Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-250083
PROSPECTUS
SUPPLEMENT
(To
Prospectus dated November 24, 2020)
4,500,000 Shares
|
|
|
|
Immunic,
Inc.
Common
Stock
|
|
|
|
We are
offering 4,500,000 shares of our common stock. Our common stock is listed on the Nasdaq Global Select Market under the symbol “IMUX”.
On July 14, 2021, the last reported sale price of our common stock on the Nasdaq Global Select Market was $11.89 per share.
Investing
in our common stock involves a high degree of risk. Please read the section titled “Risk Factors” beginning on page S-5 of
this prospectus supplement, page 5 of the accompanying prospectus, and in the documents incorporated by reference into this prospectus
supplement and the accompanying prospectus.
|
|
Per
Share
|
|
Total
|
Public offering price
|
|
$
|
10.00
|
|
|
$
|
45,000,000
|
|
Underwriting
discounts and commissions(1)
|
|
$
|
0.60
|
|
|
$
|
2,700,000
|
|
Proceeds to us before expenses
|
|
$
|
9.40
|
|
|
$
|
42,300,000
|
|
(1) The
underwriters will also be reimbursed for certain expenses incurred in this offering. See “Underwriting” for details.
Delivery
of the shares of common stock is expected to be made on or about July 19, 2021. We have granted the underwriters an option for a period
of 30 days to purchase up to an additional 675,000 shares of common stock. If the underwriters exercise the option in full,
the total underwriting discounts and commissions payable by us will be $3,105,000, and the total proceeds to us, before expenses, will
be $48,645,000.
Neither
the Securities and Exchange Commission nor any state securities commission has approved of anyone's investment in these securities or
determined if this prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
Sole
Book-Running Manager
Piper
Sandler
|
Co-Managers
|
|
|
|
|
Ladenburg Thalmann
|
Roth
Capital Partners
|
Aegis
Capital Corp.
|
The
date of this prospectus is July 15, 2021
TABLE
OF CONTENTS
PROSPECTUS
SUPPLEMENT
|
Page
|
ABOUT
THIS PROSPECTUS SUPPLEMENT
|
i
|
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
ii
|
PROSPECTUS
SUPPLEMENT SUMMARY
|
S-1
|
THE
OFFERING
|
S-4
|
RISK
FACTORS
|
S-5
|
USE
OF PROCEEDS
|
S-6
|
DIVIDEND
POLICY
|
S-7
|
DILUTION
|
S-8
|
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES FOR NON-U.S. HOLDERS OF OUR COMMON STOCK
|
S-9
|
UNDERWRITING
|
S-13
|
LEGAL
MATTERS
|
S-20
|
EXPERTS
|
S-20
|
WHERE
YOU CAN FIND MORE INFORMATION
|
S-21
|
INFORMATION
INCORPORATED BY REFERENCE
|
S-22
|
PROSPECTUS
|
Page
|
ABOUT THIS PROSPECTUS
|
1
|
WHERE YOU CAN FIND MORE INFORMATION
|
2
|
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
2
|
THE COMPANY
|
4
|
RISK FACTORS
|
5
|
USE OF PROCEEDS
|
5
|
DESCRIPTION OF CAPITAL STOCK WE MAY OFFER
|
6
|
DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
|
9
|
DESCRIPTION OF WARRANTS WE MAY OFFER
|
15
|
DESCRIPTION OF UNITS WE MAY OFFER
|
18
|
GLOBAL SECURITIES
|
19
|
PLAN OF DISTRIBUTION
|
22
|
LEGAL MATTERS
|
23
|
EXPERTS
|
23
|
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
document contains two parts. The first part is this prospectus supplement, which describes the specific terms of this offering and also
supplements and updates information contained in the accompanying prospectus and the documents incorporated by reference into this prospectus
supplement and the accompanying prospectus. The second part is the accompanying prospectus, which provides more general information,
some of which may not apply to this offering. Generally, when we refer only to the “prospectus,” we are referring to both
parts combined. If the information contained in this prospectus supplement differs or varies from the information contained in the accompanying
prospectus, you should rely on the information set forth in this prospectus supplement.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus
and any free writing prospectuses we have authorized for use in connection with this offering. We have not, and the underwriters have
not, authorized anyone else to provide you with information that is in addition to or different from that contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus, along with the information contained in any permitted free writing
prospectuses we have authorized for use in connection with this offering. This prospectus supplement and the accompanying prospectus
shall not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities to which the prospectus
supplement relates, or an offer of solicitation in any jurisdiction where offers or sales are not permitted.
The
information contained in this prospectus supplement and the accompanying prospectus is accurate only as of the date of this prospectus
supplement or the date of the accompanying prospectus, and the information in the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus is accurate only as of the date of those respective documents, regardless of the time of delivery
of this prospectus supplement and the accompanying prospectus or of any sale of our common stock. Our business, financial condition,
results of operations and prospects may have changed since those dates. It is important for you to read and consider all information
contained or incorporated by reference in this prospectus supplement and the accompanying prospectus when making your investment decision.
You should read both this prospectus supplement and the accompanying prospectus, as well as the documents incorporated by reference into
this prospectus supplement and the accompanying prospectus and the additional information described under “Where You Can Find More
Information” in this prospectus supplement and in the accompanying prospectus before investing in our common stock.
Unless
the context indicates otherwise, all references in this prospectus supplement to “Immunic,” “we,” “us,”
“the Company,” “our” and similar references refer to Immunic, Inc. and its consolidated subsidiaries.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying prospectus, and the documents we have filed with the Securities and Exchange Commission (the
“SEC”) that are incorporated herein by reference contain “forward-looking statements” within the meaning of Section
27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). These forward-looking statements are based on our current beliefs and assumptions concerning
various future events and involve numerous risks and uncertainties that could cause actual results to differ materially from expectations.
Forward-looking statements include all statements that are not historical facts and can be identified by such terms as “may,”
“will,” “expect,” “anticipate,” “intend,” “plan,” “believe,”
“estimate,” “predict,” “potential,” “might,” “could,” “would,”
“should” or similar expressions and the negatives of those terms. These forward-looking statements include, among other things,
statements about:
|
·
|
the
strategies, prospects, plans, expectations and objectives of management;
|
|
·
|
our
ability to regain or maintain compliance with Nasdaq listing standards;
|
|
·
|
strategies
with respect to our development programs;
|
|
·
|
our
estimates regarding expenses, capital requirements, projected cash requirements and needs
for additional financing;
|
|
·
|
possible
sources of funding for future operations;
|
|
·
|
our
ability to protect intellectual property rights and our intellectual property position;
|
|
·
|
future
economic conditions or performance;
|
|
·
|
proposed
products or product candidates;
|
|
·
|
our
ability to retain key personnel;
|
|
·
|
our
ability to maintain effective internal control over financial reporting;
|
|
·
|
our
expectations related to the use of proceeds from this offering;
|
|
·
|
the
accuracy of our estimates regarding future expenses, future revenues, capital requirements
and need for additional financing; and
|
|
·
|
beliefs
and assumptions underlying any of the foregoing.
|
Forward-looking
statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements
to be materially different from any future results, performance or achievements expressed or implied by any such forward-looking statements,
including those described in “Risk Factors” and elsewhere in this prospectus supplement, the accompanying prospectus, and
in the documents incorporated by reference into this prospectus supplement and the accompanying prospectus. Given these uncertainties,
you should not place undue reliance on these forward-looking statements. Also, forward-looking statements represent our management's
beliefs and assumptions only as of the date of this prospectus supplement. You should read this prospectus supplement and the accompanying
prospectus, and the documents incorporated by reference herein and therein, and with the understanding that our actual future results
may be materially different from what we expect.
Moreover,
neither we nor any other person assumes responsibility for the accuracy and completeness of these statements. Except as required by law,
we assume no obligation to update these forward-looking statements publicly and actual results could differ materially from those anticipated
in these forward-looking statements, even if new information becomes available in the future.
PROSPECTUS
SUPPLEMENT SUMMARY
This
summary highlights selected information contained elsewhere in, or incorporated by reference into, this prospectus supplement and
the accompanying prospectus. Because it is only a summary, it does not contain all of the information that you should consider before
investing in our common stock and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information
appearing elsewhere in this prospectus supplement, the accompanying prospectus, any free writing prospectus that we have authorized
for use in connection with this offering and the documents incorporated by reference in this prospectus supplement and the accompanying
prospectus. You should read all such documents carefully and you should pay special attention to the information contained under
the caption entitled “Risk Factors” in this prospectus supplement, in our Quarterly Reports on Form 10-Q and Annual Reports
on Form 10-K and in our other reports filed from time to time with the SEC, which are incorporated by reference into this prospectus
supplement and the accompanying prospectus, before deciding to buy shares of our common stock.
Company
Overview
We
are a clinical-stage biopharmaceutical company with a pipeline of selective oral immunology therapies focused on treating chronic
inflammatory and autoimmune diseases, including relapsing-remitting multiple sclerosis (“RRMS”), ulcerative colitis (“UC”),
Crohn’s disease (“CD”) and psoriasis. Our main operations are in Gräfelfing near Munich, Germany. We currently
have approximately 45 employees.
We
are currently pursuing three development programs. These include the IMU-838 program, which is focused on the development of oral
formulations of small molecule inhibitors of the enzyme dihydroorotate dehydrogenase (“DHODH”); the IMU-935 program,
which is focused on an inverse agonist of RORγt, an immune cell-specific isoform of retinoic acid receptor-related orphan nuclear
receptor gamma (“RORγ”); and the IMU-856 program, which involves the development of a drug targeting the restoration
of intestinal barrier function. In addition to these large markets, these products are also being developed to address certain rare
diseases with high unmet medical needs, such as primary sclerosing cholangitis (“PSC”) and Guillain-Barré syndrome
(“GBS”), as well as metastatic castration-resistant prostate cancer (“mCRPC”).
The
following table summarizes the potential indications, clinical targets and clinical development status of our three product candidates:
|
Our
most advanced drug candidate, IMU-838, targets DHODH, a key enzyme in the intracellular metabolism of immune cells in the body. In
the third quarter of 2020, we reported positive results from our phase 2 EMPhASIS trial of IMU-838 in RRMS, achieving both primary
and key secondary endpoints with high statistical significance. Our phase 3 ENSURE program of IMU-838 in RRMS, comprising twin studies
evaluating efficacy, safety, and tolerability of IMU-838 versus placebo, is expected to start in the second half of 2021. The supportive
phase 2 CALLIPER trial in progressive multiple sclerosis (“PMS”) is expected to start in the third quarter of 2021. In
the first quarter of 2021, we announced that IMU-838 showed evidence of clinical activity in our phase 2 CALVID-1 trial in hospitalized
patients with moderate COVID-19. Also, in the first quarter of 2021, we reported positive top-line data from an investigator-sponsored
phase 2 proof-of-concept clinical trial of IMU-838 in primary sclerosing cholangitis which was conducted in collaboration with the
Mayo Clinic. In addition, IMU-838 is currently being tested in a phase 2 trial in patients with ulcerative colitis (CALDOSE-1 trial).
Another investigator-sponsored phase 2 clinical trial of IMU-838 in combination with oseltamivir in moderate to severe COVID-19 is
ongoing in collaboration with the University Hospitals Coventry and Warwickshire NHS Trust (IONIC trial). If approved, we believe
that IMU-838 has the potential to be a first-in-class DHODH inhibitor in inflammatory bowel disease (“IBD”) and a best-in-class
DHODH inhibitor in RRMS. In addition, prior clinical data with IMU-838 in rheumatoid arthritis (“RA”), has contributed
to our understanding of the safety profile of the drug at doses consistent with those currently under evaluation for the treatment
of RRMS and IBD. Importantly, IMU-838 has an attractive pharmacokinetic, safety and tolerability profile and has already been tested
in more than 800 individuals to date.
Our
second drug candidate, IMU-935, is a highly potent and selective inverse agonist of a transcription factor called RORγt with
additional activity on DHODH. We believe that the nuclear receptor RORγt is the main driver for the differentiation of Th17
cells and the expression of cytokines involved in various inflammatory and autoimmune diseases. We believe this target is an attractive
alternative to approved antibodies for targets, such as interleukin-23 (“IL-23”), the IL-17 receptor and IL-17 itself.
We have observed strong cytokine inhibition targeting both Th1 and Th17 responses in preclinical testing, as well as indications
of activity in animal models for psoriasis and IBD. Preclinical experiments indicated that, while leading to a potent inhibition
of Th17 differentiation and cytokine secretion, IMU-935 did not affect thymocyte maturation. Based on these preclinical data, we
believe that IMU-935 has potential to be a best-in-class therapy for various autoimmune diseases. A phase 1 clinical trial exploring
safety, pharmacodynamics and pharmacokinetics of IMU-935 is currently ongoing.
Our
third program, IMU-856, which we believe to be novel, is an orally available, small molecule modulator that targets a protein which
serves as a transcriptional regulator of intestinal barrier function. We have not yet disclosed the molecular target for IMU-856.
Based on preclinical data, we believe this compound may represent a new treatment approach, as the mechanism of action targets the
restoration of the intestinal barrier function in patients suffering from diseases like IBD, irritable bowel syndrome with diarrhea,
immune checkpoint inhibitor induced colitis and other intestinal barrier function associated diseases. We believe that because IMU-856
avoids suppression of the immune functions, it may therefore maintain immune surveillance for patients. A phase 1 clinical trial
exploring safety, pharmacodynamics and pharmacokinetics of IMU-856 is currently ongoing.
Acquisition
History
Our
wholly-owned subsidiary Immunic AG acquired IMU-838 and IMU-935 in September 2016 from 4SC AG (“4SC”), a publicly traded
company based in Planegg-Martinsried near Munich, Germany, through asset acquisitions. On March 31, 2021, Immunic AG and 4SC entered
into a Settlement Agreement, pursuant to which Immunic AG settled its remaining obligation of a 4.4% royalty on net sales for $17.25
million. The payment was made 50% in cash and 50% in shares of Immunic’s common stock.
Our
rights to IMU-856 are secured pursuant to an option and license agreement (the “Daiichi Sankyo Option”) with Daiichi
Sankyo Co., Ltd. (“Daiichi Sankyo”) in Tokyo, Japan. On January 5, 2020, Immunic AG exercised its option under the Daiichi
Sankyo Option to acquire the exclusive global rights to commercialize IMU-856. The license also grants Immunic AG the rights to Daiichi
Sankyo’s patent application related to IMU-856. Concurrent with the option exercise, Immunic AG paid to Daiichi Sankyo a one-time
upfront licensing fee. Going forward, Daiichi Sankyo is eligible to receive future development, regulatory and sales milestone payments,
as well as royalties related to IMU-856.
|
Commercialization
Strategy
Our
products are being developed with the aim of delivering proof-of-efficacy in state-of-the-art clinical trials with multiple compounds
in multiple indications. Subsequent pivotal trials may be conducted by us alone or with a potential future partner.
We
expect to continue to lead most of our research and development activities from our Gräfelfing location, where dedicated scientific,
regulatory, clinical and medical teams conduct their activities. Due to these teams’ key relationships with local and international
service providers, we anticipate that this will result in timely, cost-effective execution of our development programs. In addition,
we intend to use our subsidiary based in Melbourne, Australia to expedite the early clinical trials for IMU-935 and IMU-856. We also
conduct preclinical work in Halle/Saale, Germany through a collaboration with the Fraunhofer Institute.
Recent
Developments
On
July 12, 2021, we provided an update on the preclinical and clinical development of IMU-935, announcing that:
· In
ex vivo mouse cell differentiation and maturation assays, IMU-935 was recently observed to selectively inhibit RORγt-dependent
gene expression during Th17 differentiation without affecting either RORγt-dependent gene regulation relevant to thymocyte
development, or the viability of these cells.
· Analysis
of the full pharmacokinetic data set from the completed single-ascending dose part of the ongoing phase 1 clinical trial of IMU-935,
which is being conducted in Australia, in healthy volunteers revealed dose-linear pharmacokinetics and a blood half-life that we
believe may be appropriate for once or twice daily dosing. Although the trial is still blinded, no significant safety findings have
been detected to date in the single-ascending dose cohort.
· In
preclinical studies, IMU-935 was observed to inhibit the mRNA and protein expression of mutated AR-V7, and the tumor growth of prostate
cancer cell lines in vitro. Finally, we believe IMU-935's potency in inhibiting tumorigenesis-promoting IL-17 and Th17 cells
in vitro may result in further antitumoral activity in humans.
· Based
on these strong preclinical results, we are currently preparing an open-label phase 1 dose escalation trial designed to establish
a recommended phase 2 dose and to assess safety, tolerability, anti-tumor activity, biomarkers and pharmacokinetics of IMU-935 in
patients with progressive mCRPC.
On
July 1, 2021, we announced U.S. Food and Drug Administration (“FDA”) clearance of our Investigational New Drug (“IND”)
application for the phase 3 ENSURE program of our lead asset IMU-838 in patients with RRMS. In addition, the FDA also cleared our
separate IND application for the supportive phase 2 CALLIPER trial of IMU-838 in patients with PMS.
Corporate
Information
Prior
to April 12, 2019, we were a clinical-stage biotherapeutic company known as Vital Therapies, Inc. that had historically been focused
on the development of a cell-based therapy targeting the treatment of acute forms of liver failure. Vital Therapies, Inc. was originally
incorporated in the State of California in May of 2003 as Vitagen Acquisition Corp., subsequently changed its name to Vital Therapies,
Inc. in June 2003, and reincorporated in Delaware in January 2004. On April 12, 2019, we completed an exchange transaction with Immunic
AG pursuant to which holders of ordinary shares of Immunic AG exchanged all of their shares for shares of our common stock, resulting
in Immunic AG becoming our wholly owned subsidiary. Following the exchange, we changed our name to Immunic, Inc. and we became a
clinical-stage biopharmaceutical company focused on the development of selective oral therapies in immunology with the goal of becoming
a leader in treatments for chronic inflammatory and autoimmune diseases.
Our
corporate headquarters are located at 1200 Avenue of the Americas, Suite 200, New York, New York 10036. We also have an office at
Lochhamer Schlag 21, 82166 Gräfelfing, Germany. Our telephone number is (333) 255-9818. We maintain a website at www.imux.com.
The information contained on, or that can be accessed through, our website is not a part of this prospectus supplement. Investors
should not rely on any such information in deciding whether to purchase our common stock. We have included our website address in
this prospectus supplement solely as an inactive textual reference.
Our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports filed
or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act are available free of charge through the investor relations page
of our internet website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the
SEC.
|
THE
OFFERING
|
Common stock
offered
|
4,500,000
shares
|
Common stock outstanding
before this offering
|
21,749,439
shares
|
Common stock to be outstanding
after this offering
|
26,249,439 shares (26,924,439
shares if the underwriters exercise in full their option to purchase additional shares).
|
Underwriters’ option
|
We
have granted the underwriters an option for a period of 30 days after the date of the underwriting agreement to purchase up to 675,000 additional
shares of common stock.
|
Use of proceeds
|
We
intend to use the net proceeds from this offering to fund the ongoing clinical development of our three lead product candidates,
IMU-838, IMU-935 and IMU-856, and for other general corporate purposes. See the section titled “Use of Proceeds” in this
prospectus supplement for additional information.
|
Risk factors
|
Investing
in our common stock involves a high degree of risk and purchasers of shares of our common stock may lose their entire investment.
See the section titled “Risk Factors” in this prospectus supplement and in the documents incorporated by reference into
this prospectus supplement for a discussion of factors you should carefully consider before deciding to invest in our securities.
|
Nasdaq Global Select Market
symbol
|
“IMUX”
|
Unless
otherwise stated, all information in this prospectus supplement is based on 21,749,439 shares of common stock outstanding as of June
30, 2021, assumes no exercise of the underwriters’ option to purchase additional shares, and does not include 2,064,839 shares
of common stock issuable upon exercise of stock options outstanding.
|
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. Prior to deciding whether to invest in our common stock, you should carefully
consider the specific risks discussed in this prospectus supplement, the accompanying prospectus and in the documents incorporated by
reference in this prospectus supplement and the accompanying prospectus. The risks and uncertainties described herein and in our SEC
filings are not the only ones facing us. Additional risks and uncertainties not presently known to us, or that we currently see as immaterial,
may also harm our business. If any of the risks or uncertainties described in this prospectus supplement, the accompanying prospectus
or in the documents incorporated by reference in this prospectus supplement and the accompanying prospectus or any such additional risks
and uncertainties actually occur, our business, results of operations, cash flows, financial condition and prospects could be materially
and adversely affected. In that case, the trading price of our common stock could decline, and you might lose part or all of your investment.
Risks
Related to this Offering
Our
management has broad discretion as to the use of the net proceeds from this offering.
We
cannot specify with certainty the particular uses of the net proceeds we will receive from this offering, and these uses may vary from
our current plans. Our management will have discretion in the application of the net proceeds, including for general corporate purposes
as described in “Use of Proceeds.” Accordingly, you will have to rely upon the judgment of our management with respect to
the use of the net proceeds from this offering. Our management may spend a portion or all of the net proceeds from this offering in ways
that holders of our common stock may not desire or that may not yield a significant return or any return at all. Pending their use, we
may also invest the net proceeds from this offering in a manner that does not produce income or that loses value. The failure by our
management to apply these funds effectively could harm our business and cause the price of our common stock to decline.
If
you purchase our common stock in this offering, you may incur immediate and substantial dilution in the book value of your shares.
The
offering price per share of common stock in this offering exceeds the net tangible book value per share of our common stock outstanding
prior to this offering. Therefore, if you purchase common stock in this offering, you may pay a price per share that exceeds our as adjusted
net tangible book value per share of common stock. Upon the sale of 4,500,000 shares of our common stock at $10.00 per
share, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us, you will experience
immediate dilution of $4.42 per share, representing the difference between our as adjusted net tangible book value per share after
giving effect to this offering, and the public offering price for shares in this offering. To the extent outstanding options or other
rights to purchase our common stock are exercised, you will experience further dilution. In addition, to the extent we raise additional
capital by issuing equity securities, our stockholders may experience substantial dilution. See the section titled “Dilution”
below for a more detailed illustration of the dilution you will incur if you participate in this offering.
We
will require additional capital funding, the receipt of which may impair the value of our common stock.
Our
future capital requirements depend on many factors, including our clinical trial, research, development, sales and marketing activities.
We will need to raise additional capital through public or private equity or debt offerings or through arrangements with strategic partners
or other sources in order to continue to develop our drug candidates. There can be no assurance that additional capital will be available
when needed or on terms satisfactory to us, if at all. To the extent we raise additional capital by issuing equity securities, our stockholders
may experience substantial dilution and the new equity securities may have greater rights, preferences or privileges than our existing
common stock. Further, we have a significant number of stock options outstanding. The exercise of outstanding stock options may result
in further dilution of your investment.
If
securities or industry analysts issue an adverse opinion regarding our common stock, the price and trading volume of our common stock
could decline.
The trading
market for our common stock is influenced by, among other things, the research and reports that securities or industry analysts may publish
about us, our business, our market or our competitors. If any of the analysts who may cover us adversely change their recommendation
regarding our common stock, or provide more favorable relative recommendations about our competitors, the trading price of our common
stock could decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us,
we could lose visibility in the financial markets, which in turn could cause the trading price of our common stock or trading volume
to decline.
USE
OF PROCEEDS
We
estimate that the net proceeds we will receive from this offering will be approximately $42.0 million (or approximately $48.3 million
if the underwriters exercise their option to purchase additional shares in full), after deducting underwriting discounts and commissions
and estimated offering expenses payable by us.
We
intend to use the net proceeds from this offering to fund the ongoing clinical development of our three lead product candidates, IMU-838,
IMU-935 and IMU-856, and for other general corporate purposes.
Our
expected use of the net proceeds to us from this offering represents our current intentions based upon our present plans and business
condition. The amounts and timing of our actual expenditures will depend on numerous factors, including the progress of our research
and development efforts, the status of and results from our current or future clinical trials, the timing of regulatory submissions and
any unforeseen cash needs. Accordingly, our management will have broad discretion in the application of any net proceeds from this offering.
We
believe that the anticipated net proceeds from this offering, together with our existing cash and cash equivalents, will enable us to
fund our operating expenses and capital expenditure requirements into 2023.
Until
we use the net proceeds of this offering for the purposes described above, we intend to invest any funds we receive in short-term, investment-grade,
interest-bearing instruments and U.S. government securities. We cannot predict whether these investments will yield a favorable return.
DIVIDEND
POLICY
We
have never declared or paid any cash dividends on our shares of common stock and do not anticipate paying any cash dividends in the foreseeable
future. Payment of cash dividends, if any, in the future will be at the discretion of our board of directors and will depend on then-existing
conditions, including our financial condition, operating results, contractual restrictions, capital requirements, business prospects
and other factors our board of directors may deem relevant.
DILUTION
If
you invest in our common stock in this offering, your interest will be diluted immediately to the extent of the difference between our
as adjusted net tangible book value per share after giving effect to this offering, and the public offering price for shares in this
offering. Our net tangible book value as of March 31, 2021 was approximately $104.5 million or $4.80 per share. Net tangible book value
per share is determined by dividing our assets, less goodwill and total liabilities, by the number of shares of our common stock outstanding
as of March 31, 2021.
After
giving effect to the issuance and sale of 4,500,000 shares in this offering at the public offering price of $10.00 per share, and
after deducting underwriting discounts and commissions and estimated offering expenses payable by us, our as adjusted net tangible book
value as of March 31, 2021, would have been approximately $146.5 million, or $5.58 per share. This represents an immediate increase in
net tangible book value of $0.78 per share to existing stockholders and immediate dilution of $4.42 per share to investors
purchasing our shares in this offering at the public offering price. The following table illustrates this dilution on a per share basis:
Public offering price per share
|
|
|
|
|
|
$
|
10.00
|
|
Net tangible book value per share of as March
31, 2021
|
|
$
|
4.80
|
|
|
|
|
|
Increase in net tangible
book value per share attributable to investors purchasing shares in this offering
|
|
$
|
0.78
|
|
|
|
|
|
As adjusted net tangible
book value per share after giving effect to this offering
|
|
|
|
|
|
$
|
5.58
|
|
Dilution per share to investors
in this offering
|
|
|
|
|
|
$
|
4.42
|
|
The
foregoing table and calculations are based on 21,749,439 shares outstanding as of March 31, 2021 and do not include 2,064,839 shares
of common stock issuable upon exercise of stock options outstanding.
If
the underwriters’ option to purchase 675,000 additional shares from us is exercised in full, and based on a public offering price
of $10.00 per share, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us, the as
adjusted net tangible book value per share after this offering would be approximately $5.68 per share, the increase in the as adjusted
net tangible book value per share would be approximately $0.87 per share and the dilution per share to new investors purchasing shares
in this offering would be approximately $4.32 per share.
In
addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe that we have
sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity
or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES
FOR
NON-U.S. HOLDERS OF OUR COMMON STOCK
The
following is a general discussion of material U.S. federal income tax considerations and certain U.S. federal estate tax considerations
relating to the acquisition, ownership, and disposition of our common stock applicable to non-U.S. holders that purchase our
common stock in this offering and hold it as a “capital asset” within the meaning of Section 1221 of the Code (generally,
property held for investment). For purposes of this discussion, a “non-U.S. holder” means a beneficial owner of
our common stock (other than an entity or arrangement that is treated as a partnership for U.S. federal income tax purposes) that is
not, for U.S. federal income tax purposes, any of the following:
|
·
|
an
individual who is a citizen or resident of the United States;
|
|
·
|
a
corporation (or entity treated as a corporation for United States federal income tax purposes)
created or organized in or under the laws of the United States, any state thereof or the
District of Columbia, or otherwise treated as a domestic corporation;
|
|
·
|
an
estate, the income of which is includable in gross income for U.S. federal income tax purposes
regardless of its source; or
|
|
·
|
a
trust if (i) a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more “United States persons,” as defined
under the U.S. Internal Revenue Code of 1986, as amended (the “Code”), (“U.S.
persons”) have the authority to control all substantial decisions of the trust or (ii)
such trust has made a valid election to be treated as a U.S. person for U.S. federal income
tax purposes.
|
If
a partnership (or other entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds our common stock,
the tax treatment of a partner therein will generally depend on the status of the partner and the activities of the partnership. Partners
of a partnership holding our common stock should consult their tax advisors as to the particular U.S. federal income tax consequences
applicable to them.
This
discussion is based on current provisions of the Code, final, temporary and proposed Treasury regulations promulgated thereunder (the
“Treasury Regulations”), judicial decisions, published rulings and administrative pronouncements of the U.S. Internal Revenue
Service, or IRS, all in effect as of the date of this prospectus supplement and all of which are subject to change or to differing interpretation,
possibly with retroactive effect. Any change could alter the tax consequences to non-U.S. holders described herein. There can
be no assurance that the IRS will not challenge one or more of the tax consequences described herein.
This
discussion does not address all aspects of U.S. federal income and estate taxation that may be relevant to a particular non-U.S. holder
in light of that non-U.S. holder’s individual circumstances nor does it address any aspects of U.S. state, local or non-U.S. taxes,
other U.S. federal tax, the alternative minimum tax, or the unearned income Medicare contribution tax on net investment income. This
discussion also does not consider any specific facts or circumstances that may apply to a non-U.S. holder and does not address
the special tax rules applicable to particular non-U.S. holders, such as:
|
·
|
banks,
insurance companies and other financial institutions;
|
|
·
|
brokers
or dealers or traders in securities;
|
|
·
|
tax-exempt
organizations;
|
|
·
|
persons
who hold our common stock as part of a straddle, hedge, conversion transaction, synthetic
security or other integrated investment or who have elected to mark securities to market;
|
|
·
|
controlled
foreign corporations, passive foreign investment companies, and corporations that accumulate
earnings to avoid U.S. federal income tax;
|
|
·
|
non-U.S.
governments; and
|
|
·
|
U.S.
expatriates and former citizens or long-term residents of the United States.
|
THIS
SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE DESCRIPTION OF ALL TAX CONSEQUENCES FOR NON-U.S. HOLDERS RELATING TO THE OWNERSHIP
AND DISPOSITION OF OUR COMMON STOCK. PROSPECTIVE HOLDERS OF OUR COMMON STOCK SHOULD CONSULT WITH THEIR TAX ADVISORS REGARDING THE TAX
CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL, NON-U.S. INCOME AND OTHER TAX LAWS) OF THE
ACQUISITION, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK.
Distributions
As
discussed under “Dividend Policy” above, we do not expect to make distributions on our common stock in the foreseeable future.
However, if we do make distributions of cash or property on our common stock, such distributions will constitute dividends for U.S. federal
income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income
tax principles. Amounts of distributions not treated as dividends for U.S. federal income tax purposes will first constitute a tax-free return
of capital of the non-U.S. holder’s investment and be applied against and reduce a non-U.S. holder’s
adjusted tax basis in its common stock, but not below zero. Any remaining excess will be treated as capital gain and will be treated
as described below under “Gain on Sale or Other Disposition of Common Stock.” Because we may not know the extent to which
a distribution is a dividend for U.S. federal income tax purposes at the time it is made, for purposes of the withholding rules discussed
below we or the applicable withholding agent may treat the entire distribution as a dividend. Any such distributions will also be subject
to the discussions below under the headings “FATCA” and “Backup Withholding, Information Reporting and Other Reporting
Requirements.”
Subject
to the discussion in the next two paragraphs, dividends paid to a non-U.S. holder generally will be subject to withholding
of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United
States and such holder’s country of residence.
Dividends
we pay to a non-U.S. holder that are effectively connected with such non-U.S. holder’s conduct of a trade or business
within the United States (and, if required by an applicable tax treaty, are attributable to a U.S. permanent establishment or a fixed
base maintained by such non-U.S. holder) will generally be exempt from the U.S. federal withholding tax described above, if
the non-U.S. holder complies with applicable certification and disclosure requirements (generally including provision of a
valid IRS Form W-8ECI (or applicable successor form) certifying that the dividends are effectively connected with the non-U.S. holder’s
conduct of a trade or business within the United States). Instead, such dividends generally will be subject to U.S. federal income tax
on a net income basis, at regular U.S. federal income tax rates as would apply if such holder were a U.S. person (as defined in the Code).
Any U.S. effectively connected income received by a non-U.S. holder that is classified as a corporation for U.S. federal
income tax purposes may also be subject to an additional “branch profits tax” at a rate of 30% (or such lower rate as may
be specified by an applicable income tax treaty).
A non-U.S. holder
of our common stock who claims the benefit of an applicable income tax treaty between the United States and such holder’s country
of residence generally will be required to provide a properly executed IRS Form W-8BEN or W-8BEN-E (or successor
form) and satisfy applicable certification and other requirements. Non-U.S. holders are urged to consult their tax advisors
regarding their entitlement to benefits under a relevant income tax treaty and the specific methods available to them to satisfy these
requirements.
Gain
on Sale or Other Disposition of Common Stock
Subject
to the discussion below under the headings “FATCA” and “Backup Withholding, Information Reporting and Other Reporting
Requirements,” a non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized upon the
sale or other disposition of the non-U.S. holder’s shares of our common stock unless:
|
·
|
the
gain is effectively connected with a trade or business carried on by the non-U.S. holder
within the United States (and, if required by an applicable income tax treaty, is attributable
to a U.S. permanent establishment or fixed base maintained by such non-U.S. holder);
|
|
·
|
the
non-U.S. holder is an individual and is present in the United States for 183 days or more
in the taxable year of disposition and certain other conditions are met; or
|
|
·
|
we
are or have been a “U.S. real property holding corporation” for U.S. federal
income tax purposes at any time within the shorter of the five-year period preceding such
disposition or such non-U.S. holder’s holding period of our common stock, and, provided
that our common stock is regularly traded in an established securities market within the
meaning of applicable Treasury Regulations, the non-U.S. holder has held, directly, indirectly,
or constructively, at any time during said period, more than 5% of our common stock.
|
Gain
that is effectively connected with the conduct of a trade or business in the United States generally will be subject to U.S. federal
income tax on a net income tax basis, at regular U.S. federal income tax rates that apply to U.S. persons. If the non-U.S. holder
is a non-U.S. corporation, the branch profits tax described above also may apply to such effectively connected gain. An individual non-U.S. holder
who is subject to U.S. federal income tax because the non-U.S. holder was present in the United States for 183 days or
more during the year of sale or other disposition of our common stock will be subject to a flat 30% tax (or such lower rate as may be
specified by an applicable income tax treaty) on the gain derived from such sale or other disposition, which may be offset by certain
U.S. source capital losses, if any. We believe that we are not and we do not anticipate becoming a U.S. real property holding corporation
for U.S. federal income tax purposes. Non-U.S. holders should consult their tax advisors regarding potentially applicable income tax
treaties that may provide for different rules.
FATCA
Withholding
taxes may be imposed under the Foreign Account Tax Compliance Act (“FATCA”), on certain types of payments made to non-U.S.
financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends (including
deemed dividends) paid on our common stock, to a “foreign financial institution” or a “non-financial foreign entity”
(each as defined in the Code), unless (1) the foreign financial institution undertakes certain diligence and reporting obligations, (2)
the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in
the Code) or furnishes identifying information regarding each substantial U.S. owner, or (3) the foreign financial institution or non-financial
foreign entity otherwise qualifies for an exemption from these rules. Foreign financial institutions located in jurisdictions that have
an intergovernmental agreement with the U.S. governing FATCA may be subject to the reporting rules of that intergovernmental agreement.
Because we may not know the extent to which a distribution is a dividend for U.S. federal income tax purposes at the time it is made,
for purposes of these withholding rules we or the applicable withholding agent may treat the entire distribution as a dividend. Although
withholding under FATCA would have applied also to payments of gross proceeds from the sale or other disposition of stock on or after
January 1, 2019, proposed Treasury Regulations would eliminate FATCA withholding on payments of gross proceeds entirely. Taxpayers generally
may rely on these proposed Treasury Regulations until final Treasury Regulations are issued. Under certain circumstances, a non-U.S.
holder will be eligible for refunds or credits of withholding taxes imposed under FATCA by timely filing a U.S. federal income tax return.
Prospective investors should consult their tax advisors regarding the potential application of these withholding provisions.
Backup
Withholding, Information Reporting and Other Reporting Requirements
We
must report annually to the IRS and to each non-U.S. holder the amount of any distributions paid to, and the tax withheld with
respect to, each non-U.S. holder. These reporting requirements apply regardless of whether withholding was reduced or eliminated
by an applicable income tax treaty. Copies of this information reporting may also be made available under the provisions of a specific
income tax treaty or agreement with the tax authorities in the country in which the non-U.S. holder resides or is established.
A non-U.S. holder
will generally be subject to backup withholding for dividends on our common stock paid to such holder unless such holder certifies under
penalties of perjury that, among other things, it is a non-U.S. holder (provided that the payor does not have actual knowledge or
reason to know that such holder is a U.S. person) or otherwise establishes an exemption.
Information
reporting and backup withholding generally will apply to the proceeds of a disposition of our common stock by a non-U.S. holder
effected by or through the U.S. office of any broker, U.S. or non-U.S., unless the holder certifies its status as a non-U.S. holder
and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and backup withholding
will not apply to a payment of disposition proceeds to a non-U.S. holder where the transaction is effected outside the United
States through a non-U.S. office of a broker. However, for information reporting purposes, dispositions effected through a non-U.S. office
of a broker with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions effected through
a U.S. office of a broker. Non-U.S. holders should consult their tax advisors regarding the application of the information
reporting and backup withholding rules to them.
Backup
withholding is not an additional income tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder
generally can be credited against the non-U.S. holder’s U.S. federal income tax liability, if any, or refunded, provided
that the required information is furnished to the IRS in a timely manner. Non-U.S. holders should consult their tax advisors
regarding the application of the information reporting and backup withholding rules to them.
U.S.
Federal Estate Tax
Shares
of our common stock that are owned or treated as owned by an individual who is not a citizen or resident of the United States (as specially
defined for U.S. federal estate tax purposes) at the time of death are considered U.S. situs assets and will be included in the individual’s
gross estate for U.S. federal estate tax purposes. Such shares, therefore, may be subject to U.S. federal estate tax, unless an applicable
estate tax or other treaty provides otherwise.
The
preceding discussion of material U.S. federal income tax considerations and certain U.S. federal estate tax considerations is for information
only. It is not legal or tax advice. Prospective investors should consult their tax advisors regarding the particular U.S. federal, state,
local and non-U.S. tax consequences of acquiring, owning and disposing of our common stock, including the consequences of any
proposed changes in applicable laws.
UNDERWRITING
We
are offering the shares of common stock described in this prospectus supplement through Piper Sandler & Co., as the representative
of the several underwriters. We have entered into an underwriting agreement with Piper Sandler & Co., as representative of the
several underwriters named below.
The
underwriting agreement provides that the obligations of the underwriters are subject to certain conditions precedent, including approval
of legal matters by their counsel. The underwriters have the right to withdraw, cancel or modify offers to the public and to reject orders
in whole or in part. Subject to the terms and conditions set forth in the underwriting agreement, we have agreed to sell to the underwriters,
and each of the underwriters has agreed, severally and not jointly, to purchase from us, the number of shares of our common stock listed
opposite its name below.
|
|
Number
|
Underwriter
|
|
of
Shares
|
Piper Sandler & Co.
|
|
3,712,500
|
Ladenburg Thalmann & Co. Inc.
|
|
450,000
|
Roth Capital Partners, LLC
|
|
337,500
|
Total
|
|
4,500,000
|
Option
to Purchase Additional Shares
We
have granted the underwriters an option to buy up to 675,000 additional shares of common stock from us. The underwriters may exercise
this option at any time and from time to time during the 30-day period from the date of this prospectus supplement. If any
additional shares of common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which
the shares are being offered.
Discounts
and Commissions
The
underwriters have advised us that they propose to offer the common stock directly to the public at the offering price set forth on the
cover page of this prospectus supplement. The underwriters propose to offer the shares to certain dealers at the same price less
a concession of not more than $0.36 per share. After the offering, these figures may be changed by the underwriters.
The
underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriters to us per share
of common stock. The following table shows the per share and total underwriting discount to be paid by the underwriters in connection
with this offering, assuming either no exercise and full exercise of the option to purchase additional shares:
|
|
|
|
Total
|
|
|
Per
Share
|
|
Without
Option
|
|
With
Option
|
Public offering price
|
|
$
|
10.00
|
|
|
$
|
45,000,000
|
|
|
$
|
51,750,000
|
|
Underwriting discounts and
commissions
|
|
$
|
0.60
|
|
|
$
|
2,700,000
|
|
|
$
|
3,105,000
|
|
Proceeds, before expenses,
to us
|
|
$
|
9.40
|
|
|
$
|
42,300,000
|
|
|
$
|
48,645,000
|
|
We
estimate that the total fees and expenses payable by us, excluding underwriting discounts, will be approximately $315,000, which includes
up to $100,000 that we have agreed to reimburse the underwriters for the fees and expenses incurred by them in connection with the offering.
In accordance with FINRA Rule 5110, these reimbursed fees and expenses are deemed underwriting compensation in connection with this offering.
Indemnification
of Underwriters
We
have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act, or to contribute
to payments that the underwriters may be required to make in respect of those liabilities.
No
Sales of Similar Securities
We
and all of our directors and executive officers have agreed, subject to certain exceptions, that, without the prior written consent of
Piper Sandler & Co. on behalf of the underwriters, we and they will not, or publicly disclose an intention to, during the period
ending 90 days after the date of this prospectus supplement:
|
·
|
sell,
offer to sell, contract to sell or lend, effect any short sale or establish a put equivalent
position or liquidate or decrease any call equivalent position, pledge, hypothecate or grant
any security interest in or in any way transfer or dispose of, directly or indirectly, any
shares of common stock or any securities convertible into or exercisable or exchangeable
for shares of common stock;
|
|
·
|
make
any demand for, or exercise any right with respect to, the registration under the Securities
Act of the offer and sale of any shares of common stock or any securities convertible into
or exercisable or exchangeable for common stock or cause to be filed a registration statement,
or prospectus with respect to any such registration; or
|
|
·
|
enter
into any swap or other arrangement that transfers to another, in whole or in part, the economic
risk of ownership of common stock, regardless of whether any such transaction is to be settled
in securities, in cash or otherwise.
|
Piper
Sandler & Co., in its sole discretion, may release the common stock and other securities subject to the lock-up agreements described
above in whole or in part at any time.
Listing
Our
common stock is listed on the Nasdaq Global Select Market under the symbol “IMUX”.
Price
Stabilization, Short Positions and Penalty Bids
To
facilitate the offering, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of our common
stock during and after the offering. Specifically, the underwriters may over-allot or otherwise create a short position in the common
stock for their own account by selling more shares of common stock than we have sold to them. Short sales involve the sale by the underwriters
of a greater number of shares than the underwriters are required to purchase in the offering. The underwriters may close out any short
position by either exercising their option to purchase additional shares or purchasing shares in the open market.
In
addition, the underwriters may stabilize or maintain the price of the common stock by bidding for or purchasing shares of common stock
in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or other
broker-dealers participating in the offering are reclaimed if shares of common stock previously distributed in the offering are repurchased,
whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain
the market price of the common stock at a level above that which might otherwise prevail in the open market. The imposition of a penalty
bid may also affect the price of the common stock to the extent that it discourages resales of the common stock. The magnitude or effect
of any stabilization or other transactions is uncertain. These transactions may be effected on The Nasdaq Global Select Market or otherwise
and, if commenced, may be discontinued at any time. The underwriters may also engage in passive market making transactions in our common
stock. Passive market making consists of displaying bids on The Nasdaq Global Select Market is limited by the prices of independent market
makers and effecting purchases limited by those prices in response to order flow. Rule 103 of Regulation M promulgated by the SEC
limits the amount of net purchases that each passive market maker may make and the displayed size of each bid. Passive market making
may stabilize the market price of the common stock at a level above that which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
Electronic
Distribution
This
prospectus supplement and the accompanying base prospectus in electronic format may be made available on the web sites maintained by
one or more of the underwriters and the underwriters may distribute prospectuses and prospectus supplements electronically.
Affiliations
From
time to time in the ordinary course of its businesses, the underwriters and certain of their affiliates have engaged, and may in the
future engage, in commercial banking or investment banking transactions with us and our affiliates.
Selling
Restrictions
European
Economic Area and the United Kingdom
In
relation to each Member State of the European Economic Area and the United Kingdom (each, a “Relevant State”), no securities
have been offered or will be offered pursuant to the offering to the public in that Relevant State prior to the publication of a prospectus
in relation to the securities which has been approved by the competent authority in that Relevant State or, where appropriate, approved
in another Relevant State and notified to the competent authority in that Relevant State, all in accordance with the Prospectus Regulation,
except that offers of securities may be made to the public in that Relevant State at any time under the following exemptions under the
Prospectus Regulation:
(a) to
any legal entity which is a qualified investor as defined under the Prospectus Regulation;
(b) to
fewer than 150 natural or legal persons (other than qualified investors as defined under the Prospectus Regulation), subject to obtaining
the prior consent of the representatives; or
(c) in
any other circumstances falling within Article 1(4) of the Prospectus Regulation,
provided
that no such offer of shares shall require us or any of our representatives to publish a prospectus pursuant to Article 3 of the Prospectus
Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
For
the purposes of this provision, the expression an “offer to the public” in relation to any shares in any Relevant State means
the communication in any form and by any means of sufficient information on the terms of the offer and any shares to be offered so as
to enable an investor to decide to purchase any shares, and the expression “Prospectus Regulation” means Regulation (EU)
2017/1129 (as amended).
United
Kingdom
Each
underwriter has represented and agreed that:
|
(a)
|
it
has only communicated or caused to be communicated and will only communicate or cause to
be communicated an invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”))
received by it in connection with the issue or sale of the shares of our common stock in
circumstances in which Section 21(1) of the FSMA does not apply to us; and
|
|
(b)
|
it
has complied and will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the shares of our common stock in, from or otherwise involving
the United Kingdom.
|
Canada
The
common shares may be sold only to purchasers purchasing as principal that are both “accredited investors” as defined in National
Instrument 45-106 Prospectus and Registration Exemptions and “permitted clients” as defined in National Instrument 31-103 Registration
Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the common shares must be made in accordance with an exemption
from the prospectus requirements and in compliance with the registration requirements of applicable securities laws.
Germany
Each
person who is in possession of this prospectus is aware of the fact that no German securities prospectus (wertpapierprospekt) within
the meaning of the German Securities Prospectus Act (Wertpapier-prospektgesetz, or the “Act”) of the Federal Republic of
Germany has been or will be published with respect to the shares of our common stock. In particular, each underwriter has represented
that it has not engaged and has agreed that it will not engage in a public offering in the Federal Republic of Germany within the meaning
of the Act with respect to any of the shares of our common stock otherwise than in accordance with the Act and all other applicable legal
and regulatory requirements.
Hong
Kong
The
common shares may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute
an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to “professional
investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder,
or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies
Ordinance (Cap. 32, Laws of Hong Kong) and no advertisement, invitation or document relating to the shares may be issued or may be in
the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the
contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong
Kong) other than with respect to common shares which are or are intended to be disposed of only to persons outside Hong Kong or only
to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and
any rules made thereunder.
Singapore
This
prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other
document or material in connection with the offer or sale, or invitation for subscription or purchase, of the common shares may not be
circulated or distributed, nor may the common shares be offered or sold, or be made the subject of an invitation for subscription or
purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274
of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person pursuant to Section 275(1),
or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance
with conditions set forth in the SFA.
Where
the common shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
|
(a)
|
a
corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the
sole business of which is to hold investments and the entire share capital of which is owned
by one or more individuals, each of whom is an accredited investor; or
|
|
(b)
|
a
trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments
and each beneficiary of the trust is an individual who is an accredited investor,
|
shares,
debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest (howsoever described)
in that trust shall not be transferred within six months after that corporation or that trust has acquired the common shares pursuant
to an offer made under Section 275 of the SFA except:
|
(a)
|
to
an institutional investor (for corporations, under Section 274 of the SFA) or to a relevant
person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is
made on terms that such shares, debentures and units of shares and debentures of that corporation
or such rights and interest in that trust are acquired at a consideration of not less than
$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount
is to be paid for in cash or by exchange of securities or other assets, and further for corporations,
in accordance with the conditions specified in Section 275 of the SFA;
|
|
(b)
|
where
no consideration is or will be given for the transfer; or
|
|
(c)
|
where
the transfer is by operation of law.
|
Solely
for the purposes of its obligations pursuant to section 309B(1)(a) and 309B(1)(c) of the SFA and the Securities and Futures (Capital
Markets Products) Regulations 2018 of Singapore (the “CMP Regulations 2018”), the issuer has determined, and hereby notifies
all relevant persons (as defined in Section 309A(1) of the SFA), that the shares are “prescribed capital markets products”
(as defined in the CMP Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of
Investment Products; and MAS notice FAA-N16: Notice on Recommendations on Investment Products).
Switzerland
The
common shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the “SIX”) or
on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure
standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing
prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility
in Switzerland. Neither this document nor any other offering or marketing material relating to the common shares or the offering may
be publicly distributed or otherwise made publicly available in Switzerland.
Neither
this document nor any other offering or marketing material relating to the offering, or the common shares have been or will be filed
with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of common shares
will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of common shares has not been and will
not be authorized under the Swiss Federal Act on Collective Investment Schemes (“CISA”). Accordingly, no public distribution,
offering or advertising, as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor,
as defined in CISA, its implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection
afforded to acquirers of interests in collective investment schemes under CISA does not extend to acquirers of common shares.
United
Arab Emirates
This
offering has not been approved or licensed by the Central Bank of the United Arab Emirates (the “UAE”), Securities and Commodities
Authority of the UAE and/or any other relevant licensing authority in the UAE including any licensing authority incorporated under the
laws and regulations of any of the free zones established and operating in the territory of the UAE, in particular the Dubai Financial
Services
Authority (“DFSA”), a regulatory authority of the Dubai International Financial Centre (“DIFC”). The offering
does not constitute a public offer of securities in the UAE, DIFC and/or any other free zone in accordance with the Commercial Companies
Law, Federal Law No 8 of 1984 (as amended), DFSA Offered Securities Rules and NASDAQ Dubai Listing Rules, accordingly, or otherwise.
The common shares may not be offered to the public in the UAE and/or any of the free zones.
The
common shares may be offered and issued only to a limited number of investors in the UAE or any of its free zones who qualify as sophisticated
investors under the relevant laws and regulations of the UAE or the free zone concerned.
France
This
prospectus (including any amendment, supplement or replacement thereto) is not being distributed in the context of a public offering
in France within the meaning of Article L. 411-1 of the French Monetary and Financial Code (Code monétaire et financier).
This
prospectus has not been and will not be submitted to the French Autorité des marchés financiers (the “AMF”)
for approval in France and accordingly may not and will not be distributed to the public in France.
Pursuant
to Article 211-3 of the AMF General Regulation, French residents are hereby informed that:
1.
the transaction does not require a prospectus to be submitted for approval to the AMF;
2.
persons or entities referred to in Point 2°, Section II of Article L.411-2 of the Monetary and Financial Code may take
part in the transaction solely for their own account, as provided in Articles D. 411-1, D. 734-1, D. 744-1, D. 754-1 and
D. 764-1 of the Monetary and Financial Code; and
3.
the financial instruments thus acquired cannot be distributed directly or indirectly to the public otherwise than in accordance with
Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the Monetary and
Financial Code.
This
prospectus is not to be further distributed or reproduced (in whole or in part) in France by the recipients of this prospectus. This
prospectus has been distributed on the understanding that such recipients will only participate in the issue or sale of our common stock
for their own account and undertake not to transfer, directly or indirectly, our common stock to the public in France, other than in
compliance with all applicable laws and regulations and in particular with Articles L. 411-1 and L. 411-2 of the
French Monetary and Financial Code.
Bermuda
Shares
of common stock may be offered or sold in Bermuda only in compliance with the provisions of the Investment Business Act of 2003 of Bermuda
which regulates the sale of securities in Bermuda. Additionally, non-Bermudian persons (including companies) may not carry on or engage
in any trade or business in Bermuda unless such persons are permitted to do so under applicable Bermuda legislation.
Australia
This
prospectus is not a disclosure document for the purposes of Australia’s Corporations Act 2001 (Cth) of Australia, or Corporations
Act, has not been lodged with the Australian Securities & Investments Commission and is only directed to the categories of exempt
persons set out below. Accordingly, if you receive this prospectus in Australia:
You
confirm and warrant that you are either”
|
·
|
a
“sophisticated investor” under section 708(8)(a) or (b) of the Corporations Act;
|
|
·
|
a
“sophisticated investor” under section 708(8)(c) or (d) of the Corporations Act
and that you have provided an accountant’s certificate to the Company which complies
with the requirements of section 708(8)(c)(i) or (ii) of the Corporations Act and related
regulations before the offer has been made;
|
|
·
|
a
person associated with the Company under Section 708(12) of the Corporations Act; or
|
|
·
|
a
“professional investor” within the meaning of section 708(11)(a) or (b) of the
Corporations Act.
|
To
the extent that you are unable to confirm or warrant that you are an exempt sophisticated investor, associated person or professional
investor under the Corporations Act any offer made to you under this prospectus is void and incapable of acceptance.
(B)
You warrant and agree that you will not offer any of the securities issued to you pursuant to this prospectus for resale in Australia
within 12 months of those securities being issued unless any such resale offer is exempt from the requirement to issue a disclosure document
under section 708 of the Corporations Act.
Japan
The
offering has not been and will not be registered under the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948 of Japan,
as amended), or FIEL, and the Initial Purchaser will not offer or sell any securities, directly or indirectly, in Japan or to, or for
the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other
entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to, or for the
benefit of, any resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance
with, the FIEL and any other applicable laws, regulations and ministerial guidelines of Japan.
Israel
This
document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed
with or approved by the Israel Securities Authority. In Israel, this prospectus is being distributed only to, and is directed only at,
and any offer of the common stock is directed only at, (i) a limited number of persons in accordance with the Israeli Securities Law
and (ii) investors listed in the first addendum, or the Addendum, to the Israeli Securities Law, consisting primarily of joint investment
in trust funds, provident funds, insurance companies, banks, portfolio managers, investment advisors, members of the Tel Aviv Stock Exchange,
underwriters, venture capital funds, entities with equity in excess of NIS 50 million and “qualified individuals,” each as
defined in the Addendum (as it may be amended from time to time), collectively referred to as qualified investors (in each case, purchasing
for their own account or, where permitted under the Addendum, for the accounts of their clients who are investors listed in the Addendum).
Qualified investors are required to submit written confirmation that they fall within the scope of the Addendum, are aware of the meaning
of same and agree to it.
LEGAL
MATTERS
The
validity of the common stock being offered by this prospectus supplement will be passed upon for us by Dentons US LLP, New York, New
York. Covington & Burling LLP, New York, New York, is counsel to the underwriters in connection with this offering.
EXPERTS
The
consolidated financial statements of Immunic, Inc. as of December 31, 2020 and 2019 and for each of the two years in the period ended
December 31, 2020 incorporated in this prospectus supplement by reference to our Annual Report on Form 10-K for the year ended December
31, 2020, have been so incorporated in reliance on the report of Baker Tilly US, 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
This
prospectus supplement and the accompanying prospectus form part of a registration statement on Form S-3 that we filed with the SEC. This
prospectus supplement and the accompanying prospectus do not contain all of the information set forth in the registration statement and
the exhibits to the registration statement or the documents incorporated by reference herein and therein. For further information with
respect to us and the securities that we are offering under this prospectus supplement, we refer you to the registration statement and
the exhibits filed as a part of the registration statement and the documents incorporated by reference herein and therein.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus
and any free writing prospectuses we have authorized for use in connection with this offering. We have not, and the underwriters have
not, authorized anyone else to provide you with information that is in addition to or different from that contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus, along with the information contained in any permitted free writing
prospectuses we have authorized for use in connection with this offering. This prospectus supplement and the accompanying prospectus
is not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which it relates, or an offer
of solicitation in any jurisdiction where offers or sales are not permitted.
The
information contained in this prospectus supplement and the accompanying prospectus is accurate only as of the date of this prospectus
supplement or the date of the accompanying prospectus, and the information in the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus is accurate only as of the date of those respective documents, regardless of the time of delivery
of this prospectus supplement and the accompanying prospectus or of any sale of our common stock. Our business, financial condition,
results of operations and prospects may have changed since those dates. It is important for you to read and consider all information
contained or incorporated by reference in this prospectus supplement and the accompanying prospectus in making your investment decision.
We
file annual, quarterly and other reports, proxy and information statements and other information with the SEC. The SEC maintains a website
that contains reports, proxy statements and other information regarding us. The address of the SEC website is www.sec.gov. We maintain
a website at www.imux.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus
supplement. Investors should not rely on any such information in deciding whether to purchase our common stock. We have included our
website address in this prospectus supplement solely as an inactive textual reference.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means that
we can disclose important information to you by referring you to those documents rather than by including them in this prospectus supplement.
Information that is incorporated by reference is considered to be part of this prospectus supplement and you should read it with the
same care that you read this prospectus supplement. Later information that we file with the SEC will automatically update and supersede
the information that is either contained, or incorporated by reference, in this prospectus supplement, and will be considered to be a
part of this prospectus from the date those documents are filed. We have filed with the SEC, and incorporate by reference in this prospectus
supplement:
|
·
|
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020;
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2021;
|
|
·
|
our
Current Reports on Form 8-K filed with the SEC on January 4, 2021, February 18, 2021, March
31, 2021, April 19, 2021, June 14, 2021 July 1, 2021 and July 12, 2021 (in each case except
for information contained therein which is furnished rather than filed); and
|
|
·
|
the
description of our common stock contained in our registration statement on Form 8-A12B, filed
with the SEC on November 15, 2013 (File No. 001-36201), and all amendments or reports filed
for the purpose of updating such description, including Exhibit 4.2 to our Annual Report
on Form 10-K filed with the SEC on February 26, 2021.
|
In
addition, we incorporate by reference all additional documents that we subsequently file with the SEC pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act that are made after the initial filing date of the registration statement of which this prospectus supplement
is a part and the effectiveness of the registration statement, as well as between the date of this prospectus supplement and the termination
of any offering of securities offered by this prospectus. We are not, however, incorporating, in each case, any documents or information
that we furnish or are deemed to furnish and not file in accordance with SEC rules.
You
may request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Immunic,
Inc.
Attn: Corporate Secretary
1200 Avenue of the Americas, Suite 200
New
York, New York 10036
(333)
255-9818
In addition,
you may obtain a copy of these filings from the SEC, as described in the section entitled “Where You Can Find More Information”
in this prospectus supplement.
PROSPECTUS
Common
Stock
Preferred
Stock
Debt Securities
Warrants
Units
$250,000,000
____________________________
We
may offer and sell up to $250,000,000 in the aggregate of the securities identified above from time to time in one or more offerings.
This prospectus provides you with a general description of the securities.
Each
time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering
and the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus
with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in
any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information.
No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms
of the offering of such securities.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” SECTION ON PAGE 5 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED
IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS CONCERNING FACTORS
YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our
common stock is listed on the Nasdaq Global Select Market under the symbol “IMUX.” On November 12, 2020 the last reported
sale price of our common stock on the Nasdaq Global Select Market was $19.30 per share.
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 November 24, 2020.
TABLE
OF CONTENTS
Page
About
this Prospectus
|
1
|
Where
You Can Find More Information
|
2
|
Incorporation
of Certain Documents by Reference
|
2
|
The
Company
|
4
|
Risk
Factors
|
5
|
Use
of Proceeds
|
5
|
Description
of Capital Stock We May Offer
|
6
|
Description
of Debt Securities We May Offer
|
9
|
Description
of Warrants We May Offer
|
15
|
Description
of Units We May Offer
|
18
|
Global
Securities
|
19
|
Plan
of Distribution
|
22
|
Legal
Matters
|
23
|
Experts
|
23
|
ABOUT
THIS PROSPECTUS
This prospectus
is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”), using a “shelf”
registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings
up to a total dollar amount of $250,000,000 of securities as described in this prospectus. Each time that we offer and sell securities,
we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and
sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that
may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update
or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information
in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement
or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable
prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the headings
“Where You Can Find More Information” and Incorporation by Reference.”
We have
not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus,
any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you.
We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.
We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date
on its respective cover, that the information appearing in any applicable free writing prospectuses is accurate only as of the date of
that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated
by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since
those dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate
by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly
available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information
and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included
or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectuses may involve estimates,
assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the
heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing
prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors
should not place undue reliance on this information.
When we
refer to “we,” “our,” “us” and the “Company” in this prospectus, we mean Immunic, Inc.,
unless otherwise specified. When we refer to “you,” we mean the potential holders of the applicable series of securities.
This prospectus
contains references to our trademarks and to trademarks belonging to other entities, which are protected under applicable intellectual
property laws. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork and other
visual displays, may appear without the ® or ™ symbols, but such references are not intended to indicate that we or their respective
owners will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks
and trade names. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with,
or endorsement or sponsorship of us by, any such companies.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and other reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports,
proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of
that website is http://www.sec.gov.
Our website
address is www.imux.com. The information on our website, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus
and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information
in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture
and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or
documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these
documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer
to the actual documents for a more complete description of the relevant matters. You may obtain a copy of the registration statement
through the SEC’s website, as provided above.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC’s
rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed
to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information.
Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document
incorporated by reference modifies or replaces that statement.
This prospectus
and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with
the SEC (but excluding any information in such documents that has been furnished to, rather than filed with, the SEC):
|
·
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as filed with the
SEC on March 16, 2020;
|
|
·
|
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, as filed with the SEC
on May 8, 2020; our amended Quarterly Report on Form 10-Q/A for the quarter ended June 30,
2020, as filed with the SEC on August 3, 2020; and September 30, 2020, as filed with the
SEC on November 6, 2020;
|
|
·
|
our
Current Reports on Form 8-K filed with the SEC on January 8, 2020, April 20, 2020, April
22, 2020, April 27, 2020, May 13, 2020, May 19, 2020, June 12, 2020, June 19, 2020, July
7, 2020, August 3, 2020, August 7, 2020, October 20, 2020 and November 13, 2020; and
|
|
·
|
the
description of our common stock contained in our registration statement on Form 8-A12B, filed
with the SEC on November 15, 2013 (File No. 001-36201), and all amendments or reports filed
for the purpose of updating such description.
|
All reports
and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), prior to the termination of this offering, including all such documents we may file with the SEC after
the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information
furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this
prospectus from the date of the filing of such reports and documents.
You may
request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following
address:
Immunic,
Inc.
Attn: Corporate Secretary
1200 Avenue of the Americas, Suite 200
New York, New York 10036
(332) 255-9818
Exhibits
to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or
any accompanying prospectus supplement.
THE
COMPANY
We are
a clinical-stage biopharmaceutical company developing a pipeline of selective oral immunology therapies aimed at treating chronic inflammatory
and autoimmune diseases. Our main operations are in Gräfelfing near Munich, Germany. We currently have approximately 25 employees.
We are
currently pursuing three development programs. These include the IMU-838 program, which is focused on the development of oral formulations
of small molecule inhibitors of dihydroorotate dehydrogenase (“DHODH”); the IMU-935 program, which is focused on an inverse
agonist of RORγt, an immune cell-specific isoform of retinoic acid receptor-related orphan nuclear receptor gamma (“RORγ”),
and the IMU-856 program, which involves the development of a drug targeting the restoration of intestinal barrier function. These product
candidates are being developed to address diseases such as relapsing-remitting multiple sclerosis (“RRMS”), ulcerative colitis
(“UC”), Crohn’s disease (“CD”), and psoriasis. In addition to these large markets, our products are also
being developed to address certain rare diseases with high unmet medical needs, such as primary sclerosing cholangitis (“PSC”),
and Guillain-Barré syndrome (“GBS”). We are also investigating IMU-838 as a potential treatment option for coronavirus
disease 2019 (“COVID-19”).
Prior to
April 12, 2019, we were a clinical-stage biotherapeutic company known as Vital Therapies, Inc. that had historically been focused on
the development of a cell-based therapy targeting the treatment of acute forms of liver failure. Vital Therapies, Inc. was originally
incorporated in the State of California in May of 2003 as Vitagen Acquisition Corp., subsequently changed its name to Vital Therapies,
Inc. in June 2003, and reincorporated in Delaware in January 2004. In April 2019, we completed an exchange transaction with Immunic AG
pursuant to which holders of ordinary shares of Immunic AG exchanged all of their shares for shares of our common stock, resulting in
Immunic AG becoming our wholly owned subsidiary. Following the exchange, we changed our name to Immunic, Inc. and we became a clinical-stage
biopharmaceutical company focused on the development of selective oral therapies in immunology with the goal of becoming a leader in
treatments for chronic inflammatory and autoimmune diseases.
Our corporate
headquarters are located at 1200 Avenue of the Americas, Suite 200, New York, New York 10036. We also have an office at Lochhamer Schlag
21, 82166 Gräfelfing, Germany. Our telephone number is (332) 255-9818. We maintain a website at www.imux.com. The information contained
on, or that can be accessed through, our website is not incorporated by reference into this prospectus. Investors should not rely on
any such information in deciding whether to purchase our common stock. We have included our website address as an inactive textual reference
only.
RISK
FACTORS
Investment
in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider
the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, and any
subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this
prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings
under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement and any applicable
free writing prospectuses before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or
part of your investment in the offered securities.
USE
OF PROCEEDS
We intend
to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK WE MAY OFFER
General
Our authorized
capital stock consists of 130,000,000 shares of common stock, par value $0.0001 per share, and 20,000,000 shares of preferred stock,
par value $0.0001 per share.
The following
description of our common stock and preferred stock, together with the additional information included in any applicable prospectus supplements
or related free writing prospectuses, summarizes the material terms and provisions of these types of securities, but it is not complete.
For the complete terms of our common stock and preferred stock, please refer to our certificate of incorporation and our bylaws that
are incorporated by reference into the registration statement which includes this prospectus and, with respect to preferred stock, any
certificate of designation that we may file with the SEC for a series of preferred stock we may designate, if any.
We will
describe, in a prospectus supplement or related free writing prospectuses, the specific terms of any common stock or preferred stock
we may offer pursuant to this prospectus. If indicated in a prospectus supplement, the terms of such common stock or preferred stock
may differ from the terms described below.
Common
Stock
As of November
13, 2020, there were 20,718,340 shares of common stock outstanding. The holders of our common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of the stockholders. The holders of common stock are not entitled to cumulative
voting rights with respect to the election of directors, and as a consequence, minority stockholders will not be able to elect directors
on the basis of their votes alone.
Subject
to preferences that may be applicable to any then outstanding shares of preferred stock, holders of common stock are entitled to receive
ratably such dividends as may be declared by the board of directors out of funds legally available therefor. In the event of a liquidation,
dissolution or winding up of us, holders of the common stock are entitled to share ratably in all assets remaining after payment of liabilities
and the liquidation preferences of any then outstanding shares of preferred stock. Holders of common stock have no preemptive rights
and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to
our common stock. All outstanding shares of common stock are, and all shares of common stock to be issued under this prospectus will
be, fully paid and non-assessable. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any of our outstanding preferred stock.
Listing
Our common
stock is listed on the Nasdaq Global Select Market under the symbol “IMUX.”
Transfer
Agent and Registrar
The transfer
agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC (“AST”). The transfer agent
and registrar’s address is 6201 15th Avenue, Brooklyn, New York 11219.
Dividends
We have
not declared any cash dividends on our common stock since inception and we do not anticipate paying any cash dividends on our common
stock in the foreseeable future.
Preferred
Stock
We are
authorized to issue a total of 20,000,000 shares of preferred stock. As of November 13, 2020, there were no shares of preferred stock
issued and outstanding.
Preferred
stock may be issued from time to time, in one or more series, as authorized by the board of directors, without stockholder approval.
The prospectus supplement relating to the preferred shares offered thereby will include specific terms of any preferred shares offered,
including, if applicable:
|
·
|
the
title of the shares of preferred stock;
|
|
·
|
the
number of shares of preferred stock offered, the liquidation preference per share and the
offering price of the shares of preferred stock;
|
|
·
|
the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable
to the shares of preferred stock;
|
|
·
|
whether
the dividends on shares of preferred stock are cumulative or not and, if cumulative, the
date from which dividends on the shares of preferred stock shall accumulate;
|
|
·
|
the
procedures for any auction and remarketing, if any, for the shares of preferred stock;
|
|
·
|
the
provision for a sinking fund, if any, for the shares of preferred stock;
|
|
·
|
the
provision for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights of the shares of preferred stock;
|
|
·
|
any
listing of the shares of preferred stock on any securities exchange;
|
|
·
|
the
terms and conditions, if applicable, upon which the shares of preferred stock will be convertible
into common shares, including the conversion price (or manner of calculation thereof);
|
|
·
|
discussion
of federal income tax considerations applicable to the shares of preferred stock;
|
|
·
|
the
relative ranking and preferences of the shares of preferred stock as to dividend rights and
rights upon liquidation, dissolution or winding up of our affairs;
|
|
·
|
any
limitations on issuance of any series or class of shares of preferred stock ranking senior
to or on a parity with such series or class of shares of preferred stock as to dividend rights
and rights upon liquidation, dissolution or winding up of our affairs;
|
|
·
|
any
other specific terms, preferences, rights, limitations or restrictions of the shares of preferred
stock; and
|
|
·
|
any
voting rights of such preferred stock.
|
The transfer
agent and registrar for any series or class of preferred stock will be set forth in the applicable prospectus supplement.
Possible
Anti-Takeover Effects of Delaware Law and our Charter Documents
Some provisions
of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws could make the following transactions
more difficult: an acquisition of us by means of a tender offer, an acquisition of us by means of a proxy contest or otherwise, or the
removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could
deter transactions that stockholders may otherwise consider to be in their best interest or in our best interest, including transactions
which provide for payment of a premium over the market price for our shares.
These provisions,
summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed
to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of
the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire
or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an
improvement of their terms.
Delaware
Anti-Takeover Statute
We are
subject to Section 203 of the Delaware General Corporation Law (the “DGCL”), an anti-takeover statute. In general, Section
203 of the DGCL prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years following the time the person became an interested stockholder, unless the business combination
or the acquisition of shares that resulted in a stockholder becoming an interested stockholder is approved in a prescribed manner. Generally,
a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to
the interested stockholder. Generally, an “interested stockholder” is a person who, together with affiliates and associates,
owns (or within three years prior to the determination of interested stockholder status did own) 15% or more of a corporation’s
voting stock. The existence of this provision would be expected to have an anti-takeover effect with respect to transactions not approved
in advance by our board of directors, including discouraging attempts that might result in a premium over the market price for the shares
of common stock held by our stockholders.
Undesignated
Preferred Stock.
The ability
of our board of directors, without action by the stockholders, to issue up to 20,000,000 shares of undesignated preferred stock with
voting or other rights or preferences as designated by our board of directors could impede the success of any attempt to effect a change
in control of us. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management
of our company.
Requirements
for Advance Notification of Stockholder Nominations and Proposals.
Our amended
and restated bylaws establish advance notice procedures with respect to stockholder proposals to be brought before a stockholder meeting
and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors
or a committee of the board of directors.
Elimination
of Stockholder Action by Written Consent.
Our amended
and restated certificate of incorporation eliminates the right of stockholders to act by written consent without a meeting.
Staggered
Board.
Our board
of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each
year by our stockholders. This system of electing and removing directors may tend to discourage a third party from making a tender offer
or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority
of the directors.
Removal
of Directors.
Our amended
and restated certificate of incorporation provides that no member of our board of directors may be removed from office by our stockholders
except for cause and, in addition to any other vote required by law, upon the approval of the holders of at least two-thirds in voting
power of the outstanding shares of stock entitled to vote in the election of directors.
Stockholders
Not Entitled to Cumulative Voting.
Our amended
and restated certificate of incorporation does not permit stockholders to cumulate their votes in the election of directors. Accordingly,
the holders of a majority of the outstanding shares of our common stock entitled to vote in any election of directors can elect all of
the directors standing for election, if they choose, other than any directors that holders of our preferred stock may be entitled to
elect.
Authorized
but Unissued Shares
Our authorized
but unissued shares of common stock and preferred stock will be available for future issuance without stockholder approval. We may use
additional shares for a variety of purposes, including future public offerings to raise additional capital, to fund acquisitions and
as employee compensation. The existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors
to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise.
For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is
not in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without
stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed
acquirer, stockholder or stockholder group. The rights of holders of our common stock described above will be subject to, and may be
adversely affected by, the rights of any preferred stock that we may designate and issue in the future. The issuance of shares of undesignated
preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The
issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying,
deterring or preventing a change in control of us.
Director
Liability
Our bylaws
limit the extent to which our directors are personally liable to us and our stockholders, to the fullest extent permitted by the DGCL.
The inclusion of this provision in our bylaws may reduce the likelihood of derivative litigation against directors and may discourage
or deter stockholders or management from bringing a lawsuit against directors for breach of their duty of care.
The provisions
of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of discouraging
others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our
common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing
changes in the composition of our board and management. It is possible that these provisions could make it more difficult to accomplish
transactions that stockholders may otherwise deem to be in their best interest.
DESCRIPTION
OF DEBT SECURITIES WE MAY OFFER
The following
description, together with the additional information we include in any applicable prospectus supplements or free writing prospectuses,
summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms of
any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of
any debt securities we offer under a prospectus supplement may differ from the terms we describe below. Unless the context requires otherwise,
whenever we refer to the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular
series of debt securities.
We will
issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We
will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that we will enter into
with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement,
of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference
to reports that we file with the SEC.
The indentures
will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term “trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following
summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and
qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular
series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related
to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt
securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
The terms
of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined
in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series
without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any
series. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
|
·
|
the
principal amount being offered, and if a series, the total amount authorized and the total
amount outstanding;
|
|
·
|
any
limit on the amount that may be issued;
|
|
·
|
whether
or not we will issue the series of debt securities in global form, and, if so, the terms
and who the depositary will be;
|
|
·
|
whether
and under what circumstances, if any, we will pay additional amounts on any debt securities
held by a person who is not a U.S. person for tax purposes, and whether we can redeem the
debt securities if we have to pay such additional amounts;
|
|
·
|
the
annual interest rate, which may be fixed or variable, or the method for determining the rate
and the date interest will begin to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for determining such dates;
|
|
·
|
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
|
|
·
|
the
terms of the subordination of any series of subordinated debt;
|
|
·
|
the
place where payments will be payable;
|
|
·
|
restrictions
on transfer, sale or other assignment, if any;
|
|
·
|
our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
|
|
·
|
the
date, if any, after which, and the price at which, we may, at our option, redeem the series
of debt securities pursuant to any optional or provisional redemption provisions and the
terms of those redemption provisions;
|
|
·
|
provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any,
on which, and the price at which we are obligated, pursuant thereto or otherwise, to redeem,
or at the holder’s option, to purchase, the series of debt securities and the currency
or currency unit in which the debt securities are payable;
|
|
·
|
provisions
relating to modification of the terms of the security or the rights of the security holder;
|
|
·
|
whether
the indenture will restrict our ability or the ability of our subsidiaries to:
|
|
·
|
incur
additional indebtedness;
|
|
·
|
issue
additional securities;
|
|
·
|
pay
dividends or make distributions in respect of our capital stock or the capital stock of our
subsidiaries;
|
|
·
|
place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer
assets;
|
|
·
|
make
investments or other restricted payments;
|
|
·
|
sell,
transfer or otherwise dispose of assets;
|
|
·
|
enter
into sale-leaseback transactions;
|
|
·
|
engage
in transactions with stockholders or affiliates;
|
|
·
|
issue
or sell stock of our subsidiaries; or
|
|
·
|
effect
a consolidation or merger;
|
|
·
|
whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based or other financial ratios;
|
|
·
|
information
describing any book-entry features;
|
|
·
|
the
applicability of the provisions in the indenture on discharge;
|
|
·
|
whether
the debt securities are to be offered at a price such that they will be deemed to be offered
at an “original issue discount” as defined in paragraph (a) of Section 1273 of
the Internal Revenue Code of 1986, as amended;
|
|
·
|
the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
|
|
·
|
the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; and
|
|
·
|
any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, including any additional events of default or covenants provided with respect
to the debt securities, and any terms that may be required by us or advisable under applicable
laws or regulations.
|
U.S. federal
income tax consequences applicable to debt securities sold at an original issue discount will be described in the applicable prospectus
supplement. In addition, U.S. federal income tax or other consequences applicable to any debt securities which are denominated in a currency
or currency unit other than U.S. dollars may be described in the applicable prospectus supplement.
Conversion
or Exchange Rights
We will
set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable
for our common stock, our preferred stock or other securities (including securities of a third party). We will include provisions as
to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which
the number of shares of our common stock, our preferred stock or other securities (including securities of a third party) that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the
debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of
other entities, the person with whom we consolidate or merge or to whom we sell all of our assets must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities
before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indentures with respect to any series of debt securities that we may issue:
|
·
|
if
we fail to pay interest when due and payable and our failure continues for 90 days and the
time for payment has not been extended;
|
|
·
|
if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable
and the time for payment has not been extended;
|
|
·
|
if
we fail to observe or perform any other covenant contained in the debt securities or the
indentures, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive notice from the trustee or we and
the trustee receive notice from the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of the applicable series; and
|
|
·
|
if
specified events of bankruptcy, insolvency or reorganization occur.
|
We will
describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain
specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each
issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any
holder.
The holders
of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default
with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default in accordance with the indenture. Any such waiver shall cure the default
or event of default.
Subject
to the terms of the applicable indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
|
·
|
the
direction so given by the holders is not in conflict with any law or the applicable indenture;
and
|
|
·
|
subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might
subject it to personal liability or might be unduly prejudicial to the holders not involved
in the proceeding.
|
The indentures
provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of its powers to use
the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any
direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder
of the relevant series of debt securities, or that would subject the trustee to personal liability. Prior to taking any action under
the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by
taking or not taking such action.
A holder
of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee,
or to seek other remedies only if:
|
·
|
the
holder has given written notice to the trustee of a continuing event of default with respect
to that series;
|
|
·
|
the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made a written request and such holders have offered reasonable indemnity
to the trustee or security satisfactory to it against any loss, liability or expense to be
incurred in compliance with instituting the proceeding as trustee; and
|
|
·
|
the
trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 60 days after the notice, request and offer.
|
These limitations
do not apply to a proceeding instituted by a holder of debt securities if we default in the payment of the principal, premium, if any,
or interest on, the debt securities.
We will
periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures
provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail
to each holder notice of the default within 45 days after it occurs, unless such default has been cured. Except in the case of a default
in the payment of principal or premium of, or interest on, any debt security or certain other defaults specified in an indenture, the
trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee
of directors, or responsible officers of the trustee, in good faith determine that withholding notice is in the best interests of holders
of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
|
·
|
to
fix any ambiguity, defect or inconsistency in the indenture;
|
|
·
|
to
comply with the provisions described above under “-Consolidation, Merger or Sale”;
|
|
·
|
to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act;
|
|
·
|
to
add to, delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and delivery of debt securities, as set
forth in such indenture;
|
|
·
|
to
provide for the issuance of, and establish the form and terms and conditions of, the debt
securities of any series as provided above under “-General,” to establish the
form of any certifications required to be furnished pursuant to the terms of the indenture
or any series of debt securities, or to add to the rights of the holders of any series of
debt securities;
|
|
·
|
to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
|
|
·
|
to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities and to make all appropriate changes for such purpose;
|
|
·
|
to
add such new covenants, restrictions, conditions or provisions for the protection of the
holders, and to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default
or to surrender any right or power conferred to us in the indenture; or
|
|
·
|
to
change anything that does not materially adversely affect the interests of any holder of
debt securities of any series in any material respect; provided that any amendment made solely
to conform the provisions of the indenture to the corresponding description of the debt securities
contained in the applicable prospectus or prospectus supplement shall be deemed not to adversely
affect the interests of the holders of such debt securities; provided further, that in connection
with any such amendment we will provide the trustee with an officers’ certificate certifying
that such amendment will not adversely affect the rights or interests of the holders of such
debt securities.
|
In addition,
under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent
of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected.
However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee
may only make the following changes with the consent of each holder of any outstanding debt securities affected:
|
·
|
extending
the fixed maturity of the series of debt securities;
|
|
·
|
reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any debt securities;
|
|
·
|
reducing
the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver;
|
|
·
|
changing
any of our obligations to pay additional amounts;
|
|
·
|
reducing
the amount of principal of an original issue discount security or any other note payable
upon acceleration of the maturity thereof;
|
|
·
|
changing
the currency in which any note or any premium or interest is payable;
|
|
·
|
impairing
the right to enforce any payment on or with respect to any note;
|
|
·
|
adversely
changing the right to convert or exchange, including decreasing the conversion rate or increasing
the conversion price of, such note, if applicable;
|
|
·
|
in
the case of the subordinated indenture, modifying the subordination provisions in a manner
adverse to the holders of the subordinated debt securities;
|
|
·
|
if
the debt securities are secured, changing the terms and conditions pursuant to which the
debt securities are secured in a manner adverse to the holders of the secured debt securities;
|
|
·
|
reducing
the requirements contained in the applicable indenture for quorum or voting;
|
|
·
|
changing
any of our obligations to maintain an office or agency in the places and for the purposes
required by the indentures; or
|
|
·
|
modifying
any of the above provisions set forth in this paragraph.
|
Discharge
Each indenture
provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to
a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt
securities, except for specified obligations, including obligations to:
|
·
|
register
the transfer or exchange of debt securities of the series;
|
|
·
|
replace
stolen, lost or mutilated debt securities of the series;
|
|
·
|
maintain
paying agencies;
|
|
·
|
hold
monies for payment in trust;
|
|
·
|
recover
excess money held by the trustee;
|
|
·
|
compensate
and indemnify the trustee; and
|
|
·
|
appoint
any successor trustee.
|
In order
to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal
of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We will
issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the
option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable
prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of
the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will
name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that
we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of
any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If we elect
to redeem the debt securities of any series, we will not be required to:
|
·
|
issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or
|
|
·
|
register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part.
|
Information
Concerning the Trustee
The trustee,
other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as
are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers given it by the indentures
at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and
liabilities that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree of care as
a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest payment.
We will
pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee in the City of New York as our sole paying agent for payments with respect
to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate
for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a
particular series.
All money
we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains
unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the
holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The indentures
and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent
that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The subordinated
debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the
extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that
we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The senior
debt securities will be unsecured and will rank equally in right of payment to all of our other senior unsecured debt. The senior indenture
does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured
debt.
DESCRIPTION
OF WARRANTS WE MAY OFFER
We may
issue warrants to purchase debt securities, preferred stock, common stock or any combination of the foregoing. We may issue warrants
independently or together with any other securities we offer under a prospectus supplement. The warrants may be attached to or separate
from the securities. We will issue each series of warrants under a separate warrant agreement to be entered into between a warrant agent
and us. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligations or relationship
of agency or trust for or with holders or beneficial owners of warrants. The following outlines some of the general terms and provisions
of the warrants that we may issue from time to time. When we issue warrants, we will provide the specific terms of the warrants and the
applicable warrant agreement in a prospectus supplement and any related free writing prospectuses and such terms may differ from those
described below. To the extent the information contained in the prospectus supplement differs or free writing prospectuses from this
summary description, you should rely on the information in the prospectus supplement or free writing prospectuses.
The following
description, and any description of the warrants included in a prospectus supplement, may not be complete and is subject to and qualified
in its entirety by reference to the terms and provisions of the applicable warrant agreement.
Equity
Warrants
We will
describe in the applicable prospectus supplement and any related free writing prospectuses the terms of the preferred stock warrants
or common stock warrants being offered, the warrant agreement relating to the preferred stock warrants or common stock warrants and the
warrant certificates representing the preferred stock warrants or common stock warrants, including, as applicable:
|
·
|
the
title of the warrants;
|
|
·
|
the
securities for which the warrants are exercisable;
|
|
·
|
the
price or prices at which the warrants will be issued;
|
|
·
|
if
applicable, the number of warrants issued with each share of preferred stock or share of
common stock;
|
|
·
|
if
applicable, the date on and after which the warrants and the related preferred stock or common
stock will be separately transferable;
|
|
·
|
the
date on which the right to exercise the warrants will commence, and the date on which the
right will expire;
|
|
·
|
the
maximum or minimum number of warrants which may be exercised at any time;
|
|
·
|
information
with respect to book-entry procedures, if any;
|
|
·
|
a
discussion of the material U.S. federal income tax considerations applicable to exercise
of the warrants; and
|
|
·
|
any
other terms of the warrants, including terms, procedures and limitations relating to the
exchange and exercise of the warrants.
|
Unless
otherwise provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses,
holders of equity warrants will not be entitled, by virtue of being such holders, to vote, consent, receive dividends, receive notice
as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter, or to exercise any
rights whatsoever as stockholders.
Except
as provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, the
exercise price payable and the number of shares of common stock or preferred stock purchasable upon the exercise of each warrant will
be subject to adjustment in certain events, including the issuance of a stock dividend to holders of common stock or preferred stock
or a stock split, reverse stock split, combination, subdivision or reclassification of common stock or preferred stock. In lieu of adjusting
the number of shares of common stock or preferred stock purchasable upon exercise of each warrant, we may elect to adjust the number
of warrants. Unless otherwise provided in the applicable warrant agreement and corresponding prospectus supplement or any related free
writing prospectuses, no adjustments in the number of shares purchasable upon exercise of the warrants will be required until all cumulative
adjustments require an adjustment of at least 1% thereof. No fractional shares will be issued upon exercise of warrants, but we will
pay the cash value of any fractional shares otherwise issuable. Notwithstanding the foregoing, except as otherwise provided in the applicable
warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, in the event of any consolidation,
merger, or sale or conveyance of our assets as an entirety or substantially as an entirety, the holder of each outstanding warrant will
have the right to the kind and amount of shares of stock and other securities and property, including cash, receivable by a holder of
the number of shares of common stock or preferred stock into which each warrant was exercisable immediately prior to the particular triggering
event.
Debt
Warrants
We will
describe in the applicable prospectus supplement and any related free writing prospectuses the terms of the debt warrants being offered,
the warrant agreement relating to the debt warrants and the debt warrant certificates representing the debt warrants, including, as applicable:
|
·
|
the
title of the debt warrants;
|
|
·
|
the
aggregate number of the debt warrants;
|
|
·
|
the
price or prices at which the debt warrants will be issued;
|
|
·
|
the
designation, aggregate principal amount and terms of the debt securities purchasable upon
exercise of the debt warrants, and the procedures and conditions relating to the exercise
of the debt warrants;
|
|
·
|
the
designation and terms of any related debt securities with which the debt warrants are issued,
and the number of the debt warrants issued with each security;
|
|
·
|
the
date, if any, on and after which the debt warrants and the related debt securities will be
separately transferable;
|
|
·
|
the
principal amount of debt securities purchasable upon exercise of each debt warrant, and the
price at which the principal amount of the debt securities may be purchased upon exercise;
|
|
·
|
the
date on which the right to exercise the debt warrants will commence, and the date on which
the right will expire;
|
|
·
|
the
maximum or minimum number of the debt warrants that may be exercised at any time;
|
|
·
|
information
with respect to book-entry procedures, if any;
|
|
·
|
changes
to or adjustments in the exercise price of the debt warrants;
|
|
·
|
a
discussion of the material U.S. federal income tax considerations applicable to the exercise
of the debt warrants; and
|
|
·
|
any
other terms of the debt warrants and terms, procedures and limitations relating to the exercise
of the debt warrants.
|
As may
be permitted under the warrant agreement, holders may exchange debt warrant certificates for new debt warrant certificates of different
denominations, and may exercise debt warrants at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement and any related free writing prospectuses. Prior to the exercise of their debt warrants, holders of
debt warrants will not have any of the rights of holders of the securities purchasable upon the exercise and will not be entitled to
payments of principal, premium or interest on the securities purchasable upon the exercise of debt warrants.
Exercise
of Warrants
Each warrant
will entitle the holder of the warrant to purchase for cash at the exercise price provided in the applicable warrant agreement and corresponding
prospectus supplement or any related free writing prospectuses the principal amount of debt securities or shares of preferred stock or
shares of common stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date provided
in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses. After the close
of business on the expiration date, unexercised warrants will be void.
Holders
may exercise warrants as described in the applicable warrant agreement and corresponding prospectus supplement or any free writing prospectuses
relating to the warrants being offered. Upon receipt of payment and the warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office indicated in the applicable warrant agreement and corresponding prospectus
supplement or any related free writing prospectuses, we will, as soon as practicable, forward the debt securities, shares of preferred
stock or shares of common stock purchasable upon the exercise of the warrant. If less than all of the warrants represented by the warrant
certificate are exercised, we will issue a new warrant certificate for the remaining warrants.
DESCRIPTION
OF UNITS WE MAY OFFER
The following
description, together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses,
summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized
below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ
from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will
file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report
on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and
any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain
the terms of the units.
General
We may
issue units comprised of one or more shares of common stock, shares of preferred stock, debt securities and warrants in any combination.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of
a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified
date.
We will
describe in the applicable prospectus supplement the terms of the series of units, including:
|
·
|
the
designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances those securities may be held or transferred separately;
|
|
·
|
any
provisions of the governing unit agreement that differ from those described below; and
|
|
·
|
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of
the securities comprising the units.
|
The provisions
described in this section, as well as those described under “Description of Capital Stock We May Offer,” “Description
of Debt Securities We May Offer” and “Description of Warrants We May Offer” will apply to each unit and to any common
stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We may
issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each unit
agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or
trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent
will have no duty or responsibility in the event of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
We, the
unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced
by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so registered, despite any
notice to the contrary.
GLOBAL
SECURITIES
Book-Entry,
Delivery and Form
Unless
we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in
book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities
will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary (“DTC”), and registered
in the name of Cede & Co., the partnership nominee of DTC. Unless and until it is exchanged for individual certificates evidencing
securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary
to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of
the successor depositary.
DTC has
advised us that it is:
|
·
|
a
limited-purpose trust company organized under the New York Banking Law;
|
|
·
|
a
“banking organization” within the meaning of the New York Banking Law;
|
|
·
|
a
member of the Federal Reserve System;
|
|
·
|
a
“clearing corporation” within the meaning of the New York Uniform Commercial
Code; and
|
|
·
|
a
“clearing agency” registered pursuant to the provisions of Section 17A of the
Exchange Act.
|
DTC holds
securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts,
thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities
brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities
Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users
of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants,
that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable
to DTC and its participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on
DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner,
is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written
confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details
of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they
purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants
acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the
global securities, except under the limited circumstances described below.
To facilitate
subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership
nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with
DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities.
DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants
to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping
account of their holdings on behalf of their customers.
So long
as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary
and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement
for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to us and where
certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance
of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants
and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect
from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to
determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC
will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights
of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified
in a listing attached to the omnibus proxy.
So long
as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner
of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the
limited circumstances described below and unless otherwise provided in the description of the applicable securities herein or in the
applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled
to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated
party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory
to the applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt
of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records.
Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility
of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption
proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments
to the beneficial owners is the responsibility of direct and indirect participants.
Except
under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their
names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and
its participants to exercise any rights under the securities and the indenture.
The laws
of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws
may impair the ability to transfer or pledge beneficial interests in securities.
DTC may
discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to
us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed
and delivered.
As noted
above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests
in those securities. However, if:
|
·
|
DTC
notifies us that it is unwilling or unable to continue as a depositary for the global security
or securities representing such series of securities or if DTC ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to be registered and a successor
depositary is not appointed within 90 days of the notification to us or of our becoming aware
of DTC’s ceasing to be so registered, as the case may be;
|
|
·
|
we
determine, in our sole discretion, not to have such securities represented by one or more
global securities; or
|
|
·
|
an
event of default has occurred and is continuing with respect to such series of securities,
|
we will
prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest
in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities
in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based
upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear
and Clearstream
If so provided
in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A. (“Clearstream”),
or Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), either directly if you are a participant
in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear
will hold interests on behalf of their respective participants through customers’ securities accounts in the names of Clearstream
and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers’
securities accounts in such depositaries’ names on DTC’s books.
Clearstream
and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating
organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry
changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear
or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream,
on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any
beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems
may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market
transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected
through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S.
depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case
may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European
time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver
instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the
global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants
in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due to
time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security
from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or
Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately
following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security
by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement
date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or
Clearstream following DTC’s settlement date.
Other
The information
in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from
sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely
as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations
and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities
and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective
participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the
foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such procedures may
be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC,
Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective operations.
PLAN
OF DISTRIBUTION
We may
sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination
of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be
distributed from time to time in one or more transactions:
|
·
|
at
a fixed price or prices, which may be changed;
|
|
·
|
at
market prices prevailing at the time of sale;
|
|
·
|
at
prices related to such prevailing market prices; or
|
Each time
that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method
of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the securities
and the proceeds to us, if applicable.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers
to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus
supplement.
If a dealer
is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter
is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter
at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make
resales of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the
underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may
sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell
the securities at varying prices to be determined by the dealer.
Any compensation
paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act
of 1933, as amended (the “Securities Act”), and any discounts and commissions received by them and any profit realized by
them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments
they may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common
stock will be listed on the Nasdaq Global Select Market, but any other securities may or may not be listed on a national securities exchange.
To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain
or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the
sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if
any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the
open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to
stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
We may
engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition,
we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties
may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so,
the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The specific
terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters,
dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they
receive compensation.
LEGAL
MATTERS
The validity
of the securities being offered hereby will be passed on by Dentons US LLP. Any underwriters, dealers or agents will also be advised
about the validity of the securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
EXPERTS
The consolidated
financial statements of Immunic, Inc. as of December 31, 2019 and 2018 and for each of the two years in the period ended December 31,
2019 incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2019, have been so
incorporated in reliance on the report of Baker Tilly US, LLP, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting (which report contains an explanatory paragraph describing conditions that raise substantial
doubt about our ability to continue as a going concern as of the date of such report as described in Note 1 to the consolidated financial
statements).
4,500,000
Shares
Immunic,
Inc.
Common
Stock
Sole
Book-Running Manager
Piper
Sandler
Co-Managers
Ladenburg
Thalmann
Roth
Capital Partners
Aegis
Capital Corp.
July
15, 2021
Immunic (NASDAQ:IMUX)
Historical Stock Chart
From Mar 2024 to Apr 2024
Immunic (NASDAQ:IMUX)
Historical Stock Chart
From Apr 2023 to Apr 2024