As filed with the U.S.
Securities and Exchange Commission on March 17, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
HILLSTREAM
BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
84-2642541 |
| (State
or other jurisdiction |
|
(I.R.S.
Employer |
| of
incorporation or organization) |
|
Identification
Number) |
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
(908)
955-3140
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Randy
Milby
Chief
Executive Officer
Hillstream
BioPharma, Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
(908)
955-3140
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Jeffrey
J. Fessler, Esq.
Nazia
J. Khan, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112
Tel:
(212) 653-8700
Fax:
(212) 653-8701
Approximate
date of commencement of proposed sale to the public: From time to time, after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
|
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒ |
| |
|
Emerging
growth company ☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the U.S. Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities, and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
Subject
to completion, dated March 17, 2023
Hillstream
BioPharma, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities, warrants
to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised
of one or more of the other securities, having an aggregate initial offering price not exceeding $75 million.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series of securities,
we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement and any related
free writing prospectus may also add, update or change information contained in this prospectus. We may also authorize one or more free
writing prospectuses to be provided to you in connection with these offerings. You should read carefully this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference herein or therein before
you invest in any of our securities.
The
specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one or more
supplements to this prospectus. This prospectus may not be used to consummate sales of any of these securities unless it is accompanied
by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus supplement.
Our
common stock is presently listed on The Nasdaq Capital Market under the symbol “HILS.” On March 16, 2023, the last
reported sale price of our common stock was $0.9834 per share. The applicable prospectus supplement will contain information, where
applicable, as to any other listing on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any,
covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market
prices of our securities, where applicable.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers, or
through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this prospectus.
We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents,
underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose
their names and the nature of our arrangements with them in a prospectus supplement. The price to the public of such securities and the
net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these risks.
Additional risks will be described in the related prospectus supplements under the heading “Risk Factors.” You should
review that section of the related prospectus supplements for a discussion of matters that investors in our securities should consider.
Neither
the U.S. 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 or any accompanying prospectus supplement. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is , 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (“SEC”) using
a “shelf” registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings
of common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually
or as units comprised of a combination of one or more of the other securities in one or more offerings up to a total dollar amount of
$75 million. This prospectus provides you with a general description of the securities we may offer. Each time we sell any type or series
of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms
of that offering.
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. We may add, update or change, in a prospectus
supplement or free writing prospectus, any of the information contained in this prospectus or in the documents we have incorporated by
reference into this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. This prospectus, together with the applicable prospectus supplement, any related free writing
prospectus and the documents incorporated by reference into this prospectus and the applicable prospectus supplement, will include all
material information relating to the applicable offering. You should carefully read both this prospectus and the applicable prospectus
supplement and any related free writing prospectus, together with the additional information described under “Where You Can
Find More Information,” before buying any of the securities being offered.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus that we
may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated by reference
in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize to be provided
to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any, do not constitute an
offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do
this prospectus, the accompanying prospectus supplement or any related free writing prospectus, if any, constitute an offer to sell or
the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or
any related 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
(as our business, financial condition, results of operations and prospects may have changed since that date), even though this prospectus,
any applicable prospectus supplement or any related free writing prospectus is delivered or securities are sold on a later date.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used 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.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes additional
information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the
SEC’s web site or at the SEC’s offices described below under the heading “Where You Can Find More Information.”
Company
References
In
this prospectus “the Company,” “we,” “us,” and “our” refer to Hillstream BioPharma, Inc.,
a Delaware corporation, and its subsidiaries, unless the context otherwise requires.
SUMMARY
Overview
Hillstream
BioPharma is a pre-clinical biotechnology company developing novel therapeutic candidates targeting ferroptosis, an emerging new anti-cancer
mechanism resulting in iron mediated cell death (“IMCD”) and targeted immuno-oncology
(“IO”) novel biologics, for the treatment drug
resistant cancers.
Our Lead Candidates
HSB-1216
Our
most advanced product candidate, HSB-1216, is an IMCD inducer, targeting a
variety of solid tumors. In a clinical pilot study conducted at the University of Heidelberg, Germany, the active drug
in HSB-1216 was found to reduce tumor burden in treatment resistant cancers, including triple negative breast cancer (“TNBC”)
and epithelial carcinomas. We utilize Quatramer™, our proprietary tumor targeting platform,
to enhance the uptake of HSB-1216 in the tumor microenvironment (“TME”) with an extended duration of action and minimal off-target
toxicity. Our goal is to submit an investigational new drug application (“IND”) to the U.S. Food and Drug Administration
(“FDA”) and initiate a clinical study with HSB-1216 in the second half of
2023; however, no assurance can be provided that our IND will be accepted by the FDA in 2023, if at all. If our IND is accepted
by the FDA, our HSB-1216 clinical study will focus on expanding upon the clinical pilot study conducted in Germany. If we are able to
start our clinical study with HSB-1216 in the second half of 2023, we anticipate that clinical data from such trial will be released
either late 2024 or early 2025.
The
discovery of regulated cell death processes, such as apoptosis and autophagy, has enabled novel target discovery for drug development.
Ferroptosis, a form of IMCD, is an emerging regulated cell death process which decreases intracellular iron, or the Labile Iron Pool
(“LIP”), a known factor required for cell growth. Cancer cells promote
increase in the LIP leading to unregulated cell growth and metabolism. Decreasing the LIP induces iron-led reactive oxygen
species (“ROS”) production and lipid peroxidation, two key hallmarks of ferroptosis/IMCD,
which lead to regulated cell death. HSB-1216 sequesters iron in the cytoplasm
of cancer cells and decreases the LIP, thereby inducing ferroptosis/IMCD, leading to regulated cell death. Areas
of interest for the development of HSB-1216 are as a treatment of solid tumors, including small cell lung cancer, TNBC, uveal melanoma,
glioblastoma multiforme, head and neck squamous cell carcinoma and other drug resistant cancers with high unmet need.
HSB-3215
Our
second product candidate, HSB-1940, is an anti-HER2 monoclonal antibody candidate. The ErbB or
HER family of cell surface proteins are some of the most well-known and validated oncology drug targets including ErbB2 or HER2 (human
epidermal growth factor receptor) and Erb3 or HER3. Antibodies against HER2 and HER3 bind to different domains of the extracellular portion
of the proteins or epitopes with trastuzumab primarily binding the extracellular domain IV of HER2. HER2 is a validated
tumor antigen for antibody drug conjugates to treat HER2 positive cancers.
Applied
Biomedical Science Institute (“ABSI”) has developed technology to target unique functional epitopes of the cancer targets
HER2 and HER3. Monoclonal antibodies being developed at ABSI are unique from the currently approved anti-HER2 antibodies. ABSI has granted
us an exclusive option to license technology from ABSI to develop HER2 and HER3 antibodies, including multi-specific and Quatramer-based
therapeutics incorporating portions of the antibodies. These antibodies could be incorporated into proprietary
multi-format biologics (bi- and tri-specific antibodies, ADCs (antibody drug conjugates), CAR-T and CAR-NKs, in Quatramers and Quatrabodies)
against drug resistant cancers including HER2-positive metastatic breast cancer, gastric cancer, lung cancer and ovarian cancer. The
ABSI option terminates on March 24, 2023, unless extended by the parties.
HSB-1940
Our
third product candidate, HSB-1940, is a Quatrabody,
a proprietary IO biologic, in development targeting PD-1. We entered into a research collaboration and product license agreement with
Minotaur Therapeutics, Inc. (“Minotaur”) and a commercial license agreement with Taurus Biosciences, LLC (“Taurus”),
for use of certain technology, including OmniAb antibodies, to advance Picobodies™ against novel, undruggable epitopes
in high-value validated IO targets starting with PD-1. The technologies of Hillstream and Minotaur will be combined under the license
from Taurus to discover, develop and advance biotherapeutics against high-value validated IO targets. Picobodies are bovine-derived
antibody “knob” domains comprised of cysteine-rich ultralong complementary determining region (“CDR”) H3
sequences of 30-40 amino acids weighing ~3-4 KDa, which have the potential to access challenging undruggable epitopes better than
full size antibodies can. By combining Quatramers, with their long half-life, coated with a PD-1 Picobody to create HSB-1940,
we believe we can more efficiently target novel epitopes with greater binding affinity than approved anti-PD-1 antibodies.
We further believe that the development of HSB-1940 is a step toward enabling us to enter the rapidly growing IO market with
additional targets thereafter.
Our
Other Product Candidates
We
intend to further develop our pipeline with novel bispecific monoclonal antibodies. These bispecific antibodies are planned to simultaneously
bind to two different antigens or to two different epitopes on the same antigen. Whether two different antigens or two epitopes on the
same antigen, the bispecific antibody could bind its targets either on the same cell (cis) or on to different cells (trans).
Our strategy involves targeting PD-1 combined with a known, validated undisclosed antigen (HSB-9646) or using HER2 instead of PD-1 (HSB-0059),
while naturally occurring antibodies typically only target one epitope on one antigen.
Our
Platform Technologies
Quatramer
Technology
Quatramer™
is a proprietary
tumor targeting platform which allows us to leverage and exploit key tumor targets and novel emerging pathways such as IMCD
to facilitate the delivery of potent drugs directly to the TME, while sparing healthy tissue. By efficiently extending the circulation
half-life, as well as targeting delivery to the tumor site, Quatramer traps drugs into the TME. This emerging orthogonal anti-cancer
approach leverages a fundamental recognized mechanism of iron mediated tumor growth
and metabolism. We are building a portfolio of long-acting, potent anti-cancer drug candidates using our Quatramer platform.
Risks
Associated with Our Business
Our
ability to execute on our business strategy is subject to a number of risks, which are discussed more fully in the section titled “Risk
Factors.” Investors should carefully consider these risks before making an investment in our common stock. These risks include,
among others, the following:
Risks
Related to Our Financial Position and Need for Additional Capital
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We
have a limited operating history, and we have not initiated, conducted or completed any clinical trials, and have no products approved
for commercial sale, which may make it difficult for you to evaluate our current business and likelihood of success and viability. |
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We
have incurred significant losses since inception, we expect to incur losses in the future and we may not be able to generate sufficient
revenue to achieve and maintain profitability. |
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We
will require substantial additional capital to finance our operations in the future. If we are unable to raise such capital when
needed, or on acceptable terms, we may be forced to curtail, delay or discontinue one or more of development programs or future commercialization
efforts. |
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Management has performed an analysis and concluded that
there is a substantial doubt about our ability to continue as a going concern. Separately, our independent registered public accounting
firm has also concluded there exists a substantial doubt about our ability to continue as a going concern, which may hinder our ability
to obtain future financing. |
Risks
Related to the Discovery and Development of Our Product Candidates
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We
are substantially dependent on the success of our product candidates. If we are unable to complete development of, obtain approval
for and commercialize our product candidates in a timely manner, our business may be harmed. |
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Any
delays in the commencement or completion, or termination or suspension, of our ongoing, planned or future clinical trials could result
in increased costs to us, delay or limit our ability to generate revenue and adversely affect our commercial prospects. |
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The
outcome of pre-clinical testing and early clinical trials may not be predictive of the success of later clinical trials, and the
results of our clinical trials may not satisfy the requirements of the U.S. Food and Drug Administration or other comparable
foreign regulatory authorities. |
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If
we experience delays or difficulties in enrolling patients in our ongoing or planned clinical trials, our receipt of necessary regulatory
approval could be delayed or prevented. |
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We
may be required to perform additional or unanticipated clinical trials to obtain approval or be subject to post-marketing testing
requirements to maintain regulatory approval. If our candidates prove to be ineffective, unsafe or commercially unviable, our entire
technology platform and pipeline would have little, if any, value, which would have a material and adverse effect on our business,
financial condition, results of operations and prospects. |
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Adverse
side effects or other safety risks associated with our drug candidates could delay or preclude approval, cause us to suspend or discontinue
clinical trials or abandon further development, limit the commercial profile of an approved label, or result in significant negative
consequences following marketing approval, if any. |
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Our
products may never achieve market acceptance. |
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We
face significant competition, and if our competitors develop and market technologies or products more rapidly than we do or that
are more effective, safer or less expensive than the products we develop, our commercial opportunities will be negatively impacted. |
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Our business may be adversely affected by the coronavirus
pandemic. |
Risks
Related to Our Reliance on Third Parties
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We
rely on third parties to manufacture our product candidates and conduct our pre-clinical studies and clinical trials. If these third
parties do not successfully perform their contractual and regulatory duties or meet expected deadlines, we may not be able to obtain
regulatory approval for or commercialize our drug candidates and our business could be substantially harmed. |
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We
currently depend on sole source suppliers and manufacturers for certain
ingredients, and the inability to obtain such ingredients as required could harm
our business. |
Risks
Related to Commercialization of Our Drug Candidates
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Even
if we are successful in completing all pre-clinical studies and clinical trials, we may not be successful in commercializing one
or more of our drug candidates. |
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The
development and commercialization of pharmaceutical products are subject to extensive regulation, and we may not obtain regulatory
approvals for our drug candidates on a timely basis, or at all. |
Risks
Related to Our Intellectual Property
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Our
inability to protect our intellectual property and proprietary rights may have a material adverse effect on our business. |
Risks
Related to Managing Our Business and Operations
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We
may encounter difficulties in managing our growth, which could adversely affect our operations. |
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Our
employees, independent contractors, consultants, commercial partners, collaborators and vendors may engage in misconduct or other
improper activities, including noncompliance with regulatory standards and requirements. |
Risks
Related to Our Common Stock
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We
are currently listed on The Nasdaq Capital Market. If we are unable to maintain listing of our securities on Nasdaq or any stock
exchange, our stock price could be adversely affected and the liquidity of our stock and our ability to obtain financing could be
impaired and it may be more difficult for our stockholders to sell their securities. |
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Our
principal stockholders and management own a significant percentage of our stock and will be able to exert significant control over
matters subject to stockholder approval. |
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We
do not intend to pay dividends on our common stock so any returns will be limited to the value of our stock. |
Our
Corporate History
Hillstream
BioPharma Inc. (“HBI”) was incorporated on March 28, 2017, as a Delaware C-corporation. On July 16, 2019, Hillstream BioPharma
Holdings, Inc. (“Holdco”) was formed as a Delaware C-corporation. On July 24, 2019, Holdco entered into a Contribution and
Exchange Agreement with Nanoproteagen LLC (“Nanoproteagen”) whereby the members of Nanoproteagen exchanged 100% of their
membership interests in Nanoproteagen for shares of Holdco common stock. Also on July 24, 2019, the stockholders of HBI exchanged 100%
of their shares of common stock for shares of common stock of Holdco. HBI and Nanoproteagen became wholly-owned subsidiaries of Holdco.
On August 7, 2019, pursuant to a certificate of amendment, Holdco’s name was changed to Hillstream BioPharma, Inc. and HBI’s
name was changed to HB Pharma Corp. On November 12, 2020, Hillstream BioPharma, Inc. entered into a Share Exchange Agreement with Farrington
Therapeutics LLC (“Farrington”), whereby the members of Farrington exchanged their membership interest in Farrington for
shares of common stock of Hillstream BioPharma, Inc., and Farrington became a wholly-owned subsidiary of Hillstream BioPharma, Inc. At
December 31, 2022, Hillstream BioPharma, Inc. has two wholly-owned subsidiaries: HB Pharma Corp. and Farrington. At February
27, 2023, Hillstream BioPharma, Inc. has one wholly-owned subsidiary, HB Pharma Corp.
Corporate
Information
Our
principal executive offices are located at 1200 Route 22 East, Suite 2000, Bridgewater, NJ 08807 and our telephone number is (908) 955-3140.
Our website address is www.hillstreambio.com. The information contained on our website is not incorporated by reference into this prospectus,
and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or
in deciding whether to purchase our common shares.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities,
either individually or in units, from time to time under this prospectus, together with any applicable prospectus supplement and related
free writing prospectus, at prices and on terms to be determined by market conditions at the time of offering. If we issue any debt securities
at a discount from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities
issued under this prospectus, we will treat the initial offering price of the debt securities as the total original principal amount
of the debt securities. Each time we offer securities under this prospectus, we will provide offerees with a prospectus supplement that
will describe the specific amounts, prices and other important terms of the securities being offered, including, to the extent applicable:
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designation
or classification; |
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aggregate
principal amount or aggregate offering price; |
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maturity,
if applicable; |
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original
issue discount, if any; |
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rates
and times of payment of interest or dividends, if any; |
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redemption,
conversion, exchange or sinking fund terms, if any; |
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange
prices or rates and in the securities or other property receivable upon conversion or exchange; |
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restrictive
covenants, if any; |
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voting
or other rights, if any; and |
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important
United States federal income tax considerations. |
A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update, or change
information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free
writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of
the registration statement of which this prospectus is a part.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents acting on
our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus supplement
will set forth the names of any underwriters, dealers or agents involved in the sale of securities described in that prospectus supplement
and any applicable fee, commission or discount arrangements with them, details regarding any over-allotment option granted to them, and
net proceeds to us. The following is a summary of the securities we may offer with this prospectus.
Common
Stock
We
currently have authorized 250,000,000 shares of common stock, par value $0.0001 per share. As of March 10, 2023, 11,514,144 shares of common stock were issued and outstanding. We may offer shares of our common stock either alone or underlying other registered
securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to such dividends as our board
of directors (the “Board of Directors” or “Board”) may declare from time to time out of legally available funds,
subject to the preferential rights of the holders of any shares of our preferred stock that are outstanding or that we may issue in the
future. Currently, we do not pay any dividends on our common stock. Each holder of our common stock is entitled to one vote per share
held on all matters submitted to a vote of our stockholders. In this prospectus, we provide a general description of, among other things,
the rights and restrictions that apply to holders of our common stock.
Preferred
Stock
We
currently have authorized 10,000,000 shares of preferred stock, par value $0.0001, none of which are issued and outstanding.
Any
authorized and undesignated shares of preferred stock may be issued from time to time in one or more series pursuant to a resolution
or resolutions providing for such issue duly adopted by our Board of Directors (authority to do so being hereby expressly vested in the
Board of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or
resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly
unissued series of preferred stock, including, without limitation, authority to fix by resolution or resolutions the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price
or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation
thereof, or any of the foregoing.
The
rights, preferences, privileges, and restrictions granted to or imposed upon any series of preferred stock that we offer and sell under
this prospectus and applicable prospectus supplements will be set forth in a certificate of designation relating to the series. We will
incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation
that describes the terms of the series of preferred stock we are offering before the issuance of shares of that series of preferred stock.
You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the
series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated, and convertible into shares of our common
stock or preferred stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as
the “debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered between
us and a trustee. The indentures do not limit the amount of securities that may be issued under them and provide that debt securities
may be issued in one or more series. The senior debt securities will have the same rank as all of our other indebtedness that is not
subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth in the applicable prospectus
supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors and preferred stockholders of
our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities being offered. This prospectus contains
only general terms and provisions of the debt securities. The applicable prospectus supplement will describe the particular terms of
the debt securities offered thereby. You should read any prospectus supplement and any free writing prospectus that we may authorize
to be provided to you related to the series of debt securities being offered, as well as the complete note agreements and/or indentures
that contain the terms of the debt securities. The forms of senior and subordinated indentures have been filed as exhibits to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of debt securities
being offered will be incorporated by reference into the registration statement of which this prospectus is a part from reports we file
with the SEC.
Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue the warrants
by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate from
any offered securities. Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants may be issued under
a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our Board of Directors will determine
the terms of the warrants. This prospectus contains only general terms and provisions of the warrants. The applicable prospectus supplement
will describe the particular terms of the warrants being offered thereby. You should read any prospectus supplement and any free writing
prospectus that we may authorize to be provided to you related to the series of warrants being offered, as well as the complete warrant
agreements that contain the terms of the warrants. Specific warrant agreements will contain additional important terms and provisions
and will be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the
SEC.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities
in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may
enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name
and address of the unit agent in the applicable prospectus supplement relating to a particular series of units. This prospectus contains
only a summary of certain general features of the units. The applicable prospectus supplement will describe the particular features of
the units being offered thereby. You should read any prospectus supplement and any free writing prospectus that we may authorize to be
provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units.
Specific unit agreements will contain additional important terms and provisions and will be incorporated by reference into the registration
statement of which this prospectus is a part from reports we file with the SEC.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains, and the prospectus supplement applicable to each
offering of our securities will contain, a discussion of the risks applicable to an investment in our securities. Prior to making a decision
about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors”
in this prospectus and the applicable prospectus supplement, together with all of the other information contained or incorporated by
reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks,
uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year
ended December 31, 2022, filed with the SEC on March 16, 2023, and incorporated herein by reference, as may be amended,
supplemented or superseded from time to time by other reports we file with the SEC in the future and any prospectus supplement related
to a particular offering. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of these known or
unknown risks might cause you to lose all or part of your investment in the offered securities.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any accompanying prospectus supplement, any related free writing prospectus and the documents incorporated by reference herein
or therein contain, in addition to historical information, certain forward-looking statements within the meaning of Section 27A of the
Securities Act or 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), that include information relating to future events, future financial performance, strategies, expectations,
competitive environment, regulatory environment and availability of resources. Such forward-looking statements include those that express
plans, anticipation, intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact.
These forward-looking statements are based on our current expectations and projections about future events and they are subject to risks
and uncertainties known and unknown that could cause actual results and developments to differ materially from those expressed or implied
in such statements.
In
some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,” “intends,”
“estimates,” “plans,” “believes,” “seeks,” “may,” “should”, “could”
or the negative of such terms or other similar expressions. Accordingly, these statements involve estimates, assumptions and uncertainties
that could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their
entirety by reference to the factors discussed throughout this prospectus, any accompanying prospectus supplement or incorporated herein
by reference.
Risks,
uncertainties and other factors that may cause our actual results, performance or achievements to be different from those expressed or
implied in our written or oral forward-looking statements may be found in this prospectus and any accompanying prospectus supplement
under the heading “Risk Factors” and in our Annual Report on Form 10-K for the year ended December 31, 2022 under
the headings “Risk Factors” and “Business,” as may be amended, supplemented or superseded from time to time by
other reports we file with the SEC in the future and any prospectus supplement related to a particular offering.
Forward-looking
statements speak only as of the date they are made. You should not put undue reliance on any forward-looking statements. We assume no
obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting
forward-looking information, except to the extent required by applicable securities laws. If we do update one or more forward-looking
statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.
New
factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the
impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements. We qualify all of the information presented in this prospectus, any
accompanying prospectus supplement and incorporated herein by reference, and particularly our forward-looking statements, by these cautionary
statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently intend
to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes, including the development
and commercialization of our products, research and development, general and administrative expenses, license or technology acquisitions,
and working capital and capital expenditures. We may also use the net proceeds to repay any debts and/or invest in or acquire complementary
businesses, products, or technologies, although we have no current commitments or agreements with respect to any such investments or
acquisitions as of the date of this prospectus. We have not determined the amount of net proceeds to be used specifically for the foregoing
purposes. As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be relying
on the judgment of our management regarding the application of the proceeds of any sale of the securities. Pending use of the net proceeds,
we intend to invest the proceeds in short-term, investment-grade, interest-bearing instruments.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the applicable
prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors, including, our future
capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any. Therefore, we will retain
broad discretion in the use of the net proceeds.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock that
we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock or preferred
stock that we may offer, we will describe the particular terms of any class or series of these securities in more detail in the applicable
prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to our Certificate of Incorporation,
as amended (“Certificate of Incorporation”), and our Bylaws that are incorporated by reference into the registration statement
of which this prospectus is a part or may be incorporated by reference in this prospectus or any applicable prospectus supplement. The
terms of these securities may also be affected by Delaware General Corporation Law (the “DGCL”). The summary below and that
contained in any applicable prospectus supplement or any related free writing prospectus are qualified in their entirety by reference
to our Certificate of Incorporation and our Bylaws.
As
of the date of this prospectus, our authorized capital stock consisted of 250,000,000 shares of common stock, $0.0001 par value per share,
and 10,000,000 shares of preferred stock, $0.0001 par value per share. Our Board may establish the rights and preferences of the preferred
stock from time to time. As of March 10, 2023, there were 11,514,144 shares of our common stock and no shares of our preferred
stock issued and outstanding.
Common
Stock
We
are authorized to issue up to a total of 250,000,000 shares of common stock, par value $0.0001 per share. Holders of our common stock
are entitled to one vote for each share held on all matters submitted to a vote of our stockholders. Holders of our common stock have
no cumulative voting rights. All shares of common stock offered hereby will, when issued, be fully paid and nonassessable, including
shares of common stock issued upon the exercise of common stock warrants or subscription rights, if any.
Further,
holders of our common stock have no preemptive or conversion rights or other subscription rights. Upon our liquidation, dissolution or
winding-up, holders of our common stock are entitled to share in all assets remaining after payment of all liabilities and the liquidation
preferences of any of our outstanding shares of preferred stock. Subject to preferences that may be applicable to any outstanding shares
of preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our
Board of Directors out of our assets which are legally available.
The
holders of a majority of the shares of our capital stock, represented in person or by proxy, are necessary to constitute a quorum for
the transaction of business at any meeting. If a quorum is present, an action by stockholders entitled to vote on a matter is approved
if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, with the exception of
the election of directors, which requires a plurality of the votes cast.
Preferred
Stock
Our
Board of Directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of preferred stock
in one or more series and to fix the designations, powers, preferences, privileges, and relative participating, optional, or special
rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights, conversion rights,
voting rights, terms of redemption, and liquidation preferences, any or all of which may be greater than the rights of the common stock.
Our Board of Directors, without stockholder approval, can issue preferred stock with voting, conversion, or other rights that could adversely
affect the voting power and other rights of the holders of common stock. Preferred stock could be issued quickly with terms calculated
to delay or prevent a change of control or make removal of management more difficult. Additionally, the issuance of preferred stock may
have the effect of decreasing the market price of our common stock, and may adversely affect the voting and other rights of the holders
of common stock. At present, we have no plans to issue any shares of preferred stock following this offering.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
We
are governed by the provisions of Section 203 of the DGCL. In general, Section 203 prohibits a publicly traded Delaware corporation 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 or other transactions resulting in a financial benefit to the stockholder. 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, subject to certain exceptions. The statute could have the effect of delaying, deferring or preventing a change in control of our
Company.
Our
Certificate of Incorporation and Bylaws contain provisions that could have the effect of discouraging potential acquisition proposals
or making a tender offer or delaying or preventing a change in control, including changes a stockholder might consider favorable. In
particular, our Certificate of Incorporation and Bylaws, as applicable, among other things:
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provide
our Board of Directors with the ability to alter our bylaws without stockholder approval; |
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provide
that vacancies on our Board of Directors may be filled by a majority of directors in office, although less than a quorum; |
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provide
that special meetings of our stockholders may be called by our Board of Directors, our Chief Executive Officer, or our President
(in the absence of a Chief Executive Officer), the Chairman of our Board of Directors or stockholders entitled to cast at least one-fifth
of the votes which all stockholders are entitled to cast at the particular meeting; and |
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provide
advance notice requires for stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates
for election as directors at our annual meeting of stockholders. |
Such
provisions may have the effect of discouraging a third-party from acquiring us, even if doing so would be beneficial to our stockholders.
These provisions are intended to enhance the likelihood of continuity and stability in the composition of our Board of Directors and
in the policies formulated by them, and to discourage some types of transactions that may involve an actual or threatened change in control
of our Company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage some
tactics that may be used in proxy fights. We believe that the benefits of increased protection of our potential ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our Company outweigh the disadvantages of discouraging
such proposals because, among other things, negotiation of such proposals could result in an improvement of their terms.
However,
these provisions could have the effect of discouraging others from making tender offers for our shares that could result from actual
or rumored takeover attempts. These provisions also may have the effect of preventing changes in our management.
Listing
Our
common stock is listed on The Nasdaq Capital Market under the trading symbol “HILS.”
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Pacific Stock Transfer Company.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing prospectuses,
summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms of
any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of
any debt securities we offer under a prospectus supplement may differ from the terms we describe below. However, no prospectus supplement
shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness. As of the date of this prospectus, we have no outstanding registered debt securities.
Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture.
We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that we will enter into
with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement,
of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference
from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term
“trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable
to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contains the terms of
the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth or
determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in
separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt
securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered,
including:
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding; |
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any
limit on the amount that may be issued; |
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be; |
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United
States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the
terms of the subordination of any series of subordinated debt; |
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the
place where payments will be made; |
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restrictions
on transfer, sale or other assignment, if any; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
or provisional redemption provisions and the terms of those redemption provisions; |
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are
obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities
and the currency or currency unit in which the debt securities are payable; |
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whether
the indenture will restrict our ability or the ability of our subsidiaries, if any, to: |
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incur
additional indebtedness; |
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issue
additional securities; |
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries; |
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
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make
investments or other restricted payments; |
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sell
or otherwise dispose of assets; |
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enter
into sale-leaseback transactions; |
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engage
in transactions with stockholders or affiliates; |
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issue
or sell stock of our subsidiaries; or |
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effect
a consolidation or merger; |
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities; |
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information
describing any book-entry features; |
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the
applicability of the provisions in the indenture on discharge; |
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events
of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under
applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable
for our common stock, our preferred stock or other securities (including securities of a third party). We will include provisions as
to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which
the number of shares of our common stock, our preferred stock or other securities (including securities of a third party) that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the
debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of
other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities
before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended; |
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase
or otherwise, and the time for payment has not been extended; |
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or
we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain
specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each
issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any
holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any
loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any
trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
The
indentures will provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of its
powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse
to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights
of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking
any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would
be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request
and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as trustee; and |
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures will provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by
a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured or waived.
Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain other defaults
specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive
committee or a trust committee of directors, or responsible officers of the trustee, in good faith determine that withholding notice
is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture; |
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to
comply with the provisions described above under “Description of Debt Securities — Consolidation, Merger or Sale;” |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided under
“Description of Debt Securities — General,” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of
debt securities; |
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; |
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose; |
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or
to surrender any right or power conferred to us in the indenture; or |
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material respect. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, subject to the terms of the indenture for any series of debt securities that we may issue or otherwise provided in
the prospectus supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes
with the consent of each holder of any outstanding debt securities affected:
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● |
extending
the stated maturity of the series of debt securities; |
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● |
reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or |
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● |
reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable
to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt
securities, except for specified obligations, including obligations to:
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● |
register
the transfer or exchange of debt securities of the series; |
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● |
replace
stolen, lost or mutilated debt securities of the series; |
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● |
maintain
paying agencies; |
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● |
hold
monies for payment in trust; |
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● |
recover
excess money held by the trustee; |
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● |
compensate
and indemnify the trustee; and |
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● |
appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we will deposit with the trustee money or government obligations sufficient to pay all
the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures will provide that we may issue debt
securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of,
The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
See “Legal Ownership of Securities” below for a further description of the terms relating to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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● |
issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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● |
register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers given it by
the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs,
expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree
of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities
that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The senior
indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured
or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist
of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered
independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached
to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the applicable
prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may
differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this
prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. If selected, the
warrant agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial
owners of the warrants. If applicable, we will file as exhibits to the registration statement of which this prospectus is a part, or
will incorporate by reference from a Current Report on Form 8-K that we file with the SEC, the form of warrant agreement, including a
form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the
related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a
particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus related
to the particular series of warrants that we sell under this prospectus, as well as the complete warrant agreements and warrant certificates
that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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● |
the
offering price and aggregate number of warrants offered; |
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● |
the
currency for which the warrants may be purchased; |
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● |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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● |
if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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● |
in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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● |
in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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● |
the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
| |
● |
the
terms of any rights to redeem or call the warrants; |
| |
● |
any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
| |
● |
the
dates on which the right to exercise the warrants will commence and expire; |
| |
● |
the
manner in which the warrant agreements and warrants may be modified; |
| |
● |
United
States federal income tax consequences of holding or exercising the warrants; |
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● |
the
terms of the securities issuable upon exercise of the warrants; and |
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● |
any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
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● |
in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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● |
in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the
information that the holder of the warrant will be required to deliver to us or the warrant agent as applicable.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
If
selected, each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon
us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus.
While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular
terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus
supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are
set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a Current
Report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering,
and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain
the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any combination.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of
a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified
date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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● |
the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
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● |
any
provisions of the governing unit agreement that differ from those described below; and |
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● |
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit, respectively.
Unit
Agent
The
name and address of the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced
by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any
notice to the contrary. See “Legal Ownership of Securities.”
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 or
depositary or warrant agent 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. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, 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 global 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 legal holders,
of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in 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 or any applicable trustee or depositary 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 or any such trustee or
depositary 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 legal holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party 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 its 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 an indenture, or for other purposes. In such an event, we would
seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact
the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented
by one or more global securities 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 legal 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 that represents one or any other number of individual securities held by a depositary. 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 issue to, 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, The Depository Trust Company, New York, NY, known as 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 legal 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 legal 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 as a global security, 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 as global securities, 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 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 the 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 the 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 the 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 the 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 the
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, a 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 names, so that they will be direct holders. We have described the rights of holders and street name investors above.
A
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
applicable 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 neither we, nor any
applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
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through
agents to the public or to investors; |
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to
underwriters for resale to the public or to investors; |
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negotiated
transactions; |
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● |
directly
to investors; or |
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through
a combination of any of these methods of sale. |
As
set forth in more detail below, 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; or |
We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
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● |
the
name or names of any agents or underwriters; |
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● |
the
purchase price of the securities being offered and the proceeds we will receive from the sale; |
| |
● |
any
over-allotment options under which underwriters may purchase additional securities from us; |
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
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● |
any
initial public offering price; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchanges or markets on which such securities may be listed. |
Only
underwriters named in an applicable prospectus supplement are underwriters of the securities offered by that prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent and the underwriters will be obligated to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment
option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
common stock for whom they act as agents in the form of discounts, concessions or commissions. Underwriters 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
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase common stock directly and then resell the securities, may
be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common stock
by them may be deemed to be underwriting discounts and commissions under the Securities Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection
with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus supplement, sell securities
covered by this prospectus and the applicable prospectus supplement. If so, the third party may use securities borrowed from us or others
to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities
covered by this prospectus and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event
of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement or in
a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves
the sale by persons participating in the offering of more securities than have been sold to them by us. In those circumstances, such
persons would cover such over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option
granted to those persons. In addition, those 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 underwriters or dealers participating
in any such 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. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction
as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any other class or series
of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters may make a market
in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any
time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
In
order to comply with the securities laws of some U.S. states or territories, if applicable, the securities offered pursuant to this prospectus
will be sold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be
sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit
the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of these activities at any time.
Any
underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in the securities
on The Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering,
before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of
the highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid, however,
the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Sheppard, Mullin, Richter & Hampton LLP,
New York, NY. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name
in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements as of and for the years ended December 31, 2022 and 2021, included in our Annual
Report on Form 10-K for the year ended December 31, 2022, have been audited by Mayer Hoffman McCann P.C., independent registered
public accounting firm, as set forth in their report (which report includes an explanatory paragraph regarding the existence of substantial
doubt about the Company’s ability to continue as a going concern), and have been incorporated herein by reference in reliance
upon such report, given on the authority of such firm as experts in auditing and accounting in giving said reports.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of the registration statement on Form S-3 that we have filed with the SEC under the Securities Act. As
permitted by the SEC’s rules, this prospectus and any accompanying prospectus supplement, which forms a part of the registration
statement, do not contain all of the information that is included in the registration statement. You will find additional information
about us in the registration statement. Any statement made in this prospectus or any accompanying prospectus supplement concerning legal
documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or
otherwise filed with the SEC for a more complete understanding of the document or matter.
We
are subject to the reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can read our SEC filings, including the registration statement, over the internet at the SEC’s website
at http://www.sec.gov. We also maintain a website at www.hillstreambio.com/, at which you may access these materials free
of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained
in, or that can be accessed through, our website is not part of this prospectus.
You
may also read and copy any document we file with the SEC at its public reference facilities at 100 F Street, N.E., Room 1580, Washington,
DC 20549. You may also obtain copies of these documents at prescribed rates by writing to the Public Reference Section of the SEC at
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference facilities. You may also request a copy of these filings, at no cost, by writing or telephoning us at: 1200 Route 22 East,
Suite 2000, Bridgewater, NJ 08807, (908) 955-3140.
INCORPORATION
OF DOCUMENTS BY REFERENCE
This
prospectus is part of the registration statement, but the registration statement includes and incorporates by reference additional information
and exhibits. The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC,
which means that we can disclose important information to you by referring you to those documents rather than by including them in this
prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the
same care that you read this prospectus and any subsequent prospectus supplement. Information that we file later with the SEC will automatically
update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered
to be a part of this prospectus from the date those documents are filed.
We
incorporate by reference the documents listed below, all filings filed by us pursuant to the Exchange Act after the date of the registration
statement of which this prospectus and any accompanying prospectus supplement forms a part, and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the time that all securities covered by this prospectus have been
sold; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report
on Form 8-K and exhibits furnished on such form that relate to such items:
| |
● |
our
Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 16, 2023; |
| |
|
|
| |
● |
our
Current Report on Form 8-K filed with the SEC on February 14, 2023; and |
| |
|
|
| |
● |
the
description of our common stock contained in our Registration Statement on Form 8-A filed with the Commission on January 10, 2022,
including any amendments or reports filed with the SEC for the purposes of updating such description. |
Any
statements made in a document incorporated by reference in this prospectus are deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement in this prospectus or in any other subsequently filed document, which is also incorporated
by reference, modifies or supersedes the statement. Any statement made in this prospectus is deemed to be modified or superseded to the
extent a statement in any subsequently filed document, which is incorporated by reference in this prospectus, 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.
The
information relating to us contained in this prospectus should be read together with the information in the documents incorporated by
reference. In addition, certain information, including financial information, contained in this prospectus or incorporated by reference
in this prospectus should be read in conjunction with documents we have filed with the SEC.
We
will provide to each person, including any beneficial holder, to whom a prospectus is delivered, at no cost, upon written or oral request,
a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus.
Requests for documents should be by writing to or telephoning us at the following address: Hillstream BioPharma, Inc., 1200 Route 22
East, Suite 2000, Bridgewater, NJ 08807, (908) 955-3140. Exhibits to these filings will not be sent unless those exhibits have been specifically
incorporated by reference in such filings.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered
hereby, other than underwriting discounts and commissions, all of which shall be borne by the registrant.
All
of such fees and expenses are estimated:
| | |
Amount | |
| SEC registration fee | |
$ | 8,265 | |
| Accounting fees and expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Miscellaneous fees and expenses | |
| * | |
| Total expenses | |
$ | * | |
| * |
These
fees and expenses depend on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities. |
Item
15. Indemnification of Directors and Officers.
Section
102 of the DGCL permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to
act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our Certificate of Incorporation provides
that no director of the Company shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary
duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination
or limitation of liability of directors for breaches of fiduciary duty.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation,
no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
Our
Certificate of Incorporation and Bylaws provide indemnification for our directors and officers to the fullest extent permitted by the
DGCL. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become,
a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being
referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful. Our Certificate of Incorporation and Bylaws provide that we will indemnify any Indemnitee
who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the
Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as
a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or who was an employee or agent
of a predecessor corporation or another enterprise at the request of such predecessor corporation, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances,
he or she is entitled to indemnification of such expenses. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and our Certificate of Incorporation and Bylaws
against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements
provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee
is not entitled to such indemnification.
We
maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out
of claims based on acts or omissions in their capacities as directors or officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item
16. Exhibits.
Exhibit
Number |
|
Description |
| |
|
|
| 3.1 |
|
Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 27, 2021) |
| |
|
|
| 3.2 |
|
Amendment to Certificate of Incorporation dated August 7, 2019 (Incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 27, 2021) |
| |
|
|
| 3.3 |
|
Amendment to Certificate of Incorporation dated September 16, 2021 (Incorporated by reference to Exhibit 3.3 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 27, 2021) |
| |
|
|
| 3.4 |
|
Amendment to Certificate of Incorporation dated October 11, 2021 (Incorporated by reference to Exhibit 3.5 to the Company’s Registration Statement on Form S-1/A filed with the SEC on October 15, 2021) |
| |
|
|
| 3.5 |
|
Bylaws (Incorporated by reference to Exhibit 3.4 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 27, 2021) |
| |
|
|
| 4.1 |
|
Specimen Stock Certificate Evidencing the Shares of Common Stock (Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 27, 2021) |
| |
|
|
| 4.2* |
|
Form
of Certificate of Designation with respect to Preferred Stock |
| |
|
|
| 4.3** |
|
Form of Senior Indenture |
| |
|
|
| 4.4** |
|
Form of Subordinated Indenture |
| |
|
|
| 4.5* |
|
Form
of Senior Note |
| |
|
|
| 4.6* |
|
Form
of Subordinated Note |
| |
|
|
| 4.7* |
|
Form
of Warrant |
| |
|
|
| 4.8* |
|
Form
of Warrant Agreement |
| |
|
|
| 4.9* |
|
Form
of Unit Agreement |
| |
|
|
| 5.1** |
|
Opinion of Sheppard Mullin Richter & Hampton LLP |
| |
|
|
| 23.1** |
|
Consent of Mayer Hoffman McCann P.C. |
| |
|
|
| 23.2** |
|
Consent of Sheppard Mullin Richter & Hampton LLP (included in Exhibit 5.1) |
| |
|
|
| 24.1** |
|
Power of Attorney (included on signature page hereto) |
| |
|
|
| 25.1* |
|
Statement
of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended |
| |
|
|
| 107** |
|
Filing Fee Table |
| * |
To
the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934,
as amended, and incorporated by reference herein. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
(2)
that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3)
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date;
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act of 1939.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Bridgewater, State of New Jersey, on March 17, 2023.
| |
HILLSTREAM
BIOPHARMA, INC. |
| |
|
| |
By: |
/s/ Randy Milby |
| |
|
Randy
Milby |
| |
|
Chief Executive Officer(Principal
Executive Officer) and Chairman of
the Board of Directors |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Randy Milby , his true and lawful
attorney-in-fact and agent with full power of substitution and re-substitution, for him and in his name, place and stead, in any and
all capacities to sign any or all amendments (including, without limitation, post-effective amendments) to this registration statement,
any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or all pre- or
post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or substitutes
for him, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Randy Milby |
|
Chief
Executive Officer (Principal Executive Officer) |
|
March
17,
2023 |
| Randy
Milby |
|
and
Chairman of the Board of Directors |
|
|
| |
|
|
|
|
| /s/
Thomas Hess |
|
Chief
Financial Officer |
|
March
17,
2023 |
| Thomas
Hess |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Lynne Bui |
|
Director |
|
March
17,
2023 |
| Lynne
Bui |
|
|
|
|
| |
|
|
|
|
| /s/
Leonard Mazur |
|
Director |
|
March
17,
2023 |
| Leonard
Mazur |
|
|
|
|
| |
|
|
|
|
| /s/
Sireesh Appajosyula |
|
Director |
|
March
17,
2023 |
| Sireesh
Appajosyula |
|
|
|
|
Hillstream BioPharma (NASDAQ:HILS)
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