majority of our then-outstanding common stock. All references to
“us”, “we”, or the Company, on or after December 3, 2014,
refer to CytoSorbents Corporation, a Delaware corporation.
Our executive offices are located at 7 Deer Park Drive, Suite K,
Monmouth Junction, New Jersey 08852, and our telephone number is
(732) 329-8885. Our website address is http://www.cytosorbents.com.
We have included our website address as an inactive textual
reference only. We are not including the information contained at
http://www.cytosorbents.com, or at any other website address, as
part of, or incorporating it by reference into, this prospectus or
any accompanying prospectus supplement or related free writing
prospectus. We make available free of charge through our website
our Annual Reports on Form 10-K, our Quarterly Reports on Form
10-Q, our Current Reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of
the Securities and Exchange Act of 1934, as amended (the “Exchange
Act”), as soon as reasonably practicable after we electronically
file such material, or furnish it to the SEC. We also similarly
make available, free of charge on our website, the reports filed
with the SEC by our executive officers, directors and 10%
stockholders pursuant to Section 16 under the Exchange Act as soon
as reasonably practicable after copies of those filings are
provided to us by those persons.
RISK FACTORS
Investing in our securities
involves risks. Before making an investment decision, you should
carefully consider these risks as well as other information we
include or incorporate by reference in this prospectus. In
particular, you should carefully consider the information under the
heading “Risk Factors,” as well as the factors listed under the
heading “Special Note Regarding Forward-Looking Statements,” in
each case contained in our Annual Report on Form 10-K for our most
recent fiscal year, in any Quarterly Reports on Form 10-Q that have
been filed since our most recent Annual Report on Form 10-K and in
any other documents that we file with the SEC under the Exchange
Act, each of which is incorporated by reference in this prospectus.
New risks may emerge in the future at any time, and we cannot
predict such risks or estimate the extent to which they may affect
our financial condition or performance. The prospectus supplement
applicable to a specific offering may contain a discussion of
additional risks applicable to an investment in us and our
securities we are offering under that prospectus supplement. Each
of the risks described could result in a decrease in the value of
the securities and your investment therein.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement or related
free writing prospectus, and the documents incorporated by
reference herein and therein may contain “forward-looking
statements” within the meaning of the safe harbor provisions of
Section 27A of the Securities Act of 1933, as amended, Section 21E
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the Private Securities Litigation Reform Act of 1995.
These forward-looking statements only provide our current
expectations or forecasts of future events and financial
performance and may be identified by the use of forward-looking
terminology, including the terms “believes,” “estimates,”
“anticipates,” “expects,” “plans,” “intends,” “may,” “will,”
“should,” “could,” “predicts,” or the negative thereof, or other
variations or comparable terminology, though the absence of these
words does not necessarily mean that a statement is not
forward-looking. Forward-looking statements include all matters
that are not historical facts and include, without limitation,
statements concerning possible or assumed future results of our
operations; business strategies; future cash flows; financing
plans; plans and objectives of management; any other statements
regarding future operations, future cash needs, business plans and
future financial results, and any other statements that are not
historical facts. You should be aware that the forward-looking
statements included herein represent management’s current judgment
and expectations, but our actual results, events and performance
could differ materially from those in the forward-looking
statements.
You should read carefully the risks described in the section
entitled “Risk Factors” beginning on page 5 of this prospectus and
those contained in our Annual Report on Form 10-K for our most
recent fiscal year, in any Quarterly Reports on Form 10-Q that have
been filed since our most recent Annual Report on Form 10-K and in
any other documents that we file with the SEC under the Exchange
Act, each of which is incorporated by reference in this prospectus.
and in any accompanying prospectus supplement or related free
writing prospectus, together with all information incorporated by
reference herein and therein, to better understand the significant
risks and uncertainties inherent in our business and underlying any
forward-looking statements. As a result of these risks, actual
results could differ materially and adversely from those
anticipated or implied in the forward-looking statements in this
prospectus or in any accompanying prospectus supplement or related
free writing prospectus, or incorporated by reference herein and
therein, and you should not place undue reliance on any
forward-looking statements.
Any forward-looking statements that we make in this prospectus
speak only as of the date of such statements and we undertake no
obligation to publicly update any forward-looking statements or to
publicly announce revisions to any of the forward-looking
statements, whether as a result of new information, future events
or otherwise.
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, we
anticipate that the net proceeds from the sale of our securities
will be used for general corporate purposes, including to fund
clinical studies in the United States and abroad, expand production
capacity, support our sales and marketing efforts and further
develop our products, and we will retain broad discretion with
respect to the allocation thereof.
Our preexisting shelf registration statement expires in August
2021. We believe it is good corporate practice to have an effective
shelf registration statement on file with the SEC to preserve the
flexibility to raise capital if and when needed. Although we
currently have no specific plans to raise money at the time of
filing this registration statement, if we choose to conduct a
financing using this registration statement in the future, the
specific purposes for the proceeds of such financing will be
described in the prospectus supplement relating to the
financing.
DESCRIPTION OF THE SECURITIES WE
MAY OFFER
The descriptions of the securities contained in this prospectus
summarize the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable
prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement. If
we so indicate in the applicable prospectus supplement, the terms
of the securities may differ from the terms we have summarized
below. We will also include in the prospectus supplement
information, where applicable, about material U.S. federal income
tax considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed. In this
prospectus, we refer to the common stock, preferred stock, debt
securities, warrants or units, or any combination of the foregoing
securities to be sold by us in a primary offering collectively as
“securities.”
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock,
together with the additional information we include in the
applicable prospectus supplement, summarizes the material terms and
provisions of the common stock and preferred stock that we may
offer under this prospectus. It may not contain all the information
that is important to you. For the complete terms of our common
stock and preferred stock, please refer to our Second Amended and
Restated Certificate of Incorporation (“Certificate of
Incorporation”) and Bylaws, which are incorporated by reference
into the registration statement which includes this prospectus. The
Delaware General Corporation Law, or the DGCL, may also affect the
terms of these securities.
General
The total number of shares of capital stock that we have authority
to issue is 105,000,000, consisting of (i) 100,000,000 shares of
common stock, $0.001 par value per share, and (ii) 5,000,000 shares
of preferred stock, par value per share $0.001. The outstanding
shares of our Common Stock are fully paid and nonassessable.
Common Stock
Voting. For all matters submitted to a vote of stockholders,
each holder of our Common Stock is entitled to one vote for each
share registered in such holder’s name. Except as may be required
by law and in connection with some significant actions, such as
mergers, consolidations, or amendments to our Certificate of
Incorporation that affect the rights of stockholders, holders of
our Common Stock vote together as a single class. Generally, the
election of members of our Board of Directors (the “Board”) is
determined by the vote of the majority of the votes cast by
stockholders with respect to that director’s election. However, in
a Contested Election (as defined in our Bylaws), directors of the
Board are elected by a plurality of the votes cast by the
stockholders entitled to vote (and not by majority vote).
Dividends. Subject to preferential dividend rights of any
then outstanding preferred stock, the holders of Common Stock are
entitled to receive dividends, as and when declared by our
Board.
Liquidation. In the event we are liquidated, dissolved or
our affairs are wound up, after we pay or make adequate provision
for all of our known debts and liabilities, each holder of our
Common Stock will be entitled to receive all of our assets
available for distribution to our stockholders, subject to any
preferential or other rights of any then outstanding preferred
stock.
Other Rights and Restrictions. Subject to the preferential
rights of any other class or series of stock, all shares of our
Common Stock have equal dividend, distribution, liquidation and
other rights, and have no preference, appraisal or exchange rights,
except for any appraisal rights provided by Delaware law.
Furthermore, holders of our Common Stock have no conversion,
sinking fund or redemption rights, or preemptive rights to
subscribe for any of our securities. Our Certificate of
Incorporation and Bylaws do not restrict the ability of a holder of
our Common Stock to transfer such holder’s shares of our Common
Stock.
The rights, powers, preferences and privileges of holders of our
Common Stock are subject to, and may be adversely affected by, the
rights of holders of shares of any series of preferred stock which
we may designate and issue in the future.
Listing. Our common stock is listed on the Nasdaq Capital
Market under the symbol “CTSO.”
Transfer Agent and Registrar. The transfer agent for our
common stock is American Stock Transfer & Trust Company,
LLC.
Preferred Stock
Under our Certificate of Incorporation, we have the authority to
issue preferred stock from time to time in one or more series, with
such distinctive serial designations as shall be stated and
expressed in the resolution or resolutions providing for the issue
of such shares from time to time adopted by our Board. The
resolutions of the Board providing for the issue of shares of each
particular series of preferred stock may fix the annual rate or
rates for dividends for the particular series, the dividend payment
dates for the particular series and the date from which dividends
on all shares of such series issued prior to the record date for
the first dividend payment date shall be cumulative, the redemption
price or prices for the particular series, the rights, if any, of
holders of the shares of the particular series to convert the same
into shares of any other series or other securities of the Company
or of any other corporation, with any provisions for the subsequent
adjustment of such conversion rights, and to classify or reclassify
any unissued preferred stock by fixing or altering from time to
time any of the foregoing rights, privileges and
qualifications.
All of the preferred stock of any one series shall be identical
with each other in all respects, except that shares of any one
series issued at different times may differ as to the dates from
which dividends thereon shall be cumulative; and all preferred
stock shall be of equal rank, regardless of series, and shall be
identical in all respects except as to the particulars fixed by the
Board as provided in the Certificate of Incorporation. When we
issue shares of our preferred stock, the shares will be fully paid
and nonassessable and, unless specified in the applicable
prospectus supplement, will not have or be subject to any rights of
first refusal or similar rights.
The DGCL provides that the holders of preferred stock will have the
right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of that preferred
stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
Certain Effects of Authorized but Unissued Stock
We have shares of common stock and preferred stock available for
future issuance without stockholder approval. We may issue these
additional shares for a variety of corporate purposes, including
future public offerings to raise additional capital or facilitate
corporate acquisitions or for payment as a dividend on our capital
stock. The existence of unissued and unreserved common stock and
preferred stock may enable our Board of Directors to issue shares
to persons friendly to current management or to issue preferred
stock with terms that could render more difficult or discourage a
third-party attempt to obtain control of us by means of a merger,
tender offer, proxy contest or otherwise, thereby protecting the
continuity of our management. In addition, if we issue preferred
stock, the issuance could adversely affect the voting power of
holders of common stock and the likelihood that such holders will
receive dividend payments and payments upon liquidation.
Delaware Law and Certificate of Incorporation and Bylaws
Provisions
Board of Directors. Our Bylaws provide that:
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subject to the rights of the
holders of any series of preferred stock then outstanding, any
directors, or the entire Board of Directors, may be removed from
office at any time, with or without cause, by the affirmative vote
of the holders of a majority of the voting power of all of the
outstanding shares of capital stock entitled to vote generally in
the election of directors, voting together as a single class;
and |
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vacancies in the Board of Directors
resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the sole
remaining director. Directors so chosen shall hold office until the
next annual meeting of stockholders at which the term of office of
the class to which they have been elected expires. |
These provisions could discourage, delay or prevent a change in
control of our company or an acquisition of our company at a price
which many stockholders may find attractive. The existence of these
provisions could limit the price that investors might be willing to
pay in the future for shares of our common stock. These provisions
may also have the effect of discouraging a third party from
initiating a proxy contest, making a tender offer or attempting to
change the composition or policies of our Board of Directors.
Stockholder Action; Special Meeting of Stockholders. Our
Certificate of Incorporation and Bylaws also provide that:
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stockholder action may be taken
only at a duly called and convened annual or special meeting of
stockholders and then only if properly brought before the
meeting; |
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stockholder action may not be taken
by written action in lieu of a meeting; |
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special meetings of stockholders
may be called only by our Board, the Chairman of our Board or by
our Chief Executive Officer; and |
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in order for any matter to be
considered “properly brought” before a meeting, a stockholder must
comply with requirements regarding specified information and
advance notice to us. |
These provisions could delay, until the next stockholders’ meeting,
actions which are favored by the holders of a majority of our
outstanding voting securities. These provisions may also discourage
another person or entity from making a tender offer for our common
stock, because a person or entity, even if it acquired a majority
of our outstanding voting securities, would be able to take action
as a stockholder only at a duly called stockholders’ meeting, and
not by written consent.
Indemnification. Our Certificate of Incorporation provides
that we shall, to the fullest extent permitted by, and in
accordance with the provisions of, the DGCL, indemnify each of our
directors or officers or employees against expenses (including
attorneys’ fees), judgments, taxes, fines and amounts paid in
settlement, incurred by him in connection with, and shall advance
expenses (including attorneys’ fees) incurred by him in defending,
any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) to which
such director, officer or employee is, or is threatened to be made,
a party by reason of the fact that such director, officer or
employee is or was a director or officer or employee of ours, or is
or was serving at the request of us as a director, officer,
partner, employee or agent of another domestic or foreign
corporation, partnership, joint venture, trust or other enterprise.
Advancement of expenses shall be made upon receipt of an
undertaking, with such security, if any, as the Board of Directors
or stockholders may reasonably require, by or on behalf of the
person seeking indemnification to repay amounts advanced if it
shall ultimately be determined that he or she is not entitled to be
indemnified by us as authorized therein.
Delaware Anti-Takeover Law
We are subject to the provisions of Section 203 of the DGCL.
Section 203 prohibits publicly held Delaware corporations from
engaging in a “business combination” with an “interested
stockholder” for a period of three years after the date of the
transaction in which the person became an interested stockholder,
unless the business combination is approved in a prescribed manner.
A “business combination” includes mergers, asset sales and other
transactions resulting in a financial benefit to the interested
stockholder. Subject to certain exceptions, an “interested
stockholder” is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation’s voting stock. These provisions could have the effect
of delaying, deferring or preventing a change of control of our
company or reducing the price that certain investors might be
willing to pay in the future for shares of our stock.
DESCRIPTION OF DEBT
SECURITIES
We may issue from time to time, in one or more offerings, senior or
subordinated debt securities covered by this prospectus. When we
offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this
prospectus.
The debt securities will be issued under an indenture between us
and a trustee, as it may be amended and supplemented from time to
time. The form of the indenture is filed as an exhibit to the
registration statement of which this prospectus is a part. You
should read the indenture for provisions that may be important to
you.
DESCRIPTION OF WARRANTS
Please note that in this section references to holders mean those
who own warrants registered in their own names, on the books that
we or our agent maintain for this purpose, and not those who own
beneficial interests in warrants registered in street name or in
warrants issued in book-entry form through one or more
depositaries. Owners of beneficial interests in the warrants should
read the section below entitled “Book-Entry Procedures and
Settlement”.
General
We may offer warrants separately or together with our debt or
equity securities.
We may issue warrants in such amounts or in as many distinct series
as we wish. This section summarizes terms of the warrants that
apply generally to all series. Most of the financial and other
specific terms of your warrant will be described in the prospectus
supplement. Those terms may vary from the terms described here.
The warrants of a series will be issued under a separate warrant
agreement to be entered into between us and one or more banks or
trust companies, as warrant agent, as set forth in the prospectus
supplement. A form of each warrant agreement, including a form of
warrant certificate representing each warrant, reflecting the
particular terms and provisions of a series of offered warrants,
will be filed with the SEC at the time of the offering and
incorporated by reference in the registration statement of which
this prospectus forms a part. You can obtain a copy of any form of
warrant agreement when it has been filed by following the
directions outlined in “Where You Can Find More Information;
Incorporation of Documents by Reference” or by contacting the
applicable warrant agent.
The following briefly summarizes the material provisions of the
warrant agreements and the warrants. As you read this section,
please remember that the specific terms of your warrant as
described in the prospectus supplement will supplement and, if
applicable, may modify or replace the general terms described in
this section. You should read carefully the prospectus supplement
and the more detailed provisions of the warrant agreement and the
warrant certificate, including the defined terms, for provisions
that may be important to you. If there are differences between the
prospectus supplement and this prospectus, the prospectus
supplement will control. Thus, the statements made in this section
may not apply to your warrant.
Types of Warrants
We may issue debt warrants or equity warrants. A debt warrant is a
warrant for the purchase of our debt securities on terms to be
determined at the time of sale. An equity warrant is a warrant for
the purchase or sale of our equity securities. We may also issue
warrants for the purchase or sale of, or whose cash value is
determined by reference to the performance, level or value of, one
or more of the following: securities of one or more issuers,
including those issued by us and described in this prospectus or
debt or equity securities issued by third parties; a currency or
currencies; a commodity or commodities; and other financial,
economic or other measure or instrument, including the occurrence
or non-occurrence of any event or circumstances, or one or more
indices or baskets of these items.
Information in the Prospectus Supplement
The prospectus supplement will contain, where applicable, the
following information about the warrants:
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the specific designation and
aggregate number of, and the price at which we will issue, the
warrants; |
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the currency or currency unit with
which the warrants may be purchased and in which any payments due
to or from the holder upon exercise must be made; |
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the date on which the right to
exercise the warrants will begin and the date on which that right
will expire or, if you may not continuously exercise the warrants
throughout that period, the specific date or dates on which you may
exercise the warrants; |
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whether the exercise price may be
paid in cash, by the exchange of warrants or other securities or
both, and the method of exercising the warrants; |
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whether the warrants will be
settled by delivery of the underlying securities or other property
or in cash; |
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whether and under what
circumstances we may cancel the warrants prior to their expiration
date, in which case the holders will be entitled to receive only
the applicable cancellation amount, which may be either a fixed
amount or an amount that varies during the term of the warrants in
accordance with a schedule or formula; |
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whether the warrants will be issued
in global or non-global form; |
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the identities of the warrant
agent, any depositaries and any paying, transfer, calculation or
other agents for the warrants; |
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any securities exchange or
quotation system on which the warrants or any securities
deliverable upon exercise of the warrants may be listed; |
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whether the warrants are to be sold
separately or with other securities, and if the warrants are to be
sold with the securities of another company or other companies,
certain information regarding such company or companies; and |
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any other terms of the
warrants. |
No holder of a warrant will, as such, have any rights of a holder
of the debt securities, equity securities or other warrant property
purchasable under or in the warrant, including any right to receive
payment thereunder.
Additional Information in the Prospectus Supplement for Debt
Warrants
In the case of debt warrants, the prospectus supplement will
contain, where appropriate, the following additional
information:
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the designation, aggregate
principal amount, currency and terms of the debt securities that
may be purchased upon exercise of the debt warrants; and |
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the designation, terms and amount
of debt securities, if any, to be issued together with each of the
debt warrants and the date, if any, after which the debt warrants
and debt securities will be separately transferable. |
No Limit on Issuance of Warrants
The warrant agreements will not limit the number of warrants or
other securities that we may issue, except for the limitation of
the number of shares authorized.
Modifications
We and the relevant warrant agent may, without the consent of the
holders, amend each warrant agreement and the terms of each issue
of warrants, for the purpose of curing any ambiguity or of
correcting or supplementing any defective or inconsistent
provision, or in any other manner that we may deem necessary or
desirable and that will not adversely affect the interests of the
holders of the outstanding unexercised warrants in any material
respect.
We and the relevant warrant agent also may, with the consent of the
holders of at least a majority in number of the outstanding
unexercised warrants affected, modify or amend the warrant
agreement and the terms of the warrants. No such modification or
amendment may, without the consent of each holder of an affected
warrant:
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reduce the amount receivable upon
exercise, cancellation or expiration; |
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shorten the period of time during
which the warrants may be exercised; |
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otherwise materially and adversely
affect the exercise rights of the beneficial owners of the
warrants; or |
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reduce the percentage of
outstanding warrants whose holders must consent to modification or
amendment of the applicable warrant agreement or the terms of the
warrants. |
Warrant Agreements Will Not Be Qualified under Trust Indenture
Act
No warrant agreement will be qualified as an indenture, and no
warrant agent will be required to qualify as a trustee, under the
Trust Indenture Act. Therefore, holders of warrants issued under a
warrant agreement will not have the protection of the Trust
Indenture Act with respect to their warrants.
Enforceability of Rights by Beneficial Owner
Each warrant agent will act solely as our agent in connection with
the issuance and exercise of the applicable warrants and will not
assume any obligation or relationship of agency or trust for or
with any registered holder of or owner of a beneficial interest in
any warrant. A warrant agent will have no duty or responsibility in
case of any default by us under the applicable warrant agreement or
warrant certificate, including any duty or responsibility to
initiate any proceedings at law or otherwise or to make any demand
upon us.
Holders may, without the consent of the applicable warrant agent,
enforce by appropriate legal action, on their own behalf, their
right to exercise their warrants, to receive debt securities, in
the case of debt warrants, and to receive payment, if any, for
their warrants, in the case of universal warrants.
Governing Law
Unless otherwise stated in the prospectus supplement, the warrants
and each warrant agreement will be governed by Delaware law.
DESCRIPTION OF UNITS
We may issue units comprised of shares of common stock, shares of
preferred stock, debt securities and warrants in any combination.
We may issue units in such amounts and in as many distinct series
as we wish. This section outlines certain provisions of the units
that we may issue. If we issue units, they will be issued under one
or more unit agreements to be entered into between us and a bank or
other financial institution, as unit agent. The information
described in this section may not be complete in all respects and
is qualified entirely by reference to the unit agreement with
respect to the units of any particular series. The specific terms
of any series of units offered will be described in the applicable
prospectus supplement. If so described in a particular supplement,
the specific terms of any series of units may differ from the
general description of terms presented below. We urge you to read
any prospectus supplement related to any series of units we may
offer, as well as the complete unit agreement and unit certificate
that contain the terms of the units. If we issue units, forms of
unit agreements and unit certificates relating to such units will
be incorporated by reference as exhibits to the registration
statement, which includes this prospectus.
Each unit that we may issue 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. The applicable prospectus
supplement may describe:
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the designation and terms of the
units and of the securities comprising the units, including whether
and under what circumstances those securities may be held or
transferred separately; |
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any provisions of the governing
unit agreement; |
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the price or prices at which such
units will be issued; |
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the applicable United States
federal income tax considerations relating to the units; |
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any provisions for the issuance,
payment, settlement, transfer or exchange of the units or of the
securities comprising the units; and |
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any other terms of the units and of
the securities comprising the units. |
The provisions described in this section, as well as those
described under “Description of Capital Stock,” “Description of
Debt Securities” and “Description of Warrants” will apply to the
securities included in each unit, to the extent relevant and as may
be updated in any prospectus supplements.
Issuance in Series
We may issue units in such amounts and in as many distinct series
as we wish. This section summarizes terms of the units that apply
generally to all series. Most of the financial and other specific
terms of your series will be described in the applicable prospectus
supplement.
Unit Agreements
We will issue the units under one or more unit agreements to be
entered into between us and a bank or other financial institution,
as unit agent. We may add, replace or terminate unit agents from
time to time. We will identify the unit agreement under which each
series of units will be issued and the unit agent under that
agreement in the applicable prospectus supplement.
The following provisions will generally apply to all unit
agreements unless otherwise stated in the applicable prospectus
supplement:
Modification without Consent
We and the applicable unit agent may amend any unit or unit
agreement without the consent of any holder:
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to cure any ambiguity; any
provisions of the governing unit agreement that differ from those
described below; |
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to correct or supplement any
defective or inconsistent provision; or |
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to make any other change that we
believe is necessary or desirable and will not adversely affect the
interests of the affected holders in any material respect. |
We do not need any approval to make changes that affect only units
to be issued after the changes take effect. We may also make
changes that do not adversely affect a particular unit in any
material respect, even if they adversely affect other units in a
material respect. In those cases, we do not need to obtain the
approval of the holder of the unaffected unit; we need only obtain
any required approvals from the holders of the affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with
respect to any particular unit unless we obtain the consent of the
holder of that unit, if the amendment would:
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impair any right of the holder to
exercise or enforce any right under a security included in the unit
if the terms of that security require the consent of the holder to
any changes that would impair the exercise or enforcement of that
right; or |
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reduce the percentage of
outstanding units or any series or class the consent of whose
holders is required to amend that series or class, or the
applicable unit agreement with respect to that series or class, as
described below. |
Any other change to a particular unit agreement and the units
issued under that agreement would require the following
approval:
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If the change affects only the
units of a particular series issued under that agreement, the
change must be approved by the holders of a majority of the
outstanding units of that series; or |
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If the change affects the units of
more than one series issued under that agreement, it must be
approved by the holders of a majority of all outstanding units of
all series affected by the change, with the units of all the
affected series voting together as one class for this purpose. |
These provisions regarding changes with majority approval also
apply to changes affecting any securities issued under a unit
agreement, as the governing document. In each case, the required
approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture Act
No unit agreement will be qualified as an indenture, and no unit
agent will be required to qualify as a trustee, under the Trust
Indenture Act. Therefore, holders of units issued under unit
agreements will not have the protections of the Trust Indenture Act
with respect to their units.
Governing Law
The unit agreements and the units will be governed by Delaware
law.
Form, Exchange and Transfer
We will issue each unit in global—i.e., book-entry—form only. Units
in book-entry form will be represented by a global security
registered in the name of a depositary, which will be the holder of
all the units represented by the global security. Those who own
beneficial interests in a unit will do so through participants in
the depositary’s system, and the rights of these indirect owners
will be governed solely by the applicable procedures of the
depositary and its participants. We will describe book-entry
securities, and other terms regarding the issuance and registration
of the units in the applicable prospectus supplement.
Each unit and all securities comprising the unit will be issued in
the same form.
If we issue any units in registered, non-global form, the following
will apply to them.
The units will be issued in the denominations stated in the
applicable prospectus supplement. Holders may exchange their units
for units of smaller denominations or combined into fewer units of
larger denominations, as long as the total amount is not
changed.
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Holders may exchange or transfer
their units at the office of the unit agent. Holders may also
replace lost, stolen, destroyed or mutilated units at that office.
We may appoint another entity to perform these functions or perform
them ourselves. |
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Holders will not be required to pay
a service charge to transfer or exchange their units, but they may
be required to pay for any tax or other governmental charge
associated with the transfer or exchange. The transfer or exchange,
and any replacement, will be made only if our transfer agent is
satisfied with the holder’s proof of legal ownership. The transfer
agent may also require an indemnity before replacing any units |
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If we have the right to
redeem, accelerate or settle any units before their maturity, and
we exercise our right as to less than all those units or other
securities, we may block the exchange or transfer of those units
during the period beginning 15 days before the day we mail the
notice of exercise and ending on the day of that mailing, in order
to freeze the list of holders to prepare the mailing. We may also
refuse to register transfers of or exchange any unit selected for
early settlement, except that
we will continue to permit transfers and exchanges of the unsettled
portion of any unit being partially settled. We may also block the
transfer or exchange of any unit in this manner if the unit
includes securities that are or may be selected for early
settlement. |
Only the depositary will be entitled to transfer or exchange a unit
in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving notices with respect to our units, we
will follow the procedures as described in the applicable
prospectus supplement.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee maintain for this purpose as the “holders” of
those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through
others, own beneficial interests in securities that are not
registered in their own names, as “indirect holders” of those
securities. As we discuss below, indirect holders are not legal
holders, and investors in securities issued in book-entry form or
in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify
in the applicable prospectus supplement. This means securities may
be represented by one or more global securities registered in the
name of a financial institution that holds them as depositary on
behalf of other financial institutions that participate in the
depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their
customers.
Only the person in whose name a security is registered is
recognized as the holder of that security. Securities issued in
global form will be registered in the name of the depositary or its
nominee. Consequently, for securities issued in global form, we
will recognize only the depositary as the holder of the securities,
and we will make all payments on the securities to the depositary.
The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their
customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the
terms of the securities.
As a result, investors in a book-entry security will not own
securities directly. Instead, they will own beneficial interests in
a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the
securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in
non-global form. In these cases, investors may choose to hold their
securities in their own names or in “street name.” Securities held
by an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of those
securities, and we will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable
trustee and of any third parties employed by us or a trustee, run
only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the
securities only in global form.
For example, once we make a payment or give a notice to the holder,
we have no further responsibility for the payment or notice even if
that holder is required, under agreements with depositary
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Similarly, we may want to
obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to
comply with a particular provision of the indenture or for other
purposes. In such an event, we would seek approval only from the
holders, and not the indirect holders, of the securities. Whether
and how the holders contact the indirect holders is up to the
holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you
should check with your own institution to find out:
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how it handles securities payments
and notices; |
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whether it imposes fees or
charges; |
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how it would handle a request for
the holders’ consent, if ever required; |
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whether and how you can instruct it
to send you securities registered in your own name so you can be a
holder, if that is permitted in the future; |
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how it would exercise rights under
the securities if there were a default or other event triggering
the need for holders to act to protect their interests; and |
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if the securities are in book entry
form, how the depositary’s rules and procedures will affect these
matters. |
Global Securities
A global security is a security held by a depositary that
represents one or any other number of individual securities.
Generally, all securities represented by the same global securities
will have the same terms.
Each security issued in book-entry form will be represented by a
global security that we deposit with and register in the name of a
financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary, its nominee or a
successor depositary, unless special termination situations arise.
We describe those situations below under “—Special Situations When
a Global Security Will Be Terminated.” As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a
global security, and investors will be permitted to own only
beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
holder of the security, but only an indirect holder of a beneficial
interest in the global security.
If the prospectus supplement for a particular security indicates
that the security will be issued in global form only, then the
security will be represented by a global security at all times
unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only
with the depositary that holds the global security.
If securities are issued only in the form of a global security, an
investor should be aware of the following:
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an investor cannot cause the
securities to be registered in his or her name, and cannot obtain
non global certificates for his or her interest in the securities,
except in the special situations we describe below; |
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an investor will be an indirect
holder and must look to his or her own bank or broker for payments
on the securities and protection of his or her legal rights
relating to the securities, as we describe under “—Legal Holders”
above; |
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an investor may not be able to sell
interests in the securities to some insurance companies and to
other institutions that are required by law to own their securities
in non-book entry form; |
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an investor may not be able to
pledge his or her interest in a global security in circumstances
where certificates representing the securities must be delivered to
the lender or other beneficiary of the pledge in order for the
pledge to be effective; |
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the depositary’s policies, which
may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in a
global security. We and any applicable trustee have no
responsibility for any aspect of the depositary’s actions or for
its records of ownership interests in a global security. We and the
trustee also do not supervise the depositary in any way; |
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the depositary may, and we
understand that DTC will, require that those who purchase and sell
interests in a global security within its book entry system use
immediately available funds, and your broker or bank may require
you to do so as well; and |
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financial institutions that
participate in the depositary’s book entry system, and through
which an investor holds its interest in a global security, may also
have their own policies affecting payments, notices and other
matters relating to the securities. There may be more than one
financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of
those intermediaries. |
Special Situations When A Global Security Will Be Terminated
In a few special situations described below, the global security
will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors
above.
The global security will terminate when the following special
situations occur:
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if the depositary notifies us that
it is unwilling, unable or no longer qualified to continue as
depositary for that global security and we do not appoint another
institution to act as depositary within 90 days; |
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if we notify any applicable trustee
that we wish to terminate that global security; or |
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if an event of default has occurred
with regard to securities represented by that global security and
has not been cured or waived. |
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the
particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary, and
not we or any applicable trustee, is responsible for deciding the
names of the institutions that will be the initial direct
holders.
PLAN OF DISTRIBUTION
We may offer securities under this prospectus from time to time
pursuant to underwritten public offerings, negotiated transactions,
block trades or a combination of these methods or through
underwriters or dealers, through agents and/or directly to one or
more purchasers. The securities may be distributed from time to
time in one or more transactions:
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at a fixed price or prices, which
may be changed; |
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at market prices prevailing at the
time of sale; |
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at prices related to such
prevailing market prices; |
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at negotiated prices; or |
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a combination of these pricing
methods. |
We may also sell equity securities covered by this registration
statement in an “at the market offering” as defined in Rule
415(a)(4) under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at
other than a fixed price on or through the facilities of Nasdaq or
any other securities exchange or quotation or trading service on
which such securities may be listed, quoted or traded at the time
of sale. Such at the market offerings, if any, may be conducted by
underwriters acting as principal or agent.
Each time that securities covered by this prospectus are sold, we
will provide a prospectus supplement or supplements that will
describe the method of distribution and set forth the terms and
conditions of the offering of such securities, including the
offering price of the securities and the proceeds to us, if
applicable.
Offers to purchase the securities being offered by this prospectus
may be solicited directly. Agents may also be designated to solicit
offers to purchase the securities from time to time. Any agent
involved in the offer or sale of our securities will be identified
in a prospectus supplement.
If a dealer is utilized in the sale of the securities being offered
by this prospectus, the securities will be sold 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.
If an underwriter is utilized in the sale of the securities being
offered by this prospectus, an underwriting agreement will be
executed with the underwriter at the time of sale and the name of
any underwriter will be provided in the prospectus supplement that
the underwriter will use to make resales of the securities to the
public. In connection with the sale of the securities, we, or the
purchasers of securities for whom the underwriter may act as agent,
may compensate the underwriter in the form of underwriting
discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation
in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for which they
may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a
dealer will purchase securities as a principal, and may then resell
the securities at varying prices to be determined by the
dealer.
Any compensation paid to underwriters, dealers or agents in
connection with the offering of the securities, and any discounts,
concessions or commissions allowed by underwriters to participating
dealers will be provided in the applicable prospectus supplement.
Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters within the
meaning of the Securities Act, and any discounts and commissions
received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities,
including liabilities under the Securities Act, or to contribute to
payments they may be required to make in respect thereof and to
reimburse those persons for certain expenses.
The securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain persons
participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the
securities, which involve the sale by persons participating in the
offering of more securities than were sold to them. In these
circumstances, these persons would cover such over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if
securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market.
These transactions may be discontinued at any time.
If indicated in the applicable prospectus supplement, underwriters
or other persons acting as agents may be authorized to solicit
offers by institutions or other suitable purchasers to purchase the
securities at the public offering price set forth in the prospectus
supplement, pursuant to delayed delivery contracts providing for
payment and delivery on the date or dates stated in the prospectus
supplement. These purchasers may include, among others, commercial
and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. Delayed
delivery contracts will be subject to the condition that the
purchase of the securities covered by the delayed delivery
contracts will not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which the
purchaser is subject. The underwriters and agents will not have any
responsibility with respect to the validity or performance of these
contracts.
We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus
supplement so indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and
the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by
us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out
any related open borrowings of stock. The third party in such sale
transactions will be an underwriter and, if not identified in this
prospectus, will be named in the applicable prospectus supplement
(or a post-effective amendment). In addition, we may otherwise loan
or pledge securities to a financial institution or other third
party that in turn may sell the securities short using this
prospectus and an applicable prospectus supplement. Such financial
institution or other third party may transfer its economic short
position to investors in our securities or in connection with a
concurrent offering of other securities.
The specific terms of any lock-up provisions in respect of any
given offering will be described in the applicable prospectus
supplement.
The underwriters, dealers and agents may engage in transactions
with us, or perform services for us, in the ordinary course of
business for which they receive compensation.
General Information
Underwriters, dealers and agents that participate in the
distribution of our securities may be underwriters as defined in
the Securities Act, and any discounts or commissions they receive
and any profit they make on the resale of the offered securities
may be treated as underwriting discounts and commissions under the
Securities Act. Any underwriters or agents will be identified and
their compensation described in a prospectus supplement. We may
indemnify agents, underwriters, and dealers against certain civil
liabilities, including liabilities under the Securities Act, or
make contributions to payments they may be required to make
relating to those liabilities. Our agents, underwriters, and
dealers, or their affiliates, may be customers of, engage in
transactions with, or perform services for us in the ordinary
course of business.
Each series of securities offered by this prospectus may be a new
issue of securities with no established trading market. Any
underwriters to whom securities offered by this prospectus are sold
by us for public offering and sale may make a market in the
securities offered by this prospectus, but the underwriters will
not be obligated to do so and may discontinue any market making at
any time without notice. No assurance can be given as to the
liquidity of the trading market for any securities offered by this
prospectus.
Representatives of the underwriters through whom our securities are
sold for public offering and sale may engage in over-allotment,
stabilizing transactions, syndicate short covering transactions and
penalty bids in accordance with Regulation M under the Exchange
Act. Over-allotment involves syndicate sales in excess of the
offering size, which creates a syndicate short position.
Stabilizing transactions permit bids to purchase the offered
securities so long as the stabilizing bids do not exceed a
specified maximum.
Syndicate covering transactions involve purchases of the offered
securities in the open market after the distribution has been
completed in order to cover syndicate short positions. Penalty bids
permit the representative of the underwriters to reclaim a selling
concession from a syndicate member when the offered securities
originally sold by such syndicate member are purchased in a
syndicate covering transaction to cover syndicate short positions.
Such stabilizing transactions, syndicate covering transactions and
penalty bids may cause the price of the offered securities to be
higher than it would otherwise be in the absence of such
transactions. These transactions may be effected on a national
securities exchange and, if commenced, may be discontinued at any
time.
Underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for, us and our subsidiaries
in the ordinary course of business.
We will bear all costs, expenses and fees in connection with the
registration of the securities as well as the expense of all
commissions and discounts, if any, attributable to the sales of any
of our securities by us.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains a website at
http://www.sec.gov that contains reports, proxy and information
statements, and other information regarding issuers that file
electronically with the SEC. In addition, we maintain a website at
http://www.cytosorbents.com and make available free of charge on
this website our annual reports on Form 10-K, quarterly reports on
Form 10-Q, current reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of
the Exchange Act as soon as reasonably practicable after we
electronically file such material with, or furnish it to, the SEC.
Information contained in, or accessible through, our website does
not constitute a part of this prospectus or any accompanying
prospectus supplement.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” much of the
information we file with it, which means that we can disclose
important information to you by referring you to those publicly
available documents. All of the information that we incorporate by
reference is considered to be part of this prospectus, and any of
our subsequent filings with the SEC will automatically update and
supersede this information. This prospectus incorporates by
reference the documents listed below and any future filings made by
CytoSorbents Corporation with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, except for information furnished
under Items 2.02 or 7.01 of our current reports on Form 8-K, or
exhibits related thereto, between the date of this prospectus and
the termination of the offering of the securities:
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our current reports on Form 8-K,
filed on February 18, 2021, March 17, 2021, March 31, 2021, April 8, 2021, April 15, 2021, April 20, 2021, June 2, 2021 and July 6, 2021 (provided that any
portions of such reports that are deemed furnished and not filed
pursuant to instructions to Form 8-K shall not be incorporated by
reference into this prospectus); and |
Any statement contained in any document incorporated by reference
herein will be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this
prospectus or any additional prospectus supplements modifies or
supersedes such statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will provide, upon written or oral request, at no cost, to each
person, including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been
incorporated by reference in the prospectus but not delivered with
the prospectus. You may request a copy of these filings by writing
us at CytoSorbents Corporation, 7 Deer Park Drive, Suite K,
Monmouth Junction, New Jersey 08852. Our telephone number is (732)
329-8885. A copy of all documents that are incorporated by
reference into this prospectus can also be found on our website by
accessing http://www.cytosorbents.com.
You should rely only on the information incorporated by reference
or provided in this prospectus or any supplement. We have not
authorized anyone else to provide you with different information.
You should not assume that information in this prospectus or any
supplement is accurate as of any date other than the date on the
front of these documents.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be
passed upon for us by Morgan, Lewis & Bockius LLP, Princeton,
New Jersey. Additional legal matters may be passed upon by us or
any underwriters, dealers or agents, by counsel that we will name
in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of CytoSorbents Corporation
appearing in CytoSorbents Corporation’s annual report on Form 10-K for the
year ended December 31, 2020, and the effectiveness of
CytoSorbents Corporation’s internal control over financial
reporting as of December 31, 2020 have been audited by
WithumSmith+Brown, PC, independent registered public accounting
firm, as set forth in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon
such reports given on the authority of such firm as experts in
accounting and auditing.

Up to $25,000,000
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Jefferies
December 30, 2021
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