As filed with the Securities and Exchange Commission on September
1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Humacyte, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
85-1763759
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number) |
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2525 East North Carolina Highway 54
Durham, NC 27713
(919) 313-9633
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(Address, including zip code and telephone number, including area
code, of registrant’s principal executive offices)
Dale A. Sander
Chief Financial Officer
2525 East North Carolina Highway 54
Durham, NC 27713
(919) 313-9633
(Name, address, including zip code and telephone number, including
area code, of agent for service)
With copies to:
Kerry S. Burke
Brian K. Rosenzweig
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
Approximate date of commencement of proposed sale to the
public:
From time to time after this registration statement becomes
effective.
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:
x
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.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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 which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or
until the registration statement shall become effective on such
date as the Commission acting pursuant to said Section 8(a) may
determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
•base
prospectus, which covers the offering, issuance and sale, from time
to time, of our common stock, preferred stock, debt securities,
warrants, subscription rights and units, in one or more offerings,
with an aggregate initial offering price of $300,000,000;
and
•a
sales agreement prospectus, which covers the offering, issuance and
sale of up to $80,000,000 of our common stock that may be issued
and sold under an Open Market Sale AgreementSM,
dated as of September 1, 2022, with Jefferies LLC.
The base prospectus immediately follows this explanatory note. The
specific terms of any securities to be offered pursuant to the base
prospectus will be specified in a prospectus supplement to the base
prospectus. The sales agreement prospectus immediately follows the
base prospectus.
The $80,000,000 of shares of common stock that may be offered,
issued and sold by us under the sales agreement prospectus is
included in the $300,000,000 of securities that may be offered,
issued and sold by us under the base prospectus. Upon termination
of the sales agreement, any portion of the $80,000,000 included in
the sales agreement prospectus that is not sold pursuant to the
sales agreement will be available for sale in other offerings
pursuant to the base prospectus and an accompanying prospectus
supplement, and if no shares are sold under the sales agreement,
the full $80,000,000 of securities may be sold in other offerings
pursuant to the base prospectus and an accompanying prospectus
supplement.
The information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This preliminary prospectus is not an offer to sell nor
is it soliciting an offer to buy these securities in any
jurisdiction where such offer or sale is not
permitted.
Subject to completion, dated September 1, 2022
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Subscription Rights
Units
From time to time, we may offer and sell up to $300,000,000 in the
aggregate of the securities identified above, either individually
or in combination, at prices and on terms described in one or more
supplements to this prospectus. We may also offer securities as may
be issuable upon conversion, redemption, repurchase, exchange or
exercise of any securities registered hereunder, including any
applicable anti-dilution provisions.
This prospectus describes the general terms of these securities and
the general manner in which they may be offered. Each time we offer
any securities pursuant to this prospectus, we will provide you
with a prospectus supplement that will describe the specific
amounts, prices and terms of the securities being offered and the
specific manner in which they may be offered. The prospectus
supplement and any related free writing prospectus may also add,
update or change information contained in this prospectus. You
should read this prospectus, the information incorporated by
reference in this prospectus, the accompanying prospectus
supplement, including any information incorporated by reference
therein, and any applicable free writing prospectus carefully
before you invest in the securities described in the applicable
prospectus supplement.
Our common stock is listed on the Nasdaq Global Select Market
(“Nasdaq”) under the symbol “HUMA.” On August 31, 2022, the last
reported sales price of our common stock was $3.65 per share. The
applicable prospectus supplement will contain information, where
applicable, as to other listings, if any, on the Nasdaq Global
Select Market or other securities exchange of the securities
covered by the prospectus supplement.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, directly to purchasers or through
a combination of these methods, on a continuous or delayed basis
from time to time. See “Plan
of Distribution”
in this prospectus and in the applicable prospectus supplement. The
names of any underwriters, dealers or agents involved in the
distribution of our securities, their compensation and any option
they hold to acquire additional securities will be described in the
applicable prospectus supplement. Net proceeds from the sale of
securities will be set forth in the applicable prospectus
supplement.
Investing in our securities involves a high degree of risk. Before
investing in our securities, you should carefully consider the
risks and uncertainties described under the caption
“Risk
Factors”
beginning on page
5
of this prospectus and any similar section contained in the
applicable prospectus supplement and in any free writing prospectus
we have authorized for use in connection with a specific offering,
and under similar headings in the documents incorporated by
reference into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2022.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the U.S. Securities and Exchange Commission
(“SEC”), using a “shelf” registration process under the Securities
Act of 1933, as amended (the “Securities Act”). Under this shelf
registration statement, we may offer and sell from time to time,
separately or together, any combination of our common stock,
preferred stock, warrants, subscription rights, and units in one or
more offerings at an aggregate offering price of up to
$300,000,000. The preferred stock, debt securities, warrants,
subscription rights and units may be convertible into, or
exercisable or exchangeable for, our common or preferred stock or
other securities issued by us.
This prospectus provides you with a general description of the
securities we may offer. Each time we offer and sell securities, we
will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in
this prospectus. You should read this prospectus and the applicable
prospectus supplement together with the additional information
described under the heading “Where
You Can Find More Information.”
We may also prepare free writing prospectuses that describe
particular securities. Any free writing prospectus should also be
read in connection with this prospectus and any prospectus
supplement referred to therein. For purposes of this prospectus,
any reference to an applicable prospectus supplement may also refer
to a free writing prospectus, unless the context otherwise
requires.
Unless otherwise indicated or the context otherwise requires, all
references in this prospectus to “we,” “our,” “us,” “our company”
and “the Company” refer to Humacyte, Inc. (formerly known as Alpha
Healthcare Acquisition Corp.) and its consolidated subsidiary,
Humacyte Global, Inc.
This prospectus describes the terms of this offering also adds to
and updates information contained in the documents incorporated by
reference into this prospectus. To the extent there is a conflict
between the information contained in this prospectus, on the one
hand, and the information contained in any document incorporated by
reference into this prospectus that was filed with the SEC, before
the date of this prospectus, on the other hand, you should rely on
the information in this prospectus. If any statement in one of
these documents is inconsistent with a statement in another
document having a later date (for example, a document incorporated
by reference into this prospectus) the statement in the document
having the later date modifies or supersedes the earlier statement.
The information contained in this prospectus or any free writing
prospectus, or incorporated by reference herein or therein, is
accurate only as of the respective dates thereof, regardless of the
time of delivery of this prospectus or of any sale of our shares of
common stock. Our business, financial condition, results of
operations and prospects may have changed since those
dates.
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 herein 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.
The registration statement of which this prospectus forms a part,
including the exhibits to the registration statement, contains
additional information about us and the securities offered under
this prospectus. The registration statement can be obtained from
the SEC’s website, www.sec.gov. Copies of information filed by us
with the SEC are also available on our website at www.humacyte.com.
The reference to our website is not intended to be an active link
and the information on, or that can be accessed through, our
website is not, and you must not consider the information to be, a
part of this prospectus or any other filings we make with the
SEC.
We have not authorized anyone to provide you with information in
addition to or different from that contained in this prospectus or
any applicable prospectus supplement or free writing prospectus. We
take no responsibility for, and can provide no assurance as to the
reliability of, any information that others may provide. You should
not assume that the information in this prospectus, any applicable
prospectus supplement or any free writing prospectus that we have
prepared is accurate as of any date other than the date of those
documents, and that any information in documents that we have
incorporated by reference is accurate only as of the date of such
document, regardless of the time of delivery of this prospectus or
any prospectus supplement or any sale of a security. Our business,
financial condition, results of operations and prospects may have
changed since those dates.
The distribution of this prospectus and any applicable prospectus
supplement and the offering of the securities in certain
jurisdictions may be restricted by law. Persons who obtain this
prospectus and any applicable prospectus supplement should inform
themselves about, and observe, any such restrictions. This
prospectus and any applicable prospectus supplement do not
constitute, and may not be used in connection with, an offer or
solicitation by anyone in any jurisdiction in which such offer or
solicitation is not permitted or in which the person making such
offer or solicitation is not qualified to do so or to any person to
whom it is unlawful to make such offer or
solicitation.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
contain “forward-looking statements” within the meaning of Section
27A of the Securities Act, and Section 21E of the Exchange Act.
These forward-looking statements reflect our current views with
respect to, among other things, future events and our financial
performance. Any statements about our management’s expectations,
beliefs, plans, predictions, forecasts, objectives, assumptions or
future events or performance are not historical facts and may be
forward-looking. These statements are often, but not always, made
through the use of words or phrases such as “anticipate,”
“believes,” “can,” “could,” “may,” “predicts,” “potential,”
“should,” “will,” “estimate,” “plans,” “projects,” “continuing,”
“ongoing,” “expects,” “intends” and similar words or phrases. All
forward-looking statements, expressed or implied, included herewith
are expressly qualified in their entirety by the cautionary
statements contained or referred to herein. The inclusion of
forward-looking information in this prospectus and the documents
incorporated by reference herein should not be regarded as a
representation by us or any other person that the future plans,
estimates or expectations contemplated by us will be achieved. We
have based these forward-looking statements largely on our current
expectations and projections about future events and financial
trends that we believe may affect our financial condition, results
of operations, business strategy and financial needs. Factors that
may affect our results are disclosed in “Risk
Factors”
beginning on page
5
of this prospectus, and in the documents incorporated by reference
into this prospectus and included or incorporated by reference in
this prospectus. Some of the risks and uncertainties that may cause
our actual results, performance or achievements to differ
materially from those expressed include, but are not limited to,
the following:
•our
plans and ability to execute product development, process
development and preclinical development efforts successfully and on
our anticipated timelines;
•our
plans and ability to obtain marketing approval from the U.S. Food
and Drug Administration (“FDA”) and other regulatory authorities,
including the European Medicines Agency, for our bioengineered
human acellular vessels (“HAVs”) and other product
candidates;
•our
ability to design, initiate and successfully complete clinical
trials and other studies for our product candidates and our plans
and expectations regarding our ongoing or planned clinical trials,
including for our ongoing V005 Phase II/III clinical trial and V007
Phase III clinical trial;
•the
outcome of our ongoing discussions with the FDA concerning the
design of our ongoing V005 Phase II/III clinical trial, including
determination of trial size;
•our
anticipated growth rate and market opportunities;
•the
potential liquidity and trading of our securities;
•our
ability to raise additional capital in the future;
•our
ability to use our proprietary scientific technology platform to
build a pipeline of additional product candidates;
•the
characteristics and performance of our bioengineered human,
acellular vessels (“HAVs”);
•our
plans and ability to commercialize our HAVs and other product
candidates, if approved by regulatory authorities;
•the
expected size of the target populations for our product
candidates;
•the
anticipated benefits of our HAVs relative to existing
alternatives;
•our
assessment of the competitive landscape;
•the
degree of market acceptance of HAVs, if approved, and the
availability of third-party coverage and
reimbursement;
•our
ability to manufacture HAVs and other product candidates in
sufficient quantities to satisfy our clinical trial and commercial
needs;
•our
expectations regarding our strategic partnership with Fresenius
Medical Care Holdings, Inc. to sell, market and distribute our 6
millimeter HAV for certain specified indications and in specified
markets;
•the
performance of other third parties on which we rely, including our
third-party manufacturers, our licensors, our suppliers and the
organizations conducting our clinical trials;
•our
ability to obtain and maintain intellectual property protection for
our product candidates as well as our ability to operate our
business without infringing, misappropriating or otherwise
violating the intellectual property rights of others;
•our
ability to maintain the confidentiality of our trade secrets,
particularly with respect to our manufacturing
process;
•our
compliance with applicable laws and regulatory requirements,
including FDA regulations, healthcare laws and regulations, and
anti-corruption laws;
•our
ability to attract, retain and motivate qualified personnel and to
manage our growth effectively;
•our
future financial performance and capital requirements;
•our
ability to implement and maintain effective internal controls;
and
▪the
impact of the COVID-19 pandemic on our business, including our
manufacturing efforts, and our preclinical studies and clinical
trials.
We caution you that the foregoing list may not contain all of the
forward-looking statements made in this prospectus.
These forward-looking statements are only predictions based on our
current expectations and projections about future events and are
subject to a number of risks, uncertainties and assumptions,
including those described in “Risk
Factors”
and elsewhere in this prospectus. Moreover, we operate in a
competitive industry, and new risks emerge from time to time. It is
not possible for the management of Humacyte to predict all risks,
nor can we assess the impact of all factors 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 may make. In light of these risks,
uncertainties and assumptions, the forward-looking events and
circumstances discussed in this prospectus may not occur, and
actual results could differ materially and adversely from those
anticipated or implied in the forward-looking statements in this
prospectus.
The forward-looking statements included in this prospectus are made
only as of the date hereof. You should not rely upon
forward-looking statements as predictions of future events.
Although we believe that the expectations reflected in our
forward-looking statements are reasonable, we cannot guarantee that
the future results, levels of activity, performance or events and
circumstances reflected in the forward-looking statements will be
achieved or occur. We do not undertake any obligation to update
publicly any forward-looking statements for any reason after the
date of this prospectus to conform these statements to actual
results or to changes in expectations, except as required by
law.
You should read this prospectus, the documents that have been filed
as exhibits to the registration statement of which this prospectus
forms a part, and any accompanying prospectus supplement with the
understanding that the actual future results, levels of activity,
performance, events and circumstances of Humacyte may be materially
different from what is expected.
MARKET, INDUSTRY AND OTHER DATA
Certain information contained in this prospectus, and any
applicable prospectus supplement, and the information incorporated
by reference herein and therein, relates to or is based on studies,
publications, surveys and other data obtained from third-party
sources and Humacyte’s own internal estimates and research. While
our management is responsible for the
accuracy of such statement and we believe these third-party sources
to be reliable as of the date of this prospectus, we have not
independently verified the market and industry data contained in
this prospectus or the underlying assumptions relied on therein.
Finally, while we believe our own internal research is reliable,
such research has not been verified by any independent
source.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to the securities being
offered by this prospectus. This prospectus, which constitutes part
of the registration statement, does not contain all of the
information in the registration statement and its exhibits. For
further information with respect to us and our securities offered
by this prospectus, we refer you to the registration statement and
its exhibits. Statements contained in this prospectus as to the
contents of any contract or any other document referred to are not
necessarily complete, and in each instance, we refer you to the
copy of the contract or other document filed as an exhibit to the
registration statement. Each of these statements is qualified in
all respects by this reference. You can read our SEC filings,
including the registration statement, over the internet at the
SEC’s website at www.sec.gov.
We are subject to the information reporting requirements of the
Exchange Act, and we file reports, proxy statements and other
information with the SEC. These reports, proxy statements and other
information are available for review at the SEC’s website at
www.sec.gov. We also maintain a website at www.humacyte.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. Humacyte’s website and the information
contained on, or that can be accessed through, such website are not
deemed to be incorporated by reference in, and are not considered
part of, this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” into this
prospectus the information in documents we file with the SEC, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be a part of this prospectus and should
be read with the same care. When we update the information
contained in documents that have been incorporated by reference by
making future filings with the SEC, the information incorporated by
reference into this prospectus is considered to be automatically
updated and superseded. In other words, in all cases, if you are
considering whether to rely on information contained in this
prospectus or information incorporated by reference into this
prospectus, you should rely on the information contained in the
document that was filed later. We incorporate by reference (other
than any information furnished to, rather than filed with, the SEC,
unless expressly stated otherwise therein) the documents listed
below (File No. 001-39532 unless otherwise stated), which are
considered to be a part of this prospectus:
•our
Annual Report on
Form 10-K
for the year ended December 31, 2021, filed with the SEC on March
29, 2022 (including the portions of our
Definitive Proxy Statement on Schedule 14A,
filed with the SEC on April 29, 2022, incorporated by reference
therein);
•our
Quarterly Reports on Form 10-Q for the quarter ended
March 31, 2022,
filed May 13, 2022 and for the quarter ended
June 30, 2022,
filed August 12, 2022;
•Our
Current Report on
Form 8-K
(other than any items, exhibits or portions thereof furnished to,
rather than field with, the SEC) filed with the SEC on June 13,
2022; and
•the
description of our common stock contained in
Exhibit 4.6
of our Annual Report on Form 10-K for the fiscal year ended
December 31, 2021, filed with the SEC on March 29,
2022.
All reports and other documents we subsequently file with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until
our offering is completed, including all such reports and other
documents filed with the SEC after the date of the initial filing
of the registration statement of which this prospectus forms a part
and prior to the effectiveness of such registration statement, will
also be incorporated by reference into this prospectus and deemed
to be part hereof (other than any information furnished to, rather
than filed with, the SEC, unless expressly stated otherwise
therein). The information contained in any such filing will be
deemed to be a part of this prospectus commencing on the date on
which the document is filed.
Any documents incorporated by reference into this prospectus are
available without charge to you, upon written request by contacting
our Investor Relations department at Investor Relations, Humacyte,
Inc., 2525 East North Carolina Highway 54, Durham, North Carolina
27713.
THE COMPANY
Humacyte is pioneering the development and manufacture of
off-the-shelf, universally implantable, bioengineered human tissues
with the goal of improving the lives of patients and transforming
the practice of medicine. We believe our technology has the
potential to overcome limitations in existing standards of care and
address the lack of significant innovation in products that support
tissue repair, reconstruction and replacement. We are leveraging
our novel, scalable technology platform to develop proprietary,
bioengineered, acellular human tissues for use in the treatment of
diseases and conditions across a range of anatomic locations in
multiple therapeutic areas. Our lead product candidate is being
developed to address critical gaps in existing treatment options
for acute vascular injuries in the extremities due to trauma in
patient populations that cannot be adequately treated with either
autologous vein or synthetic graft.
On August 26, 2021 (the “Closing Date”), Humacyte, Inc. (“Legacy
Humacyte”) and Alpha Healthcare Acquisition Corp. (“AHAC”)
consummated a business combination pursuant to that certain
Business Combination Agreement, dated as of February 17, 2021 (the
“Business Combination Agreement”), by and among Legacy Humacyte,
AHAC and Hunter Merger Sub (“Merger Sub”), a Delaware corporation
and wholly owned subsidiary of AHAC. As contemplated by the
Business Combination Agreement, Merger Sub merged with and into
Legacy Humacyte, with Legacy Humacyte continuing as the surviving
corporation and as a wholly owned subsidiary of AHAC (the “Business
Combination”). On the Closing Date, AHAC changed its name to
Humacyte, Inc. and Legacy Humacyte changed its name to Humacyte
Global, Inc. AHAC was incorporated in Delaware on July 1,
2020.
Our common stock is traded on Nasdaq under the symbol “HUMA.” The
mailing address of our principal executive office is 2525 East
North Carolina Highway 54, Durham, North Carolina 27713, and our
telephone number is (919) 313-9633. Our website address is
http://www.humacyte.com. The information contained in, or that can
be accessed through, our website is not part of this prospectus. We
make available free of charge on our website our annual, quarterly
and current reports, including amendments to such reports, as soon
as reasonably practicable after we electronically file such
material with, or furnish such material to, the SEC.
Additional information about us and our subsidiaries is included in
documents incorporated by reference in this prospectus. See
“Where
you Can Find More Information”
and “Incorporation
by Reference.”
RISK FACTORS
Investing in securities issued by us involves a high degree of
risk. The prospectus supplement applicable to each offering of our
securities will contain a discussion of the risks applicable to an
investment in our securities.
Before deciding whether to invest in our securities, you should
consider carefully the risks described under the heading “Risk
Factors” in the applicable prospectus supplement and in any of our
filings with the SEC that are incorporated by reference
therein.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds
from the sale of our securities offered by this prospectus. Unless
we indicate otherwise in the applicable prospectus supplement, we
anticipate that any net proceeds will be used for working capital
and general corporate purposes, including expenses related to
funding research and development expenses for our clinical trials
and pre-clinical studies, manufacturing and other costs associated
with advancing our product candidates. We will set forth in the
applicable prospectus supplement our intended use for the net
proceeds received from the sale of any securities sold pursuant to
the prospectus supplement. Pending these uses, we intend to invest
the net proceeds in short-term U.S. treasury money market mutual
funds.
DESCRIPTION OF COMMON STOCK
We may issue, separately or together with, or upon conversion,
exercise or exchange of other securities, shares of our common
stock as set forth in the applicable prospectus supplement. The
following section describes the material features and rights of our
common stock, $0.0001 par value per share, and does not purport to
be complete. It is subject to, and qualified in its entirety by
reference to, our second amended and restated certificate of
incorporation (the “Charter”) and our
By Laws (the “Bylaws”) and applicable provisions of the Delaware
General Corporation Law (“DGCL”). Each of our Charter and Bylaws is
incorporated by reference as an exhibit to the registration
statement of which this prospectus forms a part.
General
As of the date of this prospectus, our authorized capital stock
consists of 270,000,000 shares, comprised of 250,000,000 shares of
common stock, $0.0001 par value per share, and 20,000,000 shares of
preferred stock, $0.0001 par value per share. As of August 22,
2022, there were 103,006,803 shares of our common stock outstanding
and no shares of preferred stock outstanding. Our common stock is
traded on Nasdaq under the symbol “HUMA.”
Common Stock
The Charter provides the following with respect to the rights,
powers, preferences and privileges of our common
stock.
Voting Rights
Holders of record of our common stock are entitled to one vote for
each share held on all matters to be voted upon by stockholders.
Unless specified in our Charter or Bylaws, or as required by
applicable provisions of the DGCL or applicable stock exchange
rules, the affirmative vote of a majority of our shares of common
stock that are voted is required to approve any such matter voted
on by our stockholders.
Our board of directors is divided into three classes, each of which
will generally serve for a term of three years with only one class
of directors being elected each year. There is no cumulative voting
with respect to the election of directors.
Dividend Rights
Subject to applicable law and the rights, if any, of the holders of
any series of our preferred stock then-outstanding, the holders of
our common stock are entitled to receive ratable dividends when, as
and if declared by our board of directors out of funds legally
available therefor and will share equally on a per share basis in
such dividends and distributions.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, after payment or
provision for payment of the debts and other liabilities of
Humacyte, the holders of shares of common stock are entitled to
receive all remaining assets of Humacyte available for distribution
to its stockholders, ratably in proportion to the number of shares
held by them, subject to applicable law and the rights, if any, of
the holders of any outstanding series of preferred
stock.
Other Rights
Our stockholders have no conversion, preemptive or other
subscription rights. There are no sinking fund or redemption
provisions applicable to the common stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Continental Stock Transfer & Trust Company.
DESCRIPTION OF PREFERRED STOCK
Pursuant to the Charter, our board of directors has the authority,
without stockholder approval, subject to limitations prescribed by
law, to provide for the issuance of up to 20,000,000 shares of
preferred stock in one or more series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in
each such series, and to fix the voting rights, if any,
designations, powers, preferences and relative, participating,
optional, special and other rights of the shares of each series and
any qualifications, limitations or restrictions
thereof.
We will fix the voting rights, designations, preferences and rights
of the preferred stock of each series, as well as the
qualifications, limitations or restrictions thereof, in the
certificate of designation relating to such series. We will file an
exhibit to the registration statement of which this prospectus
forms a part, or will incorporate by reference from reports that we
file with the SEC, the form of any certificate of designation that
describes the terms of the series of preferred stock we are
offering before the issuance of that series of preferred stock.
This description will include:
•the
title and stated value;
•the
number of shares offered;
•the
liquidation preference per share;
•the
purchase price per share;
•the
dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation for dividends;
•whether
dividends are cumulative or non-cumulative and, if cumulative, the
date from which dividends will accumulate;
•our
right, if any, to defer payment of dividends and the maximum length
of such deferral period;
•the
procedures for auction and remarketing, if any;
•the
provisions for a sinking fund, if any;
•the
provision for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and
repurchase rights;
•any
listing of the preferred stock on any securities exchange or
market;
•the
terms and conditions, if applicable, upon which the preferred stock
will be convertible into common stock, including the conversion
price (or manner of calculation) and conversion
period;
•whether
the preferred stock will be exchangeable into debt securities, and,
if applicable, the exchange price, or how it will be calculated,
and the exchange period;
•voting
rights, if any, of the preferred stock;
•preemptive
rights, if any;
•restrictions
on transfer, sale or other assignment, if any;
•whether
interests in the preferred stock will be represented by depositary
shares;
•a
discussion go any material and/or special U.S. federal income tax
considerations applicable to the preferred stock;
•the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
•any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs; and
•any
other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
Our board of directors could authorize the issuance of shares of
preferred stock with terms and conditions that could have the
effect of discouraging a takeover or other transaction that might
involve a premium price for holders of the shares or which holders
might believe to be in their best interests. The issuance of
preferred stock could adversely affect the voting power, conversion
or other rights of holders of common stock and reduce the
likelihood that common stockholders will receive dividend payments
and payments upon liquidation.
The laws of the State of Delaware provide that the holders of
preferred stock will have the right to vote separately as a class
on any proposal involving fundamental changes to the rights of
holders of such preferred stock. This right is in addition to any
voting rights that may be provided for in the applicable
certificate of designation.
The transfer agent and registrar for any series of preferred stock
will be set forth in the applicable prospectus
supplement.
Certain Anti-Takeover Provisions of Delaware Law and our Charter
and Bylaws
Delaware Anti-Takeover Statute
We are subject to the provisions of Section 203 of the DGCL
regulating corporate takeovers. This statute prevents certain
Delaware corporations, under certain circumstances and for three
years following the date that the stockholder became an interested
stockholder, as defined below, from engaging in a “business
combination” with:
•a
stockholder who owns 15% or more of our outstanding voting stock
(otherwise known as an “interested stockholder”);
•an
affiliate of an interested stockholder; or
•an
associate of an interested stockholder.
A “business combination” includes a merger or sale of more than 10%
of our assets. However, the above provisions of Section 203 do not
apply if:
•our
board of directors approves the transaction that made the
stockholder an interested stockholder, prior to the date of the
transaction;
•after
the completion of the transaction that resulted in the stockholder
becoming an interested stockholder, that stockholder owned at least
85% of our voting stock outstanding at the time the transaction
commenced, other than statutorily excluded shares of common stock;
or
•on
or subsequent to the date of the transaction, the transaction is
approved by our board of directors and authorized at a meeting of
our stockholders, and not by written consent, by an affirmative
vote of at least two-thirds of the outstanding voting stock not
owned by the interested stockholder.
Classified Board of Directors
Our board of directors is divided into three classes, Class I,
Class II and Class III, with members of each class serving
staggered three-year terms. Our Charter provides that the
authorized number of directors may be changed only by resolution of
the board of directors. As a result, in most circumstances, a
person can gain control of our board only by successfully engaging
in a proxy contest at two or more annual meetings. Subject to the
terms of any preferred stock, any or all of the directors may be
removed from office at any time, but only for cause and only by the
affirmative vote of holders of 66 2/3% of the voting power of all
then outstanding shares of our capital stock entitled to vote
generally in the election of directors, voting together as a single
class. Any vacancy on our board of directors, including a vacancy
resulting from an enlargement of our board of directors, may be
filled only by vote of a majority of our directors then in
office.
Authorized but Unissued Shares
Our authorized but unissued common stock and preferred stock are
available for future issuances without stockholder approval and
could be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, acquisitions and
employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could render more
difficult or discourage an attempt to obtain control of us by means
of a proxy contest, tender offer, merger or otherwise.
Stockholder Action and Special Meetings
Our Charter provides that any action required or permitted to be
taken by the stockholders of the Company must be effected by a duly
called annual or special meeting of such stockholders and may not
be effected by written consent of the stockholders. Our Charter
further provides that meetings of stockholders of the Company may
be called only by the Chairman of the board of directors, the Chief
Executive Officer of the Company, or the board of directors
pursuant to a resolution adopted by a majority of thereof, and that
the ability of the stockholders of the Company to call a special
meeting is specifically denied.
Exclusive Forum Selection
Our Charter requires, to the fullest extent permitted by law, that
derivative actions brought in our name, actions against directors,
officers and employees for breach of fiduciary duty, arising
pursuant to any provision of the DGCL, Charter or Bylaws, or
governed by the internal affairs doctrine, may be brought only in
the Court of Chancery in the State of Delaware and, if brought
outside of Delaware, the stockholder bringing the suit will be
deemed to have consented to service of process on such
stockholder’s counsel except any action (i) as to which the Court
of Chancery in the State of Delaware determines that there is an
indispensable party not subject to the jurisdiction of the Court of
Chancery (and the indispensable party does not consent to the
personal jurisdiction of the Court of Chancery within 10 days
following such determination), (ii) which is vested in the
exclusive jurisdiction of a court or forum other than the Court of
Chancery or (iii) for which the Court of Chancery does not have
subject matter jurisdiction. Any person or entity purchasing or
otherwise acquiring any interest in shares of our capital stock
shall be deemed to have notice of and consented to the forum
provisions in the Charter.
This choice of forum provision may limit a stockholder’s ability to
bring a claim in a judicial forum that it finds favorable for
disputes with us or any of our directors, officers, other employees
or stockholders, which may discourage lawsuits with respect to such
claims. We cannot be certain that a court will decide that this
provision is either applicable or enforceable, and if a court were
to find the choice of forum provision contained in our Charter to
be inapplicable or unenforceable in an action, we may incur
additional costs associated with resolving such action in other
jurisdictions.
Our Charter provides that the exclusive forum provision is
applicable to the fullest extent permitted by applicable law.
Notwithstanding the foregoing, the choice of forum provision will
not apply to claims brought to enforce any liability or duty
created by the Securities Act, the Exchange Act, or any other claim
for which the federal courts have exclusive jurisdiction. Unless
the Company consents in writing to the selection of an alternative
forum, Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all suits brought to enforce any duty or
liability created by the Exchange Act or the rules and regulations
thereunder. As a result, the exclusive forum provision will not
apply to suits brought to enforce any duty or liability created by
the Exchange Act or any other claim for which the federal courts
have exclusive jurisdiction.
DESCRIPTION OF DEBT SECURITIES
We may issue, separately or together with, or upon conversion,
exercise or exchange of other securities, debt securities,
including debentures, notes, bonds and other evidences of
indebtedness as set forth in the applicable prospectus supplement.
The debt securities may be either secured or unsecured and will
either be senior debt securities or subordinated debt securities.
Senior debt securities will be issued under a senior indenture
between us and a trustee to be specified in an accompanying
prospectus supplement. Subordinated debt securities will be issued
under a subordinated indenture between us and a trustee to be
specified in an accompanying prospectus supplement. Together, the
senior indenture and the subordinated indenture are called
indentures in this description. This prospectus, together with the
applicable prospectus supplement, will describe the terms of a
particular series of debt securities that we may offer from time to
time.
The following summary of the material provisions of the indentures
and the debt securities does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the
provisions of the applicable indenture and certificates evidencing
the applicable debt securities. Therefore, you should carefully
consider the applicable indenture and the certificate evidencing
the applicable debt security that is filed as an exhibit to the
registration statement that includes this prospectus. Other
specific terms of the applicable indenture and debt securities will
be described in the applicable prospectus supplement. If any
particular terms of the indenture or debt securities described in a
prospectus supplement differ from any of the terms described below,
then the terms described below will be deemed to have been
superseded by that prospectus supplement. In this description of
the debt securities, the words “Humacyte,” “we,” “us” or “our”
refer only to Humacyte, Inc. and not to our subsidiary, unless we
otherwise expressly state or the context otherwise
requires.
General
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 are not limited as to the amount of debt securities that we may
issue under the indentures. Unless otherwise provided in a
prospectus supplement, a series of debt securities may be reopened
to issue additional debt securities of such series.
The prospectus supplement relating to a particular series of debt
securities will set forth the material terms of the debt securities
being offered, including:
•the
title of the debt securities and whether they are senior debt
securities or subordinated debt securities;
•the
offering price;
•the
person who will be entitled to receive interest, if other than the
record holder on the record date;
•the
maturity date or dates;
•the
interest rate or rates, if any, which may be fixed or variable, at
which the debt securities will bear interest, or the method of
determining such rate or rates;
•the
date from which interest will accrue, the interest payment dates
and the regular record dates, or the method for calculating the
dates and rates;
•the
place or places where payments of principal and interest may be
made;
•any
mandatory or optional redemption provisions or sinking fund
provisions and any applicable redemption or purchase prices
associated with these provisions;
•if
issued other than in denominations of $1,000 or any multiple of
$1,000, the denominations in which the debt securities shall be
issuable;
•if
applicable, the method for determining how the principal, premium,
if any, or interest will be calculated by reference to an index or
formula;
•if
other than U.S. currency, the currency or currency units in which
principal, premium, if any, or interest will be payable, whether we
or a holder may elect payment to be made in a different currency
and the designation of the original currency determination
agent;
•the
portion of the principal amount that will be payable upon
acceleration of maturity, if other than the entire principal
amount;
•if
the principal amount payable at stated maturity will not be
determinable as of any date prior to stated maturity, the amount or
method for determining the amount which will be deemed to be the
principal amount;
•if
applicable, whether the debt securities shall be subject to the
defeasance provisions described below under “Satisfaction and
Discharge; Defeasance” or such other defeasance provisions
specified in the applicable prospectus supplement for the debt
securities;
•any
conversion or exchange provisions;
•whether
the debt securities will be issuable in the form of a global
security;
•any
subordination provisions applicable to the subordinated debt
securities if different from those described below under
“Subordinated Debt Securities”;
•any
paying agents, authenticating agents, security registrars or other
agents for the debt securities, if other than the
trustee;
•any
provisions relating to any security provided for the debt
securities, including any provisions regarding the circumstances
under which collateral may be released or substituted;
•any
deletions of, or changes or additions to, the events of default,
acceleration provisions or covenants;
•any
provisions relating to guaranties for the securities and any
circumstances under which there may be additional obligors;
and
•any
other specific terms of such debt securities.
If we denominate the purchase price of any of the debt securities
in a foreign currency or currencies, or if the principal of or
premium, if any, or interest on any series of debt securities is
payable in a foreign currency or currencies, we will include in the
applicable prospectus supplement information on the restrictions,
elections, material federal income tax considerations, specific
terms and other information with respect to that issue of debt
securities and the foreign currency or currencies.
Unless otherwise specified in the prospectus supplement, the debt
securities will be registered debt securities. Debt securities may
be sold at a substantial discount below their stated principal
amount, bearing no interest or interest at a rate which at the time
of issuance is below market rates. The U.S. federal income tax
considerations applicable to debt securities sold at a discount
will be described in the applicable prospectus
supplement.
Exchange and Transfer
Debt securities may be transferred or exchanged at the office of
the security registrar or at the office of any transfer agent
designated by us.
We will not impose a service charge for any transfer or exchange,
but we may require holders to pay any tax or other governmental
charges associated with any transfer or exchange.
In the event of any partial redemption of debt securities of any
series, we will not be required to:
•issue,
register the transfer of or exchange any debt security of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption and ending at
the close of business on the day of the mailing; or
•register
the transfer of or exchange any debt security of that series
selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part.
Under any indenture, we will initially appoint the trustee as the
security registrar. Any transfer agent, in addition to the security
registrar initially designated by us, will be named in the
prospectus supplement. We may designate additional transfer agents
or change transfer agents or change the office of the transfer
agent. However, we will be required to maintain a transfer agent in
each place of payment for the debt securities of each
series.
Conversion or Exchange
If any debt securities being offered are convertible into or
exchangeable for our common stock or other securities, the relevant
prospectus supplement will set forth the terms of conversion or
exchange. Those terms will include whether conversion or exchange
is mandatory, at the option of the holder or at our option, and the
number of shares of common stock or other securities, or the method
of determining the number of shares of common stock or other
securities, to be received by the holder upon conversion or
exchange. These provisions may allow or require the number of
shares of our common stock or other securities to be received by
the holders of such series of debt securities to be
adjusted.
Global Securities
The debt securities of any series may be represented, in whole or
in part, by one or more global securities. Each global security
will:
•be
registered in the name of a depositary, or its nominee, that we
will identify in a prospectus supplement;
•be
deposited with the depositary or nominee or custodian;
and
•bear
any required legends.
No global security may be exchanged in whole or in part for debt
securities registered in the name of any person other than the
depositary or any nominee unless:
•the
depositary has notified us that it is unwilling or unable to
continue as depositary or has ceased to be qualified to act as
depositary;
•an
event of default has occurred and is continuing with respect to the
debt securities of the applicable series; or
•any
other circumstance described in a prospectus supplement has
occurred permitting or requiring the issuance of any such
security.
As long as the depositary, or its nominee, is the registered owner
of a global security, the depositary or nominee will be considered
the sole owner and holder of the debt securities represented by the
global security for all purposes under the indentures. Except in
the above limited circumstances, owners of beneficial interests in
a global security will not be:
•entitled
to have the debt securities registered in their names;
•entitled
to physical delivery of certificated debt securities;
or
•considered
to be holders of those debt securities under the
indenture.
Payments on a global security will be made to the depositary or its
nominee as the holder of the global security. Some jurisdictions
have laws that require that certain purchasers of securities take
physical delivery of such securities in definitive form. These laws
may impair the ability to transfer beneficial interests in a global
security.
Institutions that have accounts with the depositary or its nominee
are referred to as “participants.” Ownership of beneficial
interests in a global security will be limited to participants and
to persons that may hold beneficial interests through participants.
The depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of debt
securities represented by the global security to the accounts of
its participants.
Ownership of beneficial interests in a global security will be
shown on and effected through records maintained by the depositary,
with respect to participants’ interests, or any participant, with
respect to interests of persons held by participants on their
behalf.
Payments, transfers and exchanges relating to beneficial interests
in a global security will be subject to policies and procedures of
the depositary. The depositary policies and procedures may change
from time to time. Neither any trustee nor we will have any
responsibility or liability for the depositary’s or any
participant’s records with respect to beneficial interests in a
global security.
Payment and Paying Agents
Unless otherwise indicated in a prospectus supplement, the
provisions described in this paragraph will apply to the debt
securities. Payment of interest on a debt security on any interest
payment date will be made to the person in whose name the debt
security is registered at the close of business on the regular
record date. Payment on debt securities of a particular series will
be payable at the office of a paying agent or paying agents
designated by us. However, at our option, we may pay interest by
mailing a check to the record holder. The trustee will be
designated as our initial paying agent.
We may also name any other paying agents in a prospectus
supplement. We may designate additional paying agents, change
paying agents or change the office of any paying agent. However, we
will be required to maintain a paying agent in each place of
payment for the debt securities of a particular
series.
All moneys paid by us to a paying agent for payment on any debt
security that remain unclaimed for a period ending the earlier
of:
•10
business days prior to the date the money would be turned over to
the applicable state; or
•at
the end of two years after such payment was due, will be repaid to
us thereafter. The holder may look only to us for such
payment.
No Protection in the Event of a Change of Control
Unless otherwise indicated in a prospectus supplement with respect
to a particular series of debt securities, the debt securities will
not contain any provisions that may afford holders of the debt
securities protection in the event we have a change in control or
in the event of a highly leveraged transaction, whether or not such
transaction results in a change in control.
Covenants
Unless otherwise indicated in a prospectus supplement with respect
to a particular series of debt securities, the debt securities will
not contain any financial or restrictive covenants.
Consolidation, Merger and Sale of Assets
Unless otherwise indicated in a prospectus supplement with respect
to a particular series of debt securities, we may not consolidate
with or merge into any other person, in a transaction in which we
are not the surviving corporation, or convey, transfer or lease our
properties and assets substantially as an entirety to, any entity,
unless:
•the
successor entity, if any, is a corporation, limited liability
company, partnership, trust or other business entity existing under
the laws of the United States, any State within the United States
or the District of Columbia;
•the
successor entity assumes our obligations on the debt securities and
under the applicable indenture;
•immediately
after giving effect to the transaction, no default or event of
default shall have occurred and be continuing; and
•certain
other conditions specified in the indenture are met.
Events of Default
Unless we indicate otherwise in a prospectus supplement with
respect to a particular series of debt securities, the following
will be events of default for any series of debt securities under
the indentures:
(1)we
fail to pay any interest on any debt security of that series when
it becomes due and we subsequently fail to pay such interest for 30
days;
(2)we
fail to pay principal of or any premium on any debt security of
that series when due;
(3)we
fail to deposit any sinking fund payment when due;
(4)we
fail to perform any other covenant in the applicable indenture and
such failure continues for 90 days after we are given the notice
required in the indentures; and
(5)certain
events including our bankruptcy, insolvency or
reorganization.
Additional or different events of default applicable to a series of
debt securities may be described in a prospectus supplement. An
event of default of one series of debt securities is not
necessarily an event of default for any other series of debt
securities.
The trustee may withhold notice to the holders of any default,
except defaults in the payment of principal, premium, if any,
interest, any sinking fund installment on, or with respect to any
conversion right of, the debt securities of such series. However,
the trustee must consider it to be in the interest of the holders
of the debt securities of such series to withhold this
notice.
Unless we indicate otherwise in a prospectus supplement, if an
event of default, other than an event of default described in
clause (5) above, shall occur and be continuing with respect to any
series of debt securities, either the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding
securities of that series may declare the principal amount and
premium, if any, of the debt securities of that series, or if any
debt securities of that series are original issue discount
securities, such other amount as may be specified in the applicable
prospectus supplement, in each case together with accrued and
unpaid interest, if any, thereon, to be due and payable
immediately.
If an event of default described in clause (5) above shall occur,
the principal amount and premium, if any, of all the debt
securities of that series, or if any debt securities of that series
are original issue discount securities, such other amount as may be
specified in the applicable prospectus supplement, in each case
together with accrued and unpaid interest, if any, thereon, will
automatically become immediately due and payable without any
declaration or other action on the part of the trustee or any
holder. Any payment by us on the subordinated debt securities
following any such acceleration will be subject to the
subordination provisions described below under “Subordinated Debt
Securities.”
After acceleration, the holders of a majority in aggregate
principal amount of the outstanding securities of that series may,
under certain circumstances, rescind and annul such acceleration if
all events of default, other than the non-payment of accelerated
principal, or other specified amounts or interest, have been cured
or waived.
Other than the duty to act with the required care during an event
of default, the trustee will not be obligated to exercise any of
its rights or powers at the request of the holders unless the
holders shall have offered to the trustee reasonable indemnity.
Generally, the holders of a majority in aggregate 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.
A holder of debt securities of any series will not have any right
to institute any proceeding under the indentures, or for the
appointment of a receiver or a trustee, or for any other remedy
under the indentures, unless:
(1)the
holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of
that series;
(2)the
holders of at least 25%, with respect to senior debt securities,
and a majority, with respect to subordinated debt securities, in
aggregate principal amount of the outstanding debt securities of
that series have made a written request and have offered reasonable
indemnity to the trustee to institute the proceeding;
and
(3)the
trustee has failed to institute the proceeding and has not received
direction inconsistent with the original request from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series within 60 days after the original
request.
Holders may, however, sue to enforce the payment of principal,
premium or interest on any debt security on or after the due date
or to enforce the right, if any, to convert any debt security (if
the debt security is convertible) without following the procedures
listed in clauses (1) through (3) above.
We will furnish the trustee an annual statement by our officers as
to whether or not we are in default in the performance of the
conditions and covenants under the indenture and, if so, specifying
all known defaults.
Modification and Waiver
Unless we indicate otherwise in a prospectus supplement, we and the
applicable trustee may make modifications and amendments to an
indenture with the consent of the holders of a majority in
aggregate principal amount of the outstanding securities of each
series affected by the modification or amendment.
We may also make modifications and amendments to the indentures for
the benefit of holders without their consent, for certain purposes
including, but not limited to:
•providing
for our successor to assume the covenants under the
indenture;
•adding
covenants or events of default;
•making
certain changes to facilitate the issuance of the
securities;
•securing
the securities, including provisions relating to the release or
substitution of collateral;
•providing
for guaranties of, or additional obligors on, the
securities;
•providing
for a successor trustee or additional trustees;
•curing
any ambiguities or inconsistencies;
•permitting
or facilitating the defeasance and discharge of the securities;
and
•other
changes specified in the indenture.
However, neither we nor the trustee may make any modification or
amendment without the consent of the holder of each outstanding
security of that series affected by the modification or amendment
if such modification or amendment would:
•change
the stated maturity of any debt security;
•reduce
the principal, premium, if any, or interest on any debt security or
any amount payable upon redemption or repurchase, whether at our
option or the option of any holder, or reduce the amount of any
sinking fund payments;
•reduce
the principal of an original issue discount security or any other
debt security payable on acceleration of maturity;
•change
the place of payment or the currency in which any debt security is
payable;
•impair
the right to enforce any payment after the stated maturity or
redemption date;
•if
subordinated debt securities, modify the subordination provisions
in a materially adverse manner to the holders;
•adversely
affect the right to convert any debt security if the debt security
is a convertible debt security; or
•change
the provisions in the indenture that relate to modifying or
amending the indenture.
Satisfaction and Discharge; Defeasance
We may be discharged from our obligations on the debt securities,
subject to limited exceptions, of any series that have matured or
will mature or be redeemed within one year if we deposit enough
money with the trustee to pay all of the principal, interest and
any premium due to the stated maturity date or redemption date of
the debt securities.
Each indenture contains a provision that permits us to elect either
or both of the following:
(1)We
may elect to be discharged from all of our obligations, subject to
limited exceptions, with respect to any series of debt securities
then outstanding. If we make this election, the holders of the debt
securities of the series will not be entitled to the benefits of
the indenture, except for the rights of holders to receive payments
on debt securities or the registration of transfer and exchange of
debt securities and replacement of lost, stolen or mutilated debt
securities.
(2)We
may elect to be released from our obligations under some or all of
any financial or restrictive covenants applicable to the series of
debt securities to which the election relates and from the
consequences of an event of default resulting from a breach of
those covenants.
To make either of the above elections, we must irrevocably deposit
in trust with the trustee enough money to pay in full the
principal, interest and premium on the debt securities. This amount
may be made in cash and/or U.S. government obligations or, in the
case of debt securities denominated in a currency other than U.S.
dollars, cash in the currency in which such series of securities is
denominated and/or foreign government obligations. As a condition
to either of the above elections, for debt securities denominated
in U.S. dollars we must deliver to the trustee an opinion of
counsel that the holders of the debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of the action.
“Foreign government obligations” means, with respect to debt
securities of any series that are denominated in a currency other
than United States dollars:
•direct
obligations of the government that issued or caused to be issued
the currency in which such securities are denominated and for the
payment of which obligations its full faith and credit is pledged,
or, with respect to debt securities of any series which are
denominated in euros, direct obligations of certain members of the
European Union for the payment of which obligations the full faith
and credit of such members is pledged, which in each case are not
callable or redeemable at the option of the issuer
thereof;
•obligations
of a person controlled or supervised by or acting as an agency or
instrumentality of a government described in the bullet above, the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which are not
callable or redeemable at the option of the issuer thereof;
or
•any
depository receipt issued by a bank as custodian with respect to
any obligation specified in the first two bullet points and held by
such bank for the account of the holder of such deposit any
receipt, or with respect to any such obligation which is so
specified and held.
Notices
Notices to holders will be given by mail to the addresses of the
holders in the security register.
Governing Law
The indentures and the debt securities will be governed by, and
construed under, the laws of the State of New York.
No Personal Liability of Directors, Officers, Employees and
Shareholders
No incorporator, shareholder, employee, agent, officer, director or
subsidiary of ours will have any liability for any obligations of
ours, or because of the creation of any indebtedness under the debt
securities, the indentures or supplemental indentures. The
indentures provide that all such liability is expressly waived and
released as a condition of, and as a consideration for, the
execution of such indentures and the issuance of the debt
securities.
Regarding the Trustee
The indentures limit the right of the trustee, should it become our
creditor, to obtain payment of claims or secure its
claims.
The trustee is permitted to engage in certain other transactions
with us. However, if the trustee acquires any conflicting interest,
and there is a default under the debt securities of any series for
which it is trustee, the trustee must eliminate the conflict or
resign.
The accompanying prospectus supplement will specify the trustee for
the particular series of debt securities to be issued under the
indentures.
Subordinated Debt Securities
The following provisions will be applicable with respect to each
series of subordinated debt securities, unless otherwise stated in
the prospectus supplement relating to that series of subordinated
debt securities.
The indebtedness evidenced by the subordinated debt securities of
any series is subordinated, to the extent provided in the
subordinated indenture and the applicable prospectus supplement, to
the prior payment in full, of all senior debt, including any senior
debt securities, in cash or other payment satisfactory to the
holders of senior debt.
Upon any distribution of our assets upon any dissolution, winding
up, liquidation or reorganization, whether voluntary or
involuntary, marshalling of assets, assignment for the benefit of
creditors, or in bankruptcy, insolvency, receivership or other
similar proceedings, payments on the subordinated debt securities
will be subordinated in right of payment to the prior payment in
full in cash or other payment satisfactory to holders of senior
debt of all senior debt.
In the event of any acceleration of the subordinated debt
securities of any series because of an event of default with
respect to the subordinated debt securities of that series, holders
of any senior debt would be entitled to payment in full in cash or
other payment satisfactory to holders of senior debt of all senior
debt before the holders of subordinated debt securities are
entitled to receive any payment or distribution.
In addition, the subordinated debt securities will be structurally
subordinated to all indebtedness and other liabilities of our
subsidiaries, including trade payables and lease obligations. This
occurs because our right to receive any assets of our subsidiaries
upon their liquidation or reorganization, and your right to
participate in those assets, will be effectively subordinated to
the claims of that subsidiary’s creditors, including trade
creditors, except to the extent that we are recognized as a
creditor of such subsidiary. If we are recognized as a creditor of
that subsidiary, our claims would still be subordinate to any
security interest in the assets of the subsidiary and any
indebtedness of the subsidiary senior to us.
We are required to promptly notify holders of senior debt or their
representatives under the subordinated indenture if payment of the
subordinated debt securities is accelerated because of an event of
default.
Under the subordinated indenture, we may also not make payment on
the subordinated debt securities if:
•a
default in our obligations to pay principal, premium, if any,
interest or other amounts on our senior debt occurs and the default
continues beyond any applicable grace period, which we refer to as
a payment default; or
•a
nonpayment default occurs and is continuing with respect to
designated senior debt that permits holders of designated senior
debt to accelerate its maturity, and the trustee receives a payment
blockage notice from us or some other person permitted to give the
notice under the subordinated indenture, which we refer to as a
non-payment default.
We may and shall resume payments on the subordinated debt
securities:
•in
case of a payment default, when the default is cured or waived or
ceases to exist; and
•in
case of a nonpayment default, the earlier of when the default is
cured or waived or ceases to exist or 179 days after the receipt of
the payment blockage notice.
No new payment blockage period may start on the basis of a
nonpayment default unless at least 365 days have elapsed from the
initial effectiveness of the immediately prior payment blockage
notice. No nonpayment default that existed or was continuing on the
date of delivery of any payment blockage notice to the trustee
shall be the basis for a subsequent payment blockage
notice.
As a result of these subordination provisions, in the event of our
bankruptcy, dissolution or reorganization, holders of senior debt
may receive more, ratably, and holders of the subordinated debt
securities may receive less, ratably, than our other creditors. The
subordination provisions will not prevent the occurrence of any
event of default under the subordinated indenture.
The subordination provisions will not apply to payments from money
or government obligations held in trust by the trustee for the
payment of principal, interest and premium, if any, on subordinated
debt securities pursuant to the provisions described under
“Satisfaction and Discharge; Defeasance,” if the subordination
provisions were not violated at the time the money or government
obligations were deposited into trust.
If the trustee or any holder receives any payment that should not
have been made to them in contravention of subordination provisions
before all senior debt is paid in full in cash or other payment
satisfactory to holders of senior debt, then such payment will be
held in trust for the holders of senior debt.
Senior debt securities will constitute senior debt under the
subordinated indenture.
Additional or different subordination provisions may be described
in a prospectus supplement relating to a particular series of debt
securities.
Definitions
“Designated
senior debt”
means our obligations under any particular senior debt in which the
instrument creating or evidencing the same or the assumption or
guarantee thereof, or related agreements or documents to which we
are a party, expressly provides that such indebtedness shall be
designated senior debt for purposes of the subordinated indenture.
The instrument, agreement or other document evidencing any
designated senior debt may place limitations and conditions on the
right of such senior debt to exercise the rights of designated
senior debt.
“Indebtedness”
means the following, whether absolute or contingent, secured or
unsecured, due or to become due, outstanding on the date of the
indenture for such series of securities or thereafter created,
incurred or assumed:
•our
indebtedness evidenced by a credit or loan agreement, note, bond,
debenture or other written obligation;
•all
of our obligations for borrowed money;
•all
of our obligations evidenced by a note or similar instrument given
in connection with the acquisition of any businesses, properties or
assets of any kind,
•our
obligations:
◦as
lessee under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles,
or
◦as
lessee under other leases for facilities, capital equipment or
related assets, whether or not capitalized, entered into or leased
for financing purposes;
•all
of our obligations under interest rate and currency swaps, caps,
floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements;
•all
of our obligations with respect to letters of credit, bankers’
acceptances and similar facilities, including reimbursement
obligations with respect to the foregoing;
•all
of our obligations issued or assumed as the deferred purchase price
of property or services, but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of
business;
•all
obligations of the type referred to in the above clauses of another
person and all dividends of another person, the payment of which,
in either case, we have assumed or guaranteed, for which we are
responsible or liable, directly or indirectly, jointly or
severally, as obligor, guarantor or otherwise, or which are secured
by a lien on our property; and
•renewals,
extensions, modifications, replacements, restatements and
refundings of, or any indebtedness or obligation issued in exchange
for, any such indebtedness or obligation described in the above
clauses of this definition.
“Senior
debt”
means the principal of, premium, if any, and interest, including
all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a
claim in any such proceeding, on, and all fees and other amounts
payable in connection with, our indebtedness. Senior debt shall not
include:
•any
debt or obligation if its terms or the terms of the instrument
under which or pursuant to which it is issued expressly provide it
shall not be senior in right of payment to the subordinated debt
securities or expressly provide that such indebtedness is on the
same basis or “junior” to the subordinated debt securities;
or
•debt
to any of our subsidiaries.
“Subsidiary”
means an entity more than 50% of the outstanding voting stock of
which is owned, directly or indirectly, by us or by one or more of
our other subsidiaries or by a combination of us and our other
subsidiaries. For purposes of this definition, “voting stock” means
stock or other similar interests to us which ordinarily has or have
voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no
senior class of stock or other interests has or have such voting
power by reason of any contingency
Certain Considerations Relating to Foreign Currencies
Debt securities denominated or payable in foreign currencies may
entail significant risks. These risks include the possibility of
significant fluctuations in the foreign currency markets, the
imposition or modification of foreign exchange controls and
potential illiquidity in the secondary market. These risks will
vary depending upon the currency or currencies involved and will be
described in the applicable prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase common stock, preferred stock or
debt securities and be issued in one or more series. Warrants may
be offered independently or in combination with common stock,
preferred stock or debt securities offered by any prospectus
supplement. 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 in
more detail in the applicable prospectus supplement. The following
description of warrants will apply to the warrants offered by this
prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular
series of warrants may specify different or additional
terms.
The following description, together with the additional information
we may include in any applicable prospectus supplement, summarizes
the material terms and provisions of the warrants that we may offer
under this prospectus. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of
warrant and/or the warrant agreement and warrant certificate, as
applicable, that describe the terms of the particular series of
warrants we are offering, and any supplemental agreements, before
the issuance of such warrants. The following summaries of material
terms and provisions of the warrants are subject to, and qualified
in their entirety by reference to, all the provisions of the form
of warrant and/or the warrant agreement and warrant certificate, as
applicable, and any supplemental agreements applicable to a
particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus
supplement related to the particular series of warrants that we may
offer under this prospectus, as well as any related free writing
prospectuses, and the complete form of warrant and/or the warrant
agreement and warrant certificate, as applicable, and any
supplemental agreements, that contain the terms of the
warrants.
General
We will describe in the applicable prospectus supplement the terms
of the series of warrants being offered, including:
•the
offering price and aggregate number of warrants
offered;
•the
currency for which the warrants may be purchased;
•if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such securities or each principal amount of such
security;
•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;
•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;
•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
date on which the right to exercise the warrants will commence and
expire;
•the
manner in which the warrant agreements and warrants may be
modified;
•a
discussion of any material or special U.S. federal income tax
considerations of holding or exercising the warrants;
•the
terms of the securities issuable upon exercise of the warrants;
and
•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:
•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
•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. The warrants may be exercised as set forth in the
prospectus supplement relating to the warrants offered. Unless we
otherwise specify in the applicable prospectus supplement, warrants
may be exercised at any time up to the close of business on the
expiration date set forth in the prospectus supplement relating to
the warrants offered thereby. After the close of business on the
expiration date, unexercised warrants will become
void.
Upon receipt of payment and the warrant or warrant certificate, as
applicable, properly completed and duly executed at the corporate
trust office of the warrant agent, if any, or any other office,
including ours, indicated in the prospectus supplement, we will, as
soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the
warrants represented by such warrant certificate) are exercised, a
new warrant or a new warrant certificate, as applicable, will be
issued for the remaining warrants.
Governing Law
Unless we otherwise specify in the applicable prospectus
supplement, the warrants and any warrant agreements will be
governed by and construed in accordance with the laws of the State
of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, 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 SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase shares of our common
stock or preferred stock. These subscription rights may be issued
independently or together with any other security offered hereby
and may or may not be transferable by the stockholder receiving the
subscription rights in such offering. In connection with any
offering of subscription rights, we may enter into a standby
arrangement with one or more underwriters or other purchasers
pursuant to which the underwriters or other purchasers may be
required to purchase any securities remaining unsubscribed for
after such offering.
The prospectus supplement relating to any offering of subscription
rights will include specific terms relating to the offering,
including:
•the
price, if any, for the subscription rights;
•the
exercise price payable for each share of common stock or preferred
stock upon the exercise of the subscription rights;
•the
number of subscription rights to be offered to each
shareholder;
•the
number and terms of the shares of common stock or preferred stock
which may be purchased per each subscription right;
•the
extent to which the subscription rights are
transferable;
•any
other terms of the subscription rights, including the procedures
and limitations relating to the exchange and exercise of the
subscription rights;
•the
dates on which the right to exercise the subscription rights shall
commence and expire;
•the
extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed securities
or an over-allotment privilege to the extent the securities are
fully subscribed; and
•if
applicable, the material terms of any standby underwriting or
purchase arrangement that we may enter into in connection with the
offering of subscription rights.
The preceding summary of the terms of the subscription rights does
not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the terms of the subscription rights
being offered, as well as any applicable subscription rights
certificate and the terms of the securities to which the
subscription rights relate. Therefore, you should carefully
consider the actual provisions of the subscription right, and
subscription agreement and the applicable securities.
DESCRIPTION OF UNITS
We may issue units comprising one or more securities described in
this prospectus in any combination. The following description sets
forth certain general terms and provisions of the units that we may
offer pursuant to this prospectus. The particular terms of the
units and the extent, if any, to which the general terms and
provisions may apply to the units so offered will be described in
the applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the
holder of each security included in the unit. Thus, the unit will
have the rights and obligations of a holder of each included
security. Units will be issued pursuant to the terms of a unit
agreement, which 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. A copy of the forms of the unit
agreement and the unit certificate relating to any particular issue
of units will be filed with the SEC each time we issue units, and
you should read those documents for provisions that may be
important to you.
The prospectus supplement relating to any particular issuance of
units will describe the terms of those units, including, to the
extent applicable, the following:
•the
designation and terms of the units and the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately;
•any
provision for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units;
and
•whether
the units will be issued in fully registered or global
form.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus from time
to time pursuant to underwritten public offerings, negotiated
transactions, block trades or a combination of these methods or
through underwriters, dealers or agents or directly to one or more
purchasers. The securities may be distributed from time to time in
one or more transactions (or in any combination) at:
•a
fixed price or prices, which may be changed;
•market
prices prevailing at the time of sale;
•prices
related to the prevailing market price; or
•negotiated
prices.
For each type and series of securities offered, the applicable
prospectus supplement will set forth the terms of the offering,
including, without limitation:
•the
public offering price;
•the
names of any underwriters, dealers or agents and the amount of
securities underwritten or purchased by each of them, if
any;
•any
delayed delivery arrangements;
•the
proceeds from the sale of securities to us and the use of proceeds
from the sale of the securities;
•any
underwriting discounts, concessions, commissions, agency fees or
other compensation payable to underwriters, dealers or
agents;
•any
discounts or concessions allowed or re-allowed or repaid to
dealers;
•estimated
offering expenses; and
•the
securities exchanges on which the securities will be listed, if
any.
We may grant underwriters options to purchase additional securities
at the public offering price, with additional underwriting
commissions or discounts, as applicable, set forth in the
prospectus supplement. The terms of any such option will be set
forth in the prospectus supplement for those
securities.
Underwriters or agents may make sales in privately negotiated
transactions and/or any other method permitted by law, including
sales deemed to be an “at-the-market” offering as defined in Rule
415 under the Securities Act, which includes sales made directly on
Nasdaq, the existing trading market for our common stock, or sales
made to or through a market maker other than on an
exchange.
We may issue to our existing security holders, though a dividend or
similar distribution, rights to purchase shares of our common stock
or preferred stock, which may or may not be transferable. In any
distribution of rights to our existing security holders, if all of
the underlying securities are not subscribed for, we may then sell
the unsubscribed securities directly to third parties or may engage
the services of one or more underwriters, dealers or agents,
including standby underwriters, to facilitate the distribution of
the unsubscribed securities. The applicable prospectus supplement
will describe the specific terms of any offering of our common
stock or preferred stock through the issuance of rights including,
if applicable, the material terms of any standby underwriting
agreement or purchase agreement.
Sales Through Underwriters, Dealers or Agents; Direct
Sales
If we use underwriters in any sale of securities offered under this
prospectus, the underwriters will buy the securities for their own
account, including through underwriting, purchase, security lending
or repurchase agreements with us. The underwriters may then resell
the securities in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale
or thereafter. Unless otherwise indicated in the prospectus
supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions and the
underwriters will be obligated to purchase all the securities
offered if they purchase any securities. The public offering price
for the securities and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to
time.
If we use dealers in any sale of securities offered under this
prospectus, the securities will be sold to such dealers as
principals. The dealers may then resell the securities to the
public at varying prices to be determined by such dealers at the
time of resale.
If agents are used in any sale of securities offered under this
prospectus, they will use their reasonable best efforts to solicit
purchases for the period of their appointment or to sell our
securities on a continuing basis. If required, the prospectus
supplement relating to any particular offering of securities will
name any agents designated to solicit offers and will include
information about any commissions they may be paid in that
offering.
If securities offered under this prospectus are sold directly, no
underwriters, dealers or agents would be involved.
We are not making an offer of securities in any state that does not
permit such an offer. If we sell securities through dealers or
agents, or directly, the terms of any such sales will be described
in the applicable prospectus supplement.
Delayed Delivery Contracts
We may authorize underwriters, dealers or agents to solicit offers
from certain institutions whereby the institution contractually
agrees to purchase the securities offered under this prospectus
from us on a future date at a specific price. This type of contract
may be made only with institutions that we specifically approve.
Such institutions could include banks, insurance companies, pension
funds, investment companies and educational and charitable
institutions. The underwriters, dealers or agents will not be
responsible for the validity or performance of these contracts. The
prospectus supplement relating to the contracts will set forth the
price to be paid for offered securities pursuant to such contracts,
the commission payable for solicitation of the contracts and the
date or dates in the future for delivery of offered securities
pursuant to the contracts.
Market Making, Stabilization and Other Transactions
Each issue of a new series of securities, other than issuances of
our common stock, will not have an established trading market,
except as indicated in the applicable prospectus supplement. Unless
indicated in the applicable prospectus supplement, we do not expect
to list the offered securities on a securities exchange, except for
our common stock, which is listed on Nasdaq. We can provide no
assurance as to whether any of our securities will have a liquid
trading market.
In order to facilitate the offering of any of the securities
offered under this prospectus, the underwriters with respect to any
such offering may, as described in the prospectus supplement and in
accordance with applicable law, engage in transactions that
stabilize, maintain or otherwise affect the price of the securities
or any other securities the prices of which may be used to
determine payments on these securities. Stabilizing transactions
involve bids to purchase the underlying security in the open market
for the purpose of preventing or delaying a decline in the price of
the securities. Syndicate covering transactions involve purchases
of the securities in the open market after the distribution has
been completed in order to cover syndicate short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a stabilizing or syndicate
covering transaction to cover syndicate short positions. Any of
these activities may have the effect of raising or maintaining the
market price of our securities or preventing or delaying a decline
in the market price of our securities. As a result, the market
price of the securities may be higher than it otherwise would be in
the absence of these transactions. The underwriters are not
required to engage in these activities, and may end any of these
activities at any time, all as described in the applicable
prospectus supplement.
Any person participating in the distribution of securities will be
subject to applicable provisions of the Exchange Act and the rules
and regulations under the Exchange Act, including Regulation M,
which may limit the timing of transactions involving the securities
offered under this prospectus. Furthermore, Regulation M may
restrict the ability of any person engaged in the distribution of
such securities to engage in market-making activities with respect
to the particular securities being distributed. All of the above
may affect the marketability of the securities offered under this
prospectus and the ability of any person or entity to engage in
market-making activities with respect to such
securities.
Derivative Transactions and Hedging
We, the underwriters or other agents engaged by us may engage in
derivative transactions involving the securities. These derivatives
may consist of short sale transactions and other hedging
activities. The underwriters or agents may acquire
a long or short position in the securities, hold or resell
securities acquired and purchase options or futures on the
securities and other derivative instruments with returns linked or
related to changes in the price of the securities. In order to
facilitate these derivative transactions, we may enter into
security lending or repurchase agreements with the underwriters or
agents. The underwriters or agents may effect the derivative
transactions through sales of the securities to the public,
including short sales, or by lending the securities in order to
facilitate short sale transactions by others. The underwriters or
agents may also use the securities purchased or borrowed from us or
others (or, in the case of derivatives, securities received from us
in settlement of those derivatives) to directly or indirectly
settle sales of the securities or close out any related open
borrowings of the securities.
Electronic Auctions
We may also make sales through the Internet or through other
electronic means. Since we may from time to time elect to offer
securities directly to the public, with or without the involvement
of agents, underwriters or dealers, utilizing the Internet or other
forms of electronic bidding or ordering systems for the pricing and
allocation of such securities, you will want to pay particular
attention to the description of that system, which we will provide
in a prospectus supplement.
Such electronic system may allow bidders to directly participate,
through electronic access to an auction site, by submitting
conditional offers to buy that are subject to acceptance by us, and
which may directly affect the price or other terms and conditions
at which such securities are sold. These bidding or ordering
systems may present to each bidder, on a so-called “real-time”
basis, relevant information to assist in making a bid, such as the
clearing spread at which the offering would be sold, based on the
bids submitted, and whether a bidder’s individual bids would be
accepted, prorated or rejected. For example, in the case of debt
security, the clearing spread could be indicated as a number of
“basis points” above an index treasury note.
Upon completion of such an electronic auction process, securities
will be allocated based on prices bid, terms of bid or other
factors. The final offering price at which securities would be sold
and the allocation of securities among bidders would be based in
whole or in part on the results of the Internet or other electronic
bidding process or auction.
General Information
We expect that any agreements we may have with underwriters,
dealers and agents will include provisions indemnifying them
against certain civil liabilities, including certain liabilities
under the Securities Act, or providing for contribution with
respect to payments that they may be required to make. An
underwriter, dealer or agent, or any of their affiliates, may be a
customer of, or otherwise engage in transactions with or perform
services for us in the ordinary course of business.
The specific terms of any lock-up provisions with respect to any
given offering will be described in the applicable prospectus
supplement.
Under the securities laws of various states, the securities offered
under this prospectus may be sold in those states only through
registered or licensed brokers or dealers. In addition, in various
states the securities offered under this prospectus may not be
offered and sold unless such securities have been registered or
qualified for sale in the state or an exemption from such
registration or qualification is available. We are not making an
offer of securities in any state that does not permit such an
offer.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
the validity of the securities will be passed upon for us by
Covington & Burling LLP, Washington, D.C. If legal matters are
passed upon by counsel for the underwriters, dealers or agents, if
any, such counsel will be named in the prospectus supplement
relating to such offering.
EXPERTS
The financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended
December 31, 2021 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This preliminary prospectus is not an offer to sell nor
is it soliciting an offer to buy these securities in any
jurisdiction where such offer or sale is not
permitted.
Subject to completion, dated September 1, 2022
PROSPECTUS
Up to $80,000,000
Common Stock
We have entered into an Open Market Sale
AgreementSM,
dated September 1, 2022 (the “Sales Agreement”), with Jefferies LLC
(“Jefferies”), relating to the sale of shares of our common stock,
par value $0.0001 per share, offered by this prospectus. In
accordance with the terms of the Sales Agreement, we may offer and
sell shares of our common stock having an aggregate offering price
of up to $80,000,000 from time to time through the Jefferies,
acting as our sales agent or principal.
Our common stock is listed on the Nasdaq Global Select Market
(“Nasdaq”) under the symbol “HUMA.” On August 31, 2022, the last
reported sale price per share of our common stock was $3.65 per
share.
Sales of our common stock, if any, under this prospectus supplement
may be made by any method that is deemed to be an “at the market
offering” as defined in Rule 415(a)(4) promulgated under the
Securities Act of 1933, as amended (the “Securities Act”).
Jefferies is not required to sell any specific number or dollar
amount of our common stock, but will act as our sales agent using
commercially reasonable efforts, consistent with its normal trading
and sales practices, on mutually agreed terms between us and
Jefferies. There is no arrangement for funds to be received in any
escrow, trust or similar arrangement.
Jefferies will be entitled to compensation under the terms of the
Sales Agreement at a commission rate of 3.0% of the gross sales
price of any shares sold under the Sales Agreement. See
“Plan
of Distribution”
for additional information regarding compensation to be paid to the
Jefferies. In connection with the sale of our common stock on our
behalf, Jefferies will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation of Jefferies
will be deemed to be underwriting commissions or discounts. We have
also agreed to provide indemnification and contribution to
Jefferies against certain liabilities, including liabilities under
the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
Investing in our common stock involves a high degree of risk.
Before investing in our common stock, you should carefully consider
the risks and uncertainties described under the caption
“Risk
Factors”
beginning on page
6
of this prospectus and in the documents incorporated by reference
into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
Jefferies
The date of this prospectus is , 2022.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the U.S. Securities and Exchange Commission
(“SEC”), using a “shelf” registration statement under the
Securities Act. Under this shelf registration process, we may offer
and sell shares of our common stock having an aggregate offering
price of up to $80,000,000 from time to time under this prospectus
at prices and on terms to be determined by market conditions at the
time of the offering.
Before buying any of the common stock that we are offering, we urge
you to carefully read this prospectus and the information
incorporated by reference as described under the heading “Where You
Can Find More Information.” These documents contain important
information that you should consider when making your investment
decision.
This prospectus describes the terms of this offering of common
stock and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the
extent there is a conflict between the information contained in
this prospectus, on the one hand, and the information contained in
any document incorporated by reference into this prospectus that
was filed with the SEC, before the date of this prospectus, on the
other hand, you should rely on the information in this prospectus.
If any statement in one of these documents is inconsistent with a
statement in another document having a later date (for example, a
document incorporated by reference into this prospectus) the
statement in the document having the later date modifies or
supersedes the earlier statement. The information contained in this
prospectus or any free writing prospectus, or incorporated by
reference herein or therein, is accurate only as of the respective
dates thereof, regardless of the time of delivery of this
prospectus or of any sale of our shares of common stock. Our
business, financial condition, results of operations and prospects
may have changed since those dates.
Unless otherwise indicated or the context otherwise requires, all
references in this prospectus to “we,” “our,” “us,” “our company”
and “the Company” refer to Humacyte, Inc. (formerly known as Alpha
Healthcare Acquisition Corp.) and its consolidated subsidiary,
Humacyte Global, Inc.
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 herein 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.
The registration statement of which this prospectus forms a part,
including the exhibits to the registration statement, contains
additional information about us and the securities offered under
this prospectus. The registration statement can be obtained from
the SEC’s website, www.sec.gov. Copies of information filed by us
with the SEC are also available on our website at www.humacyte.com.
The reference to our website is not intended to be an active link
and the information on, or that can be accessed through, our
website is not, and you must not consider the information to be, a
part of this prospectus or any other filings we make with the
SEC.
We have not, and Jefferies has not, authorized anyone to provide
you with information in addition to or different from that
contained in this prospectus or any free writing prospectus. We
take no responsibility for, and can provide no assurance as to the
reliability of, any information that others may provide. You should
not assume that the information in this prospectus or any free
writing prospectus that we have prepared is accurate as of any date
other than the date of those documents, and that any information in
documents that we have incorporated by reference is accurate only
as of the date of such document, regardless of the time of delivery
of this prospectus or any sale of a security. Our business,
financial condition, results of operations and prospects may have
changed since those dates.
The distribution of this prospectus and any applicable prospectus
supplement and the offering of the securities in certain
jurisdictions may be restricted by law. Persons who obtain this
prospectus and any applicable prospectus supplement should inform
themselves about, and observe, any such restrictions. This
prospectus does not constitute, and may not be used in connection
with, an offer or solicitation by anyone in any jurisdiction in
which such offer or solicitation is not permitted or in which the
person making such offer or solicitation is not qualified to do so
or to any person to whom it is unlawful to make such offer or
solicitation.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
contain “forward-looking statements” within the meaning of Section
27A of the Securities Act, and Section 21E of the Exchange Act.
These forward-looking statements reflect our current views with
respect to, among other things, future events and our financial
performance. Any statements about our management’s expectations,
beliefs, plans, predictions, forecasts, objectives, assumptions or
future events or performance are not historical facts and may be
forward-looking. These statements are often, but not always, made
through the use of words or phrases such as “anticipate,”
“believes,” “can,” “could,” “may,” “predicts,” “potential,”
“should,” “will,” “estimate,” “plans,” “projects,” “continuing,”
“ongoing,” “expects,” “intends” and similar words or phrases. All
forward-looking statements, expressed or implied, included herewith
are expressly qualified in their entirety by the cautionary
statements contained or referred to herein. The inclusion of
forward-looking information in this prospectus and the documents
incorporated by reference herein should not be regarded as a
representation by us or any other person that the future plans,
estimates or expectations contemplated by us will be achieved. We
have based these forward-looking statements largely on our current
expectations and projections about future events and financial
trends that we believe may affect our financial condition, results
of operations, business strategy and financial needs. Factors that
may affect our results are disclosed in “Risk
Factors”
beginning on page
6
of this prospectus, and in the documents incorporated by reference
into this prospectus and included or incorporated by reference in
this prospectus. Some of the risks and uncertainties that may cause
our actual results, performance or achievements to differ
materially from those expressed include, but are not limited to,
the following:
•our
plans and ability to execute product development, process
development and preclinical development efforts successfully and on
our anticipated timelines;
•our
plans and ability to obtain marketing approval from the U.S. Food
and Drug Administration (“FDA”) and other regulatory authorities,
including the European Medicines Agency, for our bioengineered
human acellular vessels (“HAVs”) and other product
candidates;
•our
ability to design, initiate and successfully complete clinical
trials and other studies for our product candidates and our plans
and expectations regarding our ongoing or planned clinical trials,
including for our ongoing V005 Phase II/III clinical trial and V007
Phase III clinical trial;
•the
outcome of our ongoing discussions with the FDA concerning the
design of our ongoing V005 Phase II/III clinical trial, including
determination of trial size;
•our
anticipated growth rate and market opportunities;
•the
potential liquidity and trading of our securities;
•our
ability to raise additional capital in the future;
•our
ability to use our proprietary scientific technology platform to
build a pipeline of additional product candidates;
•the
characteristics and performance of our bioengineered human,
acellular vessels (“HAVs”);
•our
plans and ability to commercialize our HAVs and other product
candidates, if approved by regulatory authorities;
•the
expected size of the target populations for our product
candidates;
•the
anticipated benefits of our HAVs relative to existing
alternatives;
•our
assessment of the competitive landscape;
•the
degree of market acceptance of HAVs, if approved, and the
availability of third-party coverage and
reimbursement;
•our
ability to manufacture HAVs and other product candidates in
sufficient quantities to satisfy our clinical trial and commercial
needs;
•our
expectations regarding our strategic partnership with Fresenius
Medical Care Holdings, Inc. to sell, market and distribute our 6
millimeter HAV for certain specified indications and in specified
markets;
•the
performance of other third parties on which we rely, including our
third-party manufacturers, our licensors, our suppliers and the
organizations conducting our clinical trials;
•our
ability to obtain and maintain intellectual property protection for
our product candidates as well as our ability to operate our
business without infringing, misappropriating or otherwise
violating the intellectual property rights of others;
•our
ability to maintain the confidentiality of our trade secrets,
particularly with respect to our manufacturing
process;
•our
compliance with applicable laws and regulatory requirements,
including FDA regulations, healthcare laws and regulations, and
anti-corruption laws;
•our
ability to attract, retain and motivate qualified personnel and to
manage our growth effectively;
•our
future financial performance and capital requirements;
•our
ability to implement and maintain effective internal
controls;
•the
use of proceeds from this offering, if any; and
▪the
impact of the COVID-19 pandemic on our business, including our
manufacturing efforts, and our preclinical studies and clinical
trials.
We caution you that the foregoing list may not contain all of the
forward-looking statements made in this prospectus.
These forward-looking statements are only predictions based on our
current expectations and projections about future events and are
subject to a number of risks, uncertainties and assumptions,
including those described in “Risk
Factors”
and elsewhere in this prospectus. Moreover, we operate in a
competitive industry, and new risks emerge from time to time. It is
not possible for the management of Humacyte to predict all risks,
nor can we assess the impact of all factors 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 may make. In light of these risks,
uncertainties and assumptions, the forward-looking events and
circumstances discussed in this prospectus may not occur, and
actual results could differ materially and adversely from those
anticipated or implied in the forward-looking statements in this
prospectus.
The forward-looking statements included in this prospectus are made
only as of the date hereof. You should not rely upon
forward-looking statements as predictions of future events.
Although we believe that the expectations reflected in our
forward-looking statements are reasonable, we cannot guarantee that
the future results, levels of activity, performance or events and
circumstances reflected in the forward-looking statements will be
achieved or occur. We do not undertake any obligation to update
publicly any forward-looking statements for any reason after the
date of this prospectus to conform these statements to actual
results or to changes in expectations, except as required by
law.
You should read this prospectus, the documents that have been filed
as exhibits to the registration statement of which this prospectus
forms a part, and any accompanying prospectus supplement with the
understanding that the actual future results, levels of activity,
performance, events and circumstances of Humacyte may be materially
different from what is expected.
MARKET, INDUSTRY AND OTHER DATA
Certain information contained in this prospectus, and any
applicable prospectus supplement, and the information incorporated
by reference herein and therein, relates to or is based on studies,
publications, surveys and other data obtained from third-party
sources and Humacyte’s own internal estimates and research. While
our management is responsible for the accuracy of such statement
and we believe these third-party sources to be reliable as of the
date of this prospectus, we have not independently verified the
market and industry data contained in this prospectus or the
underlying assumptions relied on therein. Finally, while we believe
our own internal research is reliable, such research has not been
verified by any independent source.
PROSPECTUS SUMMARY
This summary description about us, our business and this offering
highlights selected information contained elsewhere in this
prospectus or incorporated in this prospectus by reference. This
summary does not contain all of the information you should consider
before deciding to invest in our common stock. You should carefully
read this entire prospectus and any free writing prospectus with
respect to this offering filed by us with the SEC, including each
of the documents incorporated herein or therein by reference,
before making an investment decision. Investors should carefully
consider the information set forth under “Risk Factors” on
page
6
and in the documents incorporated by reference into this
prospectus.
Company Overview
Humacyte is pioneering the development and manufacture of
off-the-shelf, universally implantable, bioengineered human tissues
with the goal of improving the lives of patients and transforming
the practice of medicine. We believe our technology has the
potential to overcome limitations in existing standards of care and
address the lack of significant innovation in products that support
tissue repair, reconstruction and replacement. We are leveraging
our novel, scalable technology platform to develop proprietary,
bioengineered, acellular human tissues for use in the treatment of
diseases and conditions across a range of anatomic locations in
multiple therapeutic areas. Our lead product candidate is being
developed to address critical gaps in existing treatment options
for acute vascular injuries in the extremities due to trauma in
patient populations that cannot be adequately treated with either
autologous vein or synthetic graft.
On August 26, 2021 (the “Closing Date”), Humacyte, Inc. (“Legacy
Humacyte”) and Alpha Healthcare Acquisition Corp. (“AHAC”)
consummated a business combination pursuant to that certain
Business Combination Agreement, dated as of February 17, 2021 (the
“Business Combination Agreement”), by and among Legacy Humacyte,
AHAC and Hunter Merger Sub (“Merger Sub”), a Delaware corporation
and wholly owned subsidiary of AHAC. As contemplated by the
Business Combination Agreement, Merger Sub merged with and into
Legacy Humacyte, with Legacy Humacyte continuing as the surviving
corporation and as a wholly owned subsidiary of AHAC (the “Business
Combination”). On the Closing Date, AHAC changed its name to
Humacyte, Inc. and Legacy Humacyte changed its name to Humacyte
Global, Inc. AHAC was incorporated in Delaware on July 1,
2020.
Additional information about us and our subsidiaries is included in
documents incorporated by reference in this prospectus. See
“Where
You Can Find More Information”
and “Incorporation
by Reference.”
Corporate Information
Our common stock is traded on Nasdaq under the symbol “HUMA.” The
mailing address of our principal executive office is 2525 East
North Carolina Highway 54, Durham, North Carolina 27713, and our
telephone number is (919) 313-9633. Our website address is
http://www.humacyte.com. The information contained in, or that can
be accessed through, our website is not part of this prospectus. We
make available free of charge on our website our annual, quarterly
and current reports, including amendments to such reports, as soon
as reasonably practicable after we electronically file such
material with, or furnish such material to, the SEC.
THE OFFERING
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Common stock to be offered by us |
Shares of our common stock having an aggregate offering price of up
to $80,000,000.
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Common stock to be outstanding after this offering |
Up to 111,006,803 (assuming the issuance of up to 8,000,000 shares
of our common stock based on an assumed sales price of $10.00 per
share, which is the minimum sales price authorized by our board of
directors). The actual number of shares issued will vary depending
on the sales price under this offering.
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Plan of Distribution |
“At-the-market offering” that may be made from time to time through
our sales agent, Jefferies. See “Plan
of Distribution”
on page
14
of this prospectus.
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Use of Proceeds |
We intend to use the net proceeds from this offering to fund the
continued development of the product candidates in our pipeline and
for working capital and general corporate purposes. See
“Use
of Proceeds”
on page
8
of this prospectus.
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Risk Factors |
Investing in our common stock involves a high degree of risk. See
“Risk
Factors”
beginning on page
6
of this prospectus and other information included in this
prospectus and the documents incorporated by reference in this
prospectus for a discussion of factors you should carefully
consider before deciding to invest in shares of our common
stock.
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Nasdaq Global Select Market symbol |
HUMA |
The number of shares of common stock that will be outstanding after
this offering is based on 103,006,803 shares of common stock
outstanding as of June 30, 2022, and excludes the
following:
•517,506
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $1.29 per share under our 2005 Stock Option Plan,
of which all options were vested as of June 30, 2022;
•5,640,354
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $7.83 per share under our 2015 Omnibus Incentive
Plan, of which 4,236,395 options were vested as of June 30,
2022;
•742,135
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $7.42 per share under our 2021 Long-Term
Incentive Plan, of which 250 options were vested as of June 30,
2022;
•5,588,506
shares of common stock issuable upon the exercise of outstanding
warrants with a weighted average exercise price of $11.41 per
share;
•7,226,977
shares of our common stock reserved for future issuance as of June
30, 2022 under our 2021 Long-Term Incentive Plan; and
•1,030,033
shares of our common stock available for future issuance as of June
30, 2022 under our 2021 Employee Stock Purchase Plan.
In addition, unless we specifically state otherwise, all
information in this prospectus assumes no exercise of outstanding
options or warrants subsequent to June 30, 2022.
RISK FACTORS
An investment in our common stock involves a high degree of risk.
Our business, financial condition and results of operations could
be materially and adversely affected by any of these risks. If any
of these risks occur, the value of our common stock may decline and
you may lose all or part of your investment. Before investing in
our common stock, you should consider carefully the risk factors
set forth in this prospectus and contained in any free writing
prospectus with respect to this offering filed by us with the SEC,
along with the risk factors described in “Item 1A. Risk Factors” in
our Annual Report on Form 10-K for the year ended December 31,
2021, as updated by other filings we have made and will make with
the SEC incorporated by reference into this
prospectus.
Risks Related to This Offering
Management will have broad discretion over the use of the proceeds
from this offering, and may not use the proceeds
effectively.
Because we have not designated the amount of net proceeds from this
offering to be used for any particular purpose, our management will
have broad discretion as to the application of the net proceeds
from this offering and could use them for purposes other than those
contemplated at the time of the offering. Our management may use
the net proceeds for corporate purposes that may not improve our
financial condition or market value. Pending use, we may invest any
net proceeds from this offering in a manner that does not produce
income or loses value. Please see the section entitled
“Use
of Proceeds”
on page
8
of this prospectus for further information.
You may experience immediate dilution in the net tangible book
value per share of the common stock you purchase.
The shares sold in this offering will be sold from time to time at
various prices. The price per share of our common stock being
offered may, at the time of sale, be higher than the net tangible
book value per share of our common stock outstanding prior to this
offering. After giving effect to the assumed sale of shares of our
common stock in the aggregate amount of $80,000,000 at an assumed
public offering price of $10.00 per share, the minimum sales price
authorized by our board of directors, and after deducting
commissions and estimated offering expenses, our as adjusted net
tangible book value as of June 30, 2022 would have been $219.6
million, or $1.98 per share. This would represent an immediate
increase in net tangible book value of $0.60 per share to our
existing stockholders and an immediate decrease in as adjusted net
tangible book value of $8.02 per share to purchasers of our common
stock in this offering. Please see the section entitled
“Dilution”
on page
12
of this prospectus. Notwithstanding this illustration, because the
price per share of our common stock being offered may, at the time
of sale, be higher than the net tangible book value per share of
our common stock outstanding prior to this offering, there is still
a risk that you may experience immediate and substantial
dilution.
Issuances of shares of common stock or securities convertible into
or exercisable for shares of common stock following this offering,
as well as the exercise of options, will dilute your ownership
interests and may adversely affect the future market price of our
common stock.
As a development-stage company we will need additional capital to
fund the development and commercialization of our product
candidates. We may seek additional capital through a combination of
private and public equity offerings, debt financings, strategic
partnerships and alliances and licensing arrangements, which may
cause your ownership interest to be diluted. In addition, as of
June 30, 2022, there were options to purchase approximately
6,899,995 shares of our common stock outstanding at a weighted
average exercise price of $7.29 per share and warrants to purchase
approximately 5,588,506 shares of our common stock outstanding at a
weighted average exercise price of $11.41 per share. If these
securities are exercised, you may incur dilution. Moreover, to the
extent that we issue additional options or warrants to purchase, or
other securities convertible into or exchangeable for, shares of
our common stock in the future and those options, warrants or other
securities are exercised, converted or exchanged, stockholders may
experience dilution.
A substantial number of shares may be sold in the market following
this offering, which may depress the market price for our common
stock.
Sales of a substantial number of shares of our common stock in the
public market following this offering could cause the market price
of our common stock to decline. A substantial majority of the
outstanding shares of our common stock are, and all of the shares
sold in this offering upon issuance will be, freely tradable
without restriction or further registration under the Securities
Act, unless these shares are owned or purchased by “affiliates” as
that term is defined in Rule 144 under the Securities Act. In
addition, we have also registered the shares of common stock that
we may issue under our equity incentive plans. As a result, these
shares can be freely sold in the public market upon issuance,
subject to restrictions under securities laws.
It is not possible to predict the actual number of shares we will
sell under the Sales Agreement, or the gross proceeds resulting
from those sales.
Subject to certain limitations in the Sales Agreement and
compliance with applicable laws, we have the discretion to deliver
a placement notice to Jefferies at any time throughout the term of
the Sales Agreement. The number of shares that are sold through
Jefferies after delivering a placement notice will fluctuate based
on a number of factors, including the market price of our common
stock during the term of the Sales Agreement, the limits we set
with Jefferies in any applicable placement notice, and the demand
for our common stock during the term of the Sales Agreement.
Additionally, our board of directors could change the minimum sales
price that we are authorized to sell shares under the Sales
Agreement. Because the price per share of each share sold will
fluctuate during the term of the Sales Agreement, it is not
currently possible to predict the number of shares that will be
sold or the gross proceeds to be raised in connection with the
sales of shares of common stock offered under this
prospectus.
The market price and trading volume of our stock may be
volatile.
The trading price of our common stock has been, and may continue to
be, volatile and could be subject to wide fluctuations in response
to various factors, some of which are beyond our control. To date
during 2022, the closing price of our common stock has ranged from
$3.21 and $7.86 per share. In addition, the trading volume of our
common stock may fluctuate and cause significant price variations
to occur. In addition to the factors discussed in this
“Risk
Factors”
section and elsewhere in this prospectus or the documents
incorporated by reference herein, these factors
include:
•actual
or anticipated fluctuations in our quarterly and annual results and
those of other public companies in our industry;
•mergers
and strategic alliances in the industry in which we
operate;
•market
prices and conditions in the industry in which we
operate;
•changes
in government regulation;
•the
impact of the COVID-19 pandemic on our business and
operations;
•potential
or actual military conflicts or acts of terrorism;
•announcements
concerning Humacyte or our competitors; and
•the
general state of the securities markets.
These market and industry factors may materially reduce the market
price of our common stock, regardless of our operating
performance.
The stock market in general has, from time to time, experienced
extreme price and volume fluctuations. In addition, in the past,
following periods of volatility in the overall market and decreases
in the market price of a company’s securities, securities class
action litigation has often been instituted against these
companies. We have been in the past, and may continue to be,
subject to securities litigation, from time to time. Any litigation
that may be brought against us could result in substantial costs
and a diversion of our management’s attention and
resources.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate
sales proceeds of up to $80,000,000 from time to time. Because
there is no minimum offering amount required in this offering, the
actual total public offering amount, commissions and proceeds to
us, if any, are not determinable at this time. There can be no
assurance that we will sell any shares under or fully utilize the
Sales Agreement with Jefferies as a source of
financing.
We currently intend to use the net proceeds from the sale of the
securities offered hereby for working capital and general corporate
purposes, including expenses related to funding research and
development expenses for our clinical trials and pre-clinical
studies, manufacturing and other costs associated with advancing
our product candidates. Pending these uses, we expect to invest the
net proceeds in short-term U.S. treasury money market mutual
funds.
The amounts and timing of our actual expenditures will depend on
numerous factors, including the progress of our clinical trials and
other development efforts and other factors described under “Risk
Factors” in this prospectus and the documents incorporated by
reference herein, as well as the amount of cash used in our
operations. We may find it necessary or advisable to use the net
proceeds for other purposes, and we will have broad discretion in
the application of the net proceeds.
DESCRIPTION OF COMMON STOCK
We may issue, separately or together with, or upon conversion,
exercise or exchange of other securities, shares of our common
stock as set forth in the applicable prospectus supplement. The
following section describes the material features and rights of our
common stock, $0.0001 par value per share, and does not purport to
be complete. It is subject to, and qualified in its entirety by
reference to, our second amended and restated certificate of
incorporation (the “Charter”) and our By Laws (the “Bylaws”) and
applicable provisions of the Delaware General Corporation Law
(“DGCL”). Each of our Charter and Bylaws is incorporated by
reference as an exhibit to the registration statement of which this
prospectus forms a part.
General
As of the date of this prospectus, our authorized capital stock
consists of 270,000,000 shares, comprised of 250,000,000 shares of
common stock, $0.0001 par value per share, and 20,000,000 shares of
preferred stock, $0.0001 par value per share. As of August 22,
2022, there were 103,006,803 shares of our common stock outstanding
and no shares of preferred stock outstanding. Our common stock is
traded on Nasdaq under the symbol “HUMA.”
Common Stock
The Charter provides the following with respect to the rights,
powers, preferences and privileges of our common
stock.
Voting Rights
Holders of record of our common stock are entitled to one vote for
each share held on all matters to be voted upon by stockholders.
Unless specified in our Charter or Bylaws, or as required by
applicable provisions of the DGCL or applicable stock exchange
rules, the affirmative vote of a majority of our shares of common
stock that are voted is required to approve any such matter voted
on by our stockholders.
Our board of directors is divided into three classes, each of which
will generally serve for a term of three years with only one class
of directors being elected each year.
Dividend Rights
Subject to applicable law and the rights, if any, of the holders of
any series of our preferred stock then-outstanding, the holders of
our common stock are entitled to receive ratable dividends when, as
and if declared by our board of directors out of funds legally
available therefor and will share equally on a per share basis in
such dividends and distributions.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, after payment or
provision for payment of the debts and other liabilities of
Humacyte, the holders of shares of common stock are entitled to
receive all remaining assets of Humacyte available for distribution
to its stockholders, ratably in proportion to the number of shares
held by them, subject to applicable law and the rights, if any, of
the holders of any outstanding series of preferred
stock.
Other Rights
Our stockholders have no conversion, preemptive or other
subscription rights. There are no sinking fund or redemption
provisions applicable to the common stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Continental Stock Transfer & Trust Company.
Certain Anti-Takeover Provisions of Delaware Law and our Charter
and Bylaws
Delaware Anti-Takeover Statute
We are subject to the provisions of Section 203 of the DGCL
regulating corporate takeovers. This statute prevents certain
Delaware corporations, under certain circumstances and for three
years following the date that the stockholder became an interested
stockholder, as defined below, from engaging in a “business
combination” with:
•a
stockholder who owns 15% or more of our outstanding voting stock
(otherwise known as an “interested stockholder”);
•an
affiliate of an interested stockholder; or
•an
associate of an interested stockholder.
A “business combination” includes a merger or sale of more than 10%
of our assets. However, the above provisions of Section 203 do not
apply if:
•our
board of directors approves the transaction that made the
stockholder an interested stockholder, prior to the date of the
transaction;
•after
the completion of the transaction that resulted in the stockholder
becoming an interested stockholder, that stockholder owned at least
85% of our voting stock outstanding at the time the transaction
commenced, other than statutorily excluded shares of common stock;
or
•on
or subsequent to the date of the transaction, the transaction is
approved by our board of directors and authorized at a meeting of
our stockholders, and not by written consent, by an affirmative
vote of at least two-thirds of the outstanding voting stock not
owned by the interested stockholder.
Classified Board of Directors
Our board of directors is divided into three classes, Class I,
Class II and Class III, with members of each class serving
staggered three-year terms. Our Charter provides that the
authorized number of directors may be changed only by resolution of
the board of directors. As a result, in most circumstances, a
person can gain control of our board only by successfully engaging
in a proxy contest at two or more annual meetings. Subject to the
terms of any preferred stock, any or all of the directors may be
removed from office at any time, but only for cause and only by the
affirmative vote of holders of 66 2/3% of the voting power of all
then outstanding shares of our capital stock entitled to vote
generally in the election of directors, voting together as a single
class. Any vacancy on our board of directors, including a vacancy
resulting from an enlargement of our board of directors, may be
filled only by vote of a majority of our directors then in
office.
Authorized but Unissued Shares
Our authorized but unissued common stock and preferred stock are
available for future issuances without stockholder approval and
could be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, acquisitions and
employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could render more
difficult or discourage an attempt to obtain control of us by means
of a proxy contest, tender offer, merger or otherwise.
Stockholder Action and Special Meetings
Our Charter provides that any action required or permitted to be
taken by the stockholders of the Company must be effected by a duly
called annual or special meeting of such stockholders and may not
be effected by written consent of the stockholders. Our Charter
further provides that meetings of stockholders of the Company may
be called only by the Chairman of the board of directors, the Chief
Executive Officer of the Company, or the board of directors
pursuant to a resolution adopted by a majority of thereof, and that
the ability of the stockholders of the Company to call a special
meeting is specifically denied.
Exclusive Forum Selection
Our Charter requires, to the fullest extent permitted by law, that
derivative actions brought in our name, actions against directors,
officers and employees for breach of fiduciary duty, arising
pursuant to any provision of the DGCL, Charter or Bylaws, or
governed by the internal affairs doctrine, may be brought only in
the Court of Chancery in the State of Delaware and, if brought
outside of Delaware, the stockholder bringing the suit will be
deemed to have consented to service of process on such
stockholder’s counsel except any action (i) as to which the Court
of Chancery in the State of Delaware determines that there is an
indispensable party not subject to the jurisdiction of the Court of
Chancery (and the indispensable party does not consent to the
personal jurisdiction of the Court of Chancery within 10 days
following such determination), (ii) which is vested in the
exclusive jurisdiction of a court or forum other than the Court of
Chancery or (iii) for which the Court of Chancery does not have
subject matter jurisdiction. Any person or entity purchasing or
otherwise acquiring any interest in shares of our capital stock
shall be deemed to have notice of and consented to the forum
provisions in the Charter.
This choice of forum provision may limit a stockholder’s ability to
bring a claim in a judicial forum that it finds favorable for
disputes with us or any of our directors, officers, other employees
or stockholders, which may discourage lawsuits with respect to such
claims. We cannot be certain that a court will decide that this
provision is either applicable or enforceable, and if a court were
to find the choice of forum provision contained in our Charter to
be inapplicable or unenforceable in an action, we may incur
additional costs associated with resolving such action in other
jurisdictions.
Our Charter provides that the exclusive forum provision is
applicable to the fullest extent permitted by applicable law.
Notwithstanding the foregoing, the choice of forum provision will
not apply to claims brought to enforce any liability or duty
created by the Securities Act, the Exchange Act, or any other claim
for which the federal courts have exclusive jurisdiction. Unless
the Company consents in writing to the selection of an alternative
forum, Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all suits brought to enforce any duty or
liability created by the Exchange Act or the rules and regulations
thereunder. As a result, the exclusive forum provision will not
apply to suits brought to enforce any duty or liability created by
the Exchange Act or any other claim for which the federal courts
have exclusive jurisdiction.
DILUTION
If you invest in our common stock in this offering, your ownership
interest may be diluted to the extent of the difference between the
public offering price per share of our common stock and the as
adjusted net tangible book value per share of our common stock
immediately after this offering.
As of June 30, 2022, our net tangible book value was
$142.3 million, or $1.38 per share of common stock. Net
tangible book value per share represents the amount of our total
tangible assets less total liabilities, divided by 103,006,803, the
number of shares of common stock outstanding as of June 30,
2022.
After giving effect to the assumed sale of our common stock in the
aggregate amount of $80,000,000 at an assumed offering price of
$10.00 per share, the minimum sales price authorized by our board
of directors, and after deducting commissions and estimated
offering expenses payable by us, our as adjusted net tangible book
value as of June 30, 2022 would have been $219.6 million, or $1.98
per share of common stock. This amount would represent an immediate
increase in net tangible book value of $0.60 per share to our
existing stockholders and an immediate decrease in net tangible
book value of $8.02 per share to investors purchasing shares in
this offering.
The following table illustrates this calculation on a per share
basis. The as adjusted information is illustrative only and will
adjust based on the actual price to the public, the actual number
of shares sold and other terms of the offering determined at the
time shares of our common stock are sold pursuant to this
prospectus. The shares sold in this offering, if any, will be sold
from time to time at various prices. Therefore, while this
illustration reflects accretion to investors purchasing shares in
this offering, depending on the price at which shares are sold in
this offering, investors purchasing shares in this offering may
experience dilution.
|
|
|
|
|
|
|
|
|
|
Assumed public offering price per share |
|
$ |
10.00 |
|
|
Net tangible book value per share as of June 30, 2022 |
$ |
1.38 |
|
|
|
Increase in net tangible book value per share attributable to
investors purchasing shares in this offering |
$ |
0.60 |
|
|
|
As adjusted net tangible book value per share as of June 30, 2022,
after giving effect to this offering |
|
$ |
1.98 |
|
|
Dilution per share to investors purchasing our common stock in this
offering |
|
$ |
(8.02) |
|
The table above assumes for illustrative purposes that an aggregate
of 8,000,000 shares of our common stock are sold pursuant to this
prospectus at a price of $10.00 per share, the minimum sales price
authorized by our board of directors, for aggregate gross proceeds
of $80,000,000. The shares sold in this offering, if any, will be
sold from time to time at various prices pursuant to the Sales
Agreement with the Sales Agents. A $1.00 increase in the assumed
public offering price of $10.00 per share, which is the minimum
sales price authorized by our board of directors, would increase
our as adjusted net tangible book value per share to $1.99,
resulting in dilution to investors purchasing shares in this
offering of $9.01 per share, after deducting commissions and
estimated offering expenses payable by us.
The foregoing table and calculations are based on 103,006,803
shares of our common stock outstanding as of June 30, 2022, and
exclude:
•517,506
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $1.29 per share under our 2005 Stock Option Plan,
of which all options were vested as of June 30, 2022;
•5,640,354
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $7.83 per share under our 2015 Omnibus Incentive
Plan, of which 4,236,395 options were vested as of June 30,
2022;
•742,135
shares of our common stock issuable upon the exercise of stock
options outstanding as of June 30, 2022 at a weighted-average
exercise price of $7.42 per share under our 2021 Long-Term
Incentive Plan, of which 250 options were vested as of June 30,
2022;
•5,588,506
shares of common stock issuable upon the exercise of outstanding
warrants with a weighted average exercise price of $11.41 per
share;
•7,226,977
shares of our common stock reserved for future issuance as of June
30, 2022 under our 2021 Long-Term Incentive Plan; and
•1,030,033
shares of our common stock available for future issuance as of June
30, 2022 under our 2021 Employee Stock Purchase Plan.
To the extent that outstanding options or warrants are exercised,
investors purchasing shares in this offering could experience
further dilution. In addition, we may choose to raise additional
capital due to market conditions or strategic considerations, even
if we believe we have sufficient funds for our current or future
operating plans. To the extent that additional capital is raised
through the sale of equity or equity-based securities, the issuance
of these securities could result in further dilution to our
stockholders.
PLAN OF DISTRIBUTION
We have entered into the Sales Agreement with Jefferies, under
which we may offer and sell up to $80,000,000 of our shares of
common stock from time to time through Jefferies acting as agent.
Sales of our shares of common stock, if any, under this prospectus
will be made by any method that is deemed to be an “at the market
offering” as defined in Rule 415(a)(4) under the Securities
Act.
Each time we wish to issue and sell our shares of common stock
under the Sales Agreement, we will notify Jefferies of the number
of shares to be issued, the dates on which such sales are
anticipated to be made, any limitation on the number of shares to
be sold in any one day and any minimum price below which sales may
not be made. Once we have so instructed Jefferies, unless Jefferies
declines to accept the terms of such notice, Jefferies has agreed
to use its commercially reasonable efforts consistent with its
normal trading and sales practices to sell such shares up to the
amount specified on such terms. The obligations of Jefferies under
the Sales Agreement to sell our shares of common stock are subject
to a number of conditions that we must meet.
The settlement of sales of shares between us and Jefferies is
generally anticipated to occur on the second trading day following
the date on which the sale was made. Sales of our shares of common
stock as contemplated in this prospectus will be settled through
the facilities of The Depository Trust Company or by such other
means as we and Jefferies may agree upon. There is no arrangement
for funds to be received in an escrow, trust or similar
arrangement.
We will pay Jefferies a commission equal to 3.0% of the aggregate
gross proceeds we receive from each sale of our shares of common
stock. Because there is no minimum offering amount required as a
condition to close this offering, the actual total public offering
amount, commissions and proceeds to us, if any, are not
determinable at this time. In addition, we have agreed to reimburse
Jefferies for the fees and disbursements of its counsel, payable
upon execution of the Sales Agreement, in an amount not to exceed
$75,000, in addition to certain ongoing disbursements of its legal
counsel. We estimate that the total expenses for the offering,
excluding any commissions or expense reimbursement payable to
Jefferies under the terms of the Sales Agreement, will be
approximately $258,000. The remaining sale proceeds, after
deducting any other transaction fees, will equal our net proceeds
from the sale of such shares.
Jefferies will provide written confirmation to us before the open
on The Nasdaq Global Select Market on the day following each day on
which our shares of common stock are sold under the Sales
Agreement. Each confirmation will include the number of shares sold
on that day, the aggregate gross proceeds of such sales and the
proceeds to us.
In connection with the sale of our shares of common stock on our
behalf, Jefferies will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation of Jefferies
will be deemed to be underwriting commissions or discounts. We have
agreed to indemnify Jefferies against certain civil liabilities,
including liabilities under the Securities Act. We have also agreed
to contribute to payments Jefferies may be required to make in
respect of such liabilities.
The offering of our shares of common stock pursuant to the Sales
Agreement will terminate upon the earlier of (i) the sale of all
shares of common stock subject to the Sales Agreement and (ii) the
termination of the Sales Agreement as permitted therein. We and
Jefferies may each terminate the Sales Agreement at any time upon
ten trading days’ prior notice.
This summary of the material provisions of the Sales Agreement does
not purport to be a complete statement of its terms and conditions.
A copy of the Sales Agreement is filed as an exhibit to the
registration statement of which this prospectus forms a
part.
Jefferies and its affiliates may in the future provide various
investment banking, commercial banking, financial advisory and
other financial services for us and our affiliates, for which
services they may in the future receive customary fees. In the
course of its business, Jefferies may actively trade our securities
for its own account or for the accounts of customers, and,
accordingly, Jefferies may at any time hold long or short positions
in such securities.
This prospectus in electronic format may be made available on a
website maintained by Jefferies, and Jefferies may distribute this
prospectus electronically.
LEGAL MATTERS
The validity of the securities by this prospectus will be passed
upon for us by Covington & Burling LLP, Washington, D.C.
Goodwin Procter LLP, New York, New York is counsel for Jefferies in
connection with this offering.
EXPERTS
The financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended
December 31, 2021 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to the securities being
offered by this prospectus. This prospectus, which constitutes part
of the registration statement, does not contain all of the
information in the registration statement and its exhibits. For
further information with respect to us and our securities offered
by this prospectus, we refer you to the registration statement and
its exhibits. Statements contained in this prospectus as to the
contents of any contract or any other document referred to are not
necessarily complete, and in each instance, we refer you to the
copy of the contract or other document filed as an exhibit to the
registration statement. Each of these statements is qualified in
all respects by this reference. You can read our SEC filings,
including the registration statement, over the internet at the
SEC’s website at www.sec.gov.
We are subject to the information reporting requirements of the
Exchange Act, and we file reports, proxy statements and other
information with the SEC. These reports, proxy statements and other
information are available for review at the SEC’s website at
www.sec.gov. We also maintain a website at www.humacyte.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. Humacyte’s website and the information
contained on, or that can be accessed through, such website are not
deemed to be incorporated by reference in, and are not considered
part of, this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” into this
prospectus the information in documents we file with the SEC, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be a part of this prospectus and should
be read with the same care. When we update the information
contained in documents that have been incorporated by reference by
making future filings with the SEC, the information incorporated by
reference into this prospectus is considered to be automatically
updated and superseded. In other words, in all cases, if you are
considering whether to rely on information contained in this
prospectus or information incorporated by reference into this
prospectus, you should rely on the information contained in the
document that was filed later. We incorporate by reference (other
than any information furnished to, rather than filed with, the SEC,
unless expressly stated otherwise therein) the documents listed
below (File No. 001-39532 unless otherwise stated), which are
considered to be a part of this prospectus:
•our
Annual Report on
Form 10-K
for the year ended December 31, 2021, filed with the SEC on March
29, 2022 (including the portions of our
Definitive Proxy Statement on Schedule 14A,
filed with the SEC on April 29, 2022, incorporated by reference
therein);
•our
Quarterly Reports on Form 10-Q for the quarter ended
March 31, 2022,
filed May 13, 2022 and for the quarter ended
June 30, 2022,
filed August 12, 2022;
•Our
Current Report on
Form 8-K
(other than any items, exhibits or portions thereof furnished to,
rather than field with, the SEC) filed with the SEC on June 13,
2022; and
•the
description of our common stock contained in
Exhibit 4.6
of our Annual Report on Form 10-K for the fiscal year ended
December 31, 2021, filed with the SEC on March 29,
2022.
All reports and other documents we subsequently file with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until
our offering is completed, including all such reports and other
documents filed with the SEC after the date of the initial filing
of the registration statement of which this prospectus forms a part
and prior to the effectiveness of such registration statement, will
also be incorporated by reference into this prospectus and deemed
to be part hereof (other
than any information furnished to, rather than filed with, the SEC,
unless expressly stated otherwise therein). The information
contained in any such filing will be deemed to be a part of this
prospectus commencing on the date on which the document is
filed.
Any documents incorporated by reference into this prospectus are
available without charge to you, upon written request by contacting
our Investor Relations department at Investor Relations, Humacyte,
Inc., 2525 East North Carolina Highway 54, Durham, North Carolina
27713.
PROSPECTUS
Up to $80,000,000
Common Stock
Jefferies
, 2022.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable by us
in connection with the sale and distribution of the securities
being registered hereby.
|
|
|
|
|
|
|
Amount to be paid |
|
SEC registration fee |
$ |
27,810 |
|
|
FINRA filing fee |
$ |
45,500 |
|
|
Legal fees and expenses |
* |
|
Accounting fees and expenses |
* |
|
Printing fees |
* |
|
Trustee and depositary fees and expenses |
* |
|
Blue sky fees and expenses |
* |
|
Rating agency fees |
* |
|
Listing fees and expenses |
* |
|
Miscellaneous |
* |
|
Total |
* |
* The fees and expenses are variable based on the securities
offered and the number of issuances and accordingly cannot be
estimated at this time. The applicable prospectus supplement will
set forth an estimate of such expenses incurred in connection with
securities to be offered and sold pursuant to this registration
statement.
Item 15. Indemnification of Directors and Officers.
Our second amended and restated certificate of incorporation (our
“Charter”) provides that all of our directors, officers, employees
and agents shall be entitled to be indemnified by us to the fullest
extent permitted by Section 145 of the Delaware General Corporation
Law (“DGCL”). Section 145 of the DGCL concerning indemnification of
officers, directors, employees and agents is set forth
below.
Section 145. Indemnification of officers, directors, employees and
agents; insurance.
(a)A
corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person’s
conduct was unlawful.
(b)A
corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation and except that no
indemnification shall be made in respect of 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 the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all 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.
(c)To
the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection
therewith.
(d)Any
indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (1) by
a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or
(3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or
(4) by the stockholders.
(e)Expenses
(including attorneys’ fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including
attorneys’ fees) incurred by former officers and directors or other
employees and agents may be so paid upon such terms and conditions,
if any, as the corporation deems appropriate.
(f)The
indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official
capacity and as to action in another capacity while holding such
office. A right to indemnification or to advancement of expenses
arising under a provision of the certificate of incorporation or a
bylaw shall not be eliminated or impaired by an amendment to such
provision after the occurrence of the act or omission that is the
subject of the civil, criminal, administrative or investigative
action, suit or proceeding for which indemnification or advancement
of expenses is sought, unless the provision in effect at the time
of such act or omission explicitly authorizes such elimination or
impairment after such action or omission has occurred.
(g)A
corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the corporation would
have the power to indemnify such person against such liability
under this section.
(h)For
purposes of this section, references to “the corporation” shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation
if its separate existence had continued.
(i)For
purposes of this section, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include
any excise taxes assessed on a person with respect to any employee
benefit plan; and references to “serving at the request of the
corporation” shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests
of the corporation” as referred to in this section.
(j)The
indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k)The
Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any by law,
agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation’s obligation to advance expenses (including attorneys’
fees).
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 of expenses incurred or paid by a director, officer or
controlling person in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to the 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.
In accordance with Section 102(b)(7) of the DGCL, our Charter
provides that no director shall be personally liable to us or any
of our stockholders for monetary damages resulting from breaches of
their fiduciary duty as directors, except to the extent such
limitation on or exemption from liability is not permitted under
the DGCL. The effect of this provision of our Charter is to
eliminate our rights and those of our stockholders (through
stockholders’ derivative suits on our behalf) to recover monetary
damages against a director for breach of the fiduciary duty of care
as a director, including breaches resulting from negligent or
grossly negligent behavior, except, as restricted by Section
102(b)(7) of the DGCL. However, this provision does not limit or
eliminate our rights or the rights of any stockholder to seek
non-monetary relief, such as an injunction or rescission, in the
event of a breach of a director’s duty of care.
If the DGCL is amended to authorize corporate action further
eliminating or limiting the liability of directors, then, in
accordance with our Charter, the liability of our directors to us
or our stockholders will be eliminated or limited to the fullest
extent authorized by the DGCL, as so amended. Any repeal or
amendment of provisions of our Charter limiting or eliminating the
liability of directors, whether by our stockholders or by changes
in law, or the adoption of any other provisions inconsistent
therewith, will (unless otherwise required by law) be prospective
only, except to the extent such amendment or change in law permits
us to further limit or eliminate the liability of directors on a
retroactive basis.
Our Charter also provides that we will, to the fullest extent
authorized or permitted by applicable law, indemnify our current
and former officers and directors, as well as those persons who,
while directors or officers of our corporation, are or were serving
as directors, officers, employees or agents of another entity,
trust or other enterprise, including service with respect to an
employee benefit plan, in connection with any threatened, pending
or completed proceeding, whether civil, criminal, administrative or
investigative, against all expense, liability and loss (including,
without limitation, attorney’s fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid in settlement) reasonably
incurred or suffered by any such person in connection with any such
proceeding.
Notwithstanding the foregoing, a person eligible for
indemnification pursuant to our Charter will be indemnified by us
in connection with a proceeding initiated by such person only if
such proceeding was authorized by our board of directors, except
for proceedings to enforce rights to indemnification.
The right to indemnification which is conferred by our Charter is a
contract right that includes the right to be paid by us the
expenses incurred in defending or otherwise participating in any
proceeding referenced above in advance of its final
disposition, provided, however, that if the DGCL requires, an
advancement of expenses incurred by our officer or director (solely
in the capacity as an officer or director of our corporation) will
be made only upon delivery to us of an undertaking, by or on behalf
of such officer or director, to repay all amounts so advanced if it
is ultimately determined that such person is not entitled to be
indemnified for such expenses under our Charter or
otherwise.
The rights to indemnification and advancement of expenses will not
be deemed exclusive of any other rights which any person covered by
our Charter may have or hereafter acquire under law, our Charter,
our bylaws (the “Bylaws”), an agreement, vote of stockholders or
disinterested directors, or otherwise.
Any repeal or amendment of provisions of our Charter affecting
indemnification rights, whether by our stockholders or by changes
in law, or the adoption of any other provisions inconsistent
therewith, will (unless otherwise required by law) be prospective
only, except to the extent such amendment or change in law permits
us to provide broader indemnification rights on a retroactive
basis, and will not in any way diminish or adversely affect any
right or protection existing at the time of such repeal or
amendment or adoption of such inconsistent provision with respect
to any act or omission occurring prior to such repeal or amendment
or adoption of such inconsistent provision. Our Charter will also
permit us, to the extent and in the manner authorized or permitted
by law, to indemnify and to advance expenses to persons other that
those specifically covered by our Charter.
Our Bylaws include the provisions relating to advancement of
expenses and indemnification rights consistent with those which are
set forth in our Charter. In addition, our Bylaws provide for a
right of indemnity to bring a suit in the event a claim for
indemnification or advancement of expenses is not paid in full by
us within a specified period of time. Our Bylaws also permit us to
purchase and maintain insurance, at our expense, to protect us
and/or any director, officer, employee or agent of our corporation
or another entity, trust or other enterprise against any expense,
liability or loss, whether or not we would have the power to
indemnify such person against such expense, liability or loss under
the DGCL.
Any repeal or amendment of provisions of our Bylaws affecting
indemnification rights, whether by our board of directors,
stockholders or by changes in applicable law, or the adoption of
any other provisions inconsistent therewith, will (unless otherwise
required by law) be prospective only, except to the extent such
amendment or change in law permits us to provide broader
indemnification rights on a retroactive basis, and will not in any
way diminish or adversely affect any right or protection existing
thereunder with respect to any act or omission occurring prior to
such repeal or amendment or adoption of such inconsistent
provision.
In connection with our consummation of the Merger, we entered into
customary indemnification agreements with our directors and
executive officers.
Item 16. Exhibits.
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Exhibit Number |
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Description |
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1.1 * |
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Form of Underwriting Agreement. |
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1.2 |
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3.1 |
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3.2 |
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4.1 |
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4.2* |
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Form of certificate of designation with respect to any preferred
stock. |
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4.3* |
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Form of preferred stock certificate. |
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4.4* |
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Form of warrant agreement. |
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4.5* |
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Form of warrant certificate. |
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4.6 |
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4.7 |
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4.8 |
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4.9 |
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4.10* |
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Form of subscription rights agreement. |
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4.11* |
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Form of subscription rights certificate. |
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4.12* |
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Form of unit agreement. |
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4.13* |
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Form of unit certificate. |
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5.1 |
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5.2 |
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23.1 |
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23.2 |
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23.3 |
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24.1 |
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25.1 ** |
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Statement of Eligibility of Trustee on Form T-1 under Trust
Indenture Act of 1939. |
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107 |
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* To be filed by amendment or as an exhibit
to a document filed under the Exchange Act and incorporated by
reference herein.
** To be filed separately pursuant to
Section 305(b)(2) of the Trust Indenture Act of 1939, and the rules
and regulations thereunder.
Item 17. Undertakings.
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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 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 the undertakings set forth in paragraphs (1)(i), (1)(ii) and
(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 SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this 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 purpose of determining liability under the Securities
Act 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)(1)(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 such 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 Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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 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 U.S. Securities and Exchange Commission 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 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 Securities 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 in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the
Trust Indenture Act.
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
Durham, State of North Carolina, on September 1, 2022.
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HUMACYTE, INC. |
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By: |
/s/ Laura E. Niklason |
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Name: Laura E. Niklason, M.D., Ph.D. |
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Title: President and Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned directors and officers of Humacyte, Inc. (the
“Registrant”) hereby severally constitute and appoint Laura
E.
Niklason
and Dale A. Sander with full power of substitution, our true and
lawful attorneys-in-fact and agents for and in his name, place and
stead and on his behalf, and in any and all capacities, to execute
any and all amendments (including post-effective amendments) to the
within registration statement (as well as any registration
statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same,
together with all exhibits thereto and all other documents in
connection therewith, with the Securities and Exchange Commission
and such other agencies, offices and persons as may be required by
applicable law, granting unto each said attorney-in-fact and agent,
each acting alone, full power and authority to do and perform each
and every act and thing which said attorney-in-fact and agent may
deem necessary or advisable to be done or performed in connection
with any or all of the above-described matters, as fully as each of
the undersigned could do if personally present and acting, hereby
ratifying and confirming all that each said attorney-in-fact and
agent, each acting alone, or his substitute or substitutes, 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:
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Name |
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Title |
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Date |
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/s/ Laura E. Niklason |
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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September 1, 2022
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Laura E. Niklason, M.D., Ph.D. |
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/s/ Dale A. Sander |
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Chief Financial Officer, Chief Corporate Development Officer and
Treasurer
(Principal Financial and Accounting Officer) |
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September 1, 2022
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Dale A. Sander |
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Director |
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September 1, 2022
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Gordon M. Binder |
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/s/ Emery N. Brown |
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Director |
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September 1, 2022
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Emery N. Brown, M.D., Ph.D. |
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/s/ Michael T. Constantino |
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Director |
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September 1, 2022
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Michael T. Constantino |
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/s/ Brady W. Dougan |
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Director |
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September 1, 2022
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Brady W. Dougan |
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/s/ Todd M. Pope |
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Director |
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September 1, 2022
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Todd M. Pope |
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/s/ Diane Seimetz |
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Director |
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September 1, 2022
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Diane Seimetz |
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/s/ Kathleen Sebelius |
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Director |
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September 1, 2022
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Kathleen Sebelius |
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/s/ Rajiv Shukla |
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Director |
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September 1, 2022
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Rajiv Shukla |
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/s/ Max Wallace |
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Director |
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September 1, 2022
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Max Wallace, J.D. |
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/s/ Susan Windham-Bannister |
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Director |
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September 1, 2022
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Susan Windham-Bannister, Ph.D. |
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