As filed with the Securities and Exchange
Commission on November 19, 2021
Registration No. 333-254996
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
Amendment No. 1
To
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Hepion
Pharmaceuticals, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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46-2783806
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(State
or other jurisdiction
of incorporation or organization)
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(I.R.S.
Employer
Identification No.)
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399
Thornall Street, First Floor
Edison,
NJ 08837
(732)
902-4000
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Robert
Foster
Chief
Executive Officer
Hepion
Pharmaceuticals, Inc.
399
Thornall Street, First Floor
Edison,
NJ 08837
(732)
902-4000
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Jeffrey
J. Fessler
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza, 39th Floor
New
York, New York 10112
(212)
653-8900
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans,
please check the following box. o
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer o
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Accelerated
filer o
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Non-accelerated
filer x
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Smaller
reporting company x
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Emerging
growth company o
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. o
CALCULATION
OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount to be
Registered/Proposed
Maximum Offering
Price Per Unit/
Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee (2)
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Common Stock
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Preferred Stock
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Debt Securities
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Warrants
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Units
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Total
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$
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350,000,000
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(1)
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$
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38,185
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(3)
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(1) An
indeterminate number of securities or aggregate principal amount, as the case may be, of common stock, preferred stock, debt securities
and warrants are being registered hereunder as may from time to time be offered at indeterminate prices as shall have an aggregate
offering price not to exceed $350,000,000. If any debt securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to
exceed $350,000,000, less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder
may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per unit
will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered
hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common stock and
preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered
hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional
number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar
transactions.
(2) The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
(3) Previously paid.
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and we are not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
Subject to completion, dated
November 19, 2021
$350,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities,
warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually
or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding $350,000,000.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series
of securities, we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus
supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. We
may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should
read carefully this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents
incorporated by reference herein or therein before you invest in any of our securities.
The
specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one
or more supplements to this prospectus. This prospectus may not be used to consummate sales of any of these securities unless
it is accompanied by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus
supplement.
Our common stock is presently
listed on the Nasdaq Capital Market under the symbol “HEPA.” On November 18, 2021, the last reported sale price of
our common stock was $1.31 per share. The applicable prospectus supplement will contain information, where applicable, as to
any other listing on the Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus
supplement.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers
or through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this
prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement.
If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being
delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The price to
the public of such securities and the net proceeds we expect to receive from any such sale will also be included in a prospectus
supplement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these
risks. Additional risks will be described in the related prospectus supplements under the heading “Risk Factors”.
You should review that section of the related prospectus supplements for a discussion of matters that investors in our securities
should consider.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to
the contrary is a criminal offense.
The
date of this prospectus is , 2021.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings of common
stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually
or as units comprised of a combination of one or more of the other securities in one or more offerings up to a total dollar amount
of $350,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell any
type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. We may also add, update or change in a prospectus supplement or free writing
prospectus any of the information contained in this prospectus or in the documents we have incorporated by reference into this
prospectus. This prospectus, together with the applicable prospectus supplement, any related free writing prospectus and the documents
incorporated by reference into this prospectus and the applicable prospectus supplement, will include all material information
relating to the applicable offering. You should carefully read both this prospectus and the applicable prospectus supplement and
any related free writing prospectus, together with the additional information described under “Where You Can Find More Information,”
before buying any of the securities being offered.
We
have not authorized anyone to provide any information other than that contained in this prospectus or in any prospectus supplement
or free writing prospectus prepared by or on behalf of us or to which we may 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 have not authorized
anyone to provide you with different or additional information. This prospectus, any applicable supplement to this prospectus
or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus
or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction
to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of
the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This
prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on independent
industry publications and other publicly available information. Although we believe that these sources are reliable, we do not
guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we
are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated
herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including
those discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Accordingly, investors should not place undue reliance on this information.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the heading “Where You Can Find More Information.”
Company
References
In
this prospectus, “Hepion,” “the Company,” “we,” “us,” and “our” refer
to Hepion Pharmaceuticals, Inc., a Delaware corporation, and its subsidiaries, unless the context otherwise requires.
OUR
BUSINESS
Business
Overview
Hepion Pharmaceuticals, Inc. is a biopharmaceutical
company headquartered in Edison, New Jersey, focused primarily on the development of drug therapy for treatment of chronic liver diseases.
The main therapeutic approach is to target fibrosis and related complications such as hepatocellular carcinoma (“HCC”) associated
with non-alcoholic steatohepatitis (“NASH”), viral hepatitis, and other liver diseases. Our lead compound CRV431 is a cyclophilin
inhibitor is being developed to offer benefits to address these multiple complex pathologies. CRV431 is a cyclophilin inhibitor that
targets multiple pathologic pathways involved in the progression of liver disease. Preclinical studies with CRV431 in NASH models demonstrated
consistent reductions in liver fibrosis and additional reductions in inflammation and cancerous tumors in some studies. CRV431 additionally
showed in vitro antiviral activity towards hepatitis B, C, and D viruses which also trigger liver disease. Preclinical studies
also have shown potentially therapeutic activities of CRV431 in experimental models of acute lung injury, platelet activation, SARS-CoV-2
coronavirus replication, and HCC.
We have completed a Phase 1 program demonstrating
safety, tolerability, and establishing the pharmacokinetics (PK) profile for CRV431. Our program consisted of three different clinical
trials with CRV431, administered orally once daily, that included: 1) a Single Ascending Dose (SAD) study; 2) a Multiple Ascending Dose
(MAD) study; and 3) a Drug-Drug Interaction (DDI) study. The SAD, MAD, and DDI studies were comprised of 32, 25, and 18 healthy subjects,
respectively. Additionally, in the SAD study, 8 of the 32 subjects received placebo (24 received CRV431).
CRV431 appeared to be well-tolerated in the
Phase 1 program, and there were no deaths or serious adverse effects (SAEs). The few adverse effects (AEs) observed were mild to moderate
and mostly unrelated to study drug. The PK profile of each subject was characterized and CRV431 blood exposures were similar to those
needed to elicit efficacy in the preclinical studies.
We recently completed a Phase 2a study (called
the ‘AMBITION’ trial) in subjects with NASH and presumed fibrosis scores of F2 and F3, as characterized by biomarkers indicative
of advancing disease. The AMBITION study was designed to investigate safety, tolerability, and pharmacokinetics in NASH subjects for
CRV431 administered once daily orally versus placebo. A total of 12 subjects received 75 mg CRV431 and 17 subjects received 225
mg CRV431. This was a placebo controlled study, wherein a total of 14 subjects received placebo. Study drug was administered on Day 1
of the trial and all subjects received either CRV431 or placebo for a total of 28 days. There was a two week safety follow-up period
after dosing was completed. The AMBITION trial met all primary endpoints (safety, tolerability, and PK). CRV431 was well tolerated and
there were no deaths or SAEs during the trial. Pharmacodynamic biomarkers of efficacy (e.g., ALT and Pro-C3) improved,. Preliminary responder
analyses were performed using discriminate analysis to evaluate the ability of multiple variables to correctly classify subjects as either
‘responders’ or ‘non-responders’. We now are in the planning and preparation phase for a larger phase 2B study
in NASH subjects, to include histologic evaluation of NASH resolution through paired liver biopsies over 12 months.
NASH is a severe form of non-alcoholic fatty liver
disease (NAFLD) characterized by inflammation and fibrosis (scarring) in the liver that can progress to cirrhosis, liver failure, and
liver cancer. The prevalence of NAFLD, which affects approximately 25% of the global population, and NASH, which develops in approximately
20% to 25% of NAFLD patients, is growing and is driven primarily by the worldwide obesity epidemic. Patients with NASH frequently have
other significant metabolic co-morbidities such as obesity, high blood sugar, elevated cholesterol and triglycerides, and systemic hypertension
(a constellation commonly referred to as metabolic syndrome), and these further contribute to the risk of cardiovascular disease. The
number of NASH cases in the US is projected to expand from 16.5 million in 2015 to 27 million in 2030, with similar prevalence growth
expected in Europe. Diet and exercise are currently the standard of care for NAFLD and NASH, but adherence is poor, and there remains
a high unmet need in the treatment of NASH.
NASH is the form of liver disease that is triggered
by what has come to be known as the “Western diet”, characterized especially by high-fat, high-sugar, and processed foods.
Among the effects of a prolonged Western diet is fat accumulation in liver cells (steatosis) which is described as NAFLD and can
predispose cells to injury. NAFLD may evolve into NASH when the fatty liver begins to progress through stages of cell injury, inflammation,
fibrosis, and carcinogenesis. People who develop NASH often have additional predisposing conditions such as diabetes and hypertension,
but the exact biochemical events that trigger and maintain the progression are not well known. Many people in the early stages of disease
do not have significant clinical symptoms and therefore do not know that they have it. NASH becomes evident and a major concern when the
liver becomes fibrotic and puts the individual at increased risk of developing cirrhosis and other complications. Individuals with advanced
liver fibrosis have significantly higher risk of developing liver cancer, although cancer may also arise in some patients before significant
hepatitis or fibrosis. NASH is increasing worldwide at an alarming rate due to the spread of the Western diet, obesity, and other related
conditions. Approximately 4-5% of the global population is estimated to have NASH, including the USA. NASH is the most common reason for
individuals requiring a liver transplant in the USA. Considering the serious outcomes linked to advancing NASH, the economic and social
burden of the disease is enormous. There are no simple blood tests to diagnose or track the progression of NASH, and no drugs are approved
to specifically treat the disease.
HCC is the major type of liver cancer, accounting
for 85-90% of all cases. NASH, hepatitis virus infection, and alcohol consumption all are major causes of HCC. Globally, over 700,000
people die each year from liver cancer which is a leading cause of all cancer-related deaths. The high mortality is due, in
part, to the fact that only around half of all people who develop HCC (in developed countries) receive the diagnosis early enough to
have an opportunity for therapeutic intervention. Additionally, recurrence rates are high, and current treatment options remain limited.
HCC is a type of cancer in which the tissue microenvironment
plays a major role in its development. In most cases, HCC is preceded by significant, long-term damage to liver cells, inflammation, and
fibrosis. One-third of people with cirrhosis, a very advanced stage of liver disease, will eventually progress to HCC. The chronic injury
to the liver leads to many genetic mutations that eventually lead to transformation of cells and formation of tumors. The noxious tissue
microenvironment also promotes cancer by altering the function of immune cells and endothelial cells which form tumor-supporting blood
vessels. These various events underscore the importance of preventing or slowing liver injury and scarring as early and effectively as
possible in order to decrease the progression of liver cancer.
Viral hepatitis may be linked to one or more viruses
including hepatitis A, B, C, D, or E. Hepatitis B virus (“HBV”) is one of many hepatitis viruses that selectively infect human
liver cells and can establish persistent infections under certain conditions. Chronic infections, especially by HBV, HCV, and HDV, cause
progressive liver inflammation, fibrosis, cirrhosis, and cancer. Collectively, these infections represent one of the 3 major triggers
of progressive liver disease (NAFLD/NASH and alcohol being the others).
An HBV vaccine is available that, if administered prior
to HBV infection, assists the body in neutralizing the virus and blocking infection. However, vaccination is not efficacious
for people who are already infected with HBV, and the vaccine has not been historically available to everyone. As a result, an estimated
240 million people worldwide have chronic HBV infection. Anti-HBV medications are used widely by chronically infected individuals but
usually are only effective in decreasing viral replication and viremia (virus in the blood), and NOT in eradicating HBV from the liver.
This is because HBV, unlike HCV, has evolved clever ways of persisting in liver cells and evading the immune system. Thus, despite vaccines
and anti-viral medications, chronic HBV infection remains a huge global health problem. Chronic HBV infection results in the deaths of
approximately 350,000 people per year. A similar number of people die each year from cirrhosis and other complications arising
from HBV.
CRV431
We are developing CRV431 as our lead molecule.
CRV431 is a compound that binds and inhibits the function of a specific class of isomerase enzymes called cyclophilins that mainly regulate
protein folding. Many closely related isoforms of cyclophilins exist in humans. Cyclophilins A, B, and D are the best characterized cyclophilin
isoforms. Inhibition of cyclophilins has been shown in the scientific literature to have therapeutic effects in a variety of experimental
models, including liver disease models. In preclinical in vitro and/or in vivo experiments to date CRV431
decreased liver fibrosis, liver inflammation, liver tumors, and titers of HBV, HCV, HDV, and HIV-1. Importantly, reduction in liver fibrosis
by CRV431 was observed in vivo in several experimental models and studies of NASH and liver fibrosis. Findings to date suggest
that CRV431 might treat certain inciting agents of liver disease such as hepatitis viruses and also the ensuing disease processes resulting
from those agents such as fibrosis.
Cyclophilins are pleiotropic enzymes that play
a role in injury and steatosis through mechanisms including cell death occurring through mitochondrial pore permeability (cyclophilin
D). Inhibition of cyclophilin D, therefore, may play an important role in protection from cell death. Cyclophilin A binding to CD147 is
known to play a role in inflammation, cyclophilin B plays a role in fibrosis through collagen production, and cyclophilins also play a
role in cirrhosis and cancer (e.g., cell proliferation and metastasis). Cyclophilin inhibition with CRV431, therefore, may play an important
role in reducing liver disease.
To date, we have completed a number of separate
preclinical animal efficacy studies of CRV431 to assess antifibrotic activity. These studies were conducted by independent laboratory
collaborations at, for example, The Scripps Research Institute (San Diego, CA), SMC Corporation (Tokyo, Japan), and Physiogenex S.A.S.
(France), Each of these studies demonstrated consistent and significant reductions in fibrosis in mice and rats. CRV431 was also tested
by FibroFind Ltd (Newcastle, UK) in ex vivo Precision Cut Liver Slices and in Precision Cut Lung Slices obtained from human donors.
Again, CRV431 demonstrated an antifibrotic effect in the human tissue that was consistent with the animal study findings. These studies
provide support of advancing CRV431 into clinical trials for NASH, and potentially additional indications where fibrosis plays a role.
Many viruses have been shown to recruit cellular
(“host”) cyclophilins into the life cycles of the viruses and therefore assist in viral replication and evasion of host immunity.
These viruses include HBV, HCV, HDV, HIV-1 and several coronaviruses. CRV431 was found in in vitro experiments to decrease replication
of HBV, HCV, HDV, HIV-1, and the SARS-CoV-2 coronavirus responsible for the COVID-19 pandemic. SARS-CoV-2 infection may, in some instances,
be associated with acute lung injury and platelet-mediated thrombotic disorders. In experimental models, CRV431 decreased acute lung inflammation
and platelet activation, and therefore CRV431 may have therapeutic benefits in COVID-19 patients.
Data in various cell lines of either transfected
or infected HBV demonstrates nanomolar efficacy (EC50 values) and micromolar toxicity (CC50 values). The selective index (“SI”),
therefore, is wide and suggests that CRV431 presents a viable clinical drug candidate for the treatment of viral infections, including
HBV. Additional testing in a transgenic mouse model of HBV indicated that CRV431 reduced HBV DNA in the liver and HBsAg in serum. CRV431
is orally active and appears to be well tolerated.
Artificial Intelligence (AI)
We have created a proprietary AI tool called, “AI-POWRTM to
optimize the outcomes of our current clinical programs and to potentially identify novel indications for CRV431 and possibly identify
new targets and new drug molecules to broaden our pipeline.
AI-POWR™ is our acronym for Artificial Intelligence
- Precision Medicine; Omics that include genomics, proteomics, metabolomics, transcriptomics, and
lipidomics; World database access; and Response and clinical outcomes. AI-POWR™ allows for
the selection of novel drug targets, biomarkers, and appropriate patient populations. AI-POWR™ is used to identify responders from
big data sources using our multi-omics approach, while modelling inputs and scenarios to increase response rates. The components of AI-POWR™
include access to publicly available databases, and in-house genomic and multi-omic big data, processed via machine learning algorithms.
We believe AI outputs will allow for improved response outcomes through enhanced patient selection, biomarker selection and drug target
selection. We believe AI outputs will help identify responders a priori and reduce the need for large sample sizes through
study design enrichment.
We intend to use AI-POWR™ to help identify
which NASH patients will best respond to CRV431. It is anticipated that applying this proprietary platform to our drug development program
will ultimately save time, resources and money. In so doing, we believe that AI-POWR™ is a risk-mitigation strategy that should
reap benefits all the way through from clinical trials to commercialization.
We believe that NASH is a heterogenous disease
and we need to have a better understanding of interactions among proteins, genes, lipids, metabolites, and other disease variables to
help predict disease progression, regression, and responses to CRV431. All of this is further complicated by variable drug concentrations,
patient traits and temporal factors. AI-POWR™ is designed to address many of the typical challenges in drug development, as we
believe we can use our proprietary platform to shorten development timelines and increase the delta between placebo and treatment groups.
AI-POWR™ was used to assist with our understanding and interpretation of our Phase 2a NASH program and may help identify additional
potential indications for CRV431 to expand our footprint in the cyclophilin inhibition therapeutic space.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such
securities, either individually or in units, from time to time under this prospectus, together with any applicable prospectus
supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at the time of offering.
If we issue any debt securities at a discount from their original stated principal amount, then, for purposes of calculating the
total dollar amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities
as the total original principal amount of the debt securities. Each time we offer securities under this prospectus, we will provide
offerees with a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities
being offered, including, to the extent applicable:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity,
if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to
or adjustments in the conversion or exchange prices or rates and in the securities or
other property receivable upon conversion or exchange;
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restrictive
covenants, if any;
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voting
or other rights, if any; and
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important
United States federal income tax considerations.
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A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness
of the registration statement of which this prospectus is a part.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents acting
on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus
supplement will set forth the names of any underwriters, dealers or agents involved in the sale of securities described in that
prospectus supplement and any applicable fee, commission or discount arrangements with them, details regarding any over-allotment
option granted to them, and net proceeds to us. The following is a summary of the securities we may offer with this prospectus.
Common
Stock
We currently have authorized
120,000,000 shares of common stock, par value $0.0001 per share. As of November 15, 2021, 76,225,254 shares of common stock were issued
and outstanding. We may offer shares of our common stock either alone or underlying other registered securities convertible into
or exercisable for our common stock. Holders of our common stock are entitled to such dividends as our board of directors (the “Board
of Directors” or “Board”) may declare from time to time out of legally available funds, subject to the preferential
rights of the holders of any shares of our preferred stock that are outstanding or that we may issue in the future. Currently, we do
not pay any dividends on our common stock. Each holder of our common stock is entitled to one vote per share. In this prospectus, we
provide a general description of, among other things, the rights and restrictions that apply to holders of our common stock.
Preferred
Stock
We
currently have authorized 20,000,000 shares of preferred stock, par value $0.0001. 1,250,000 of such shares are designated as Series A
convertible preferred stock and 11,000 of such shares are designated as Series C convertible preferred stock. As of November 15,
2021, there were 85,581 shares of Series A convertible preferred stock outstanding and 1,806 shares of Series C convertible
preferred stock outstanding. Any authorized and undesignated shares of preferred stock may be issued from time to time in one or more
additional series pursuant to a resolution or resolutions providing for such issue duly adopted by our Board of Directors (authority
to do so being hereby expressly vested in the Board of Directors). The Board of Directors is further authorized, subject to limitations
prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations
or restrictions thereof, of any wholly unissued series of preferred stock, including without limitation authority to fix by resolution
or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking
fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any
such series and the designation thereof, or any of the foregoing.
The
rights, preferences, privileges and restrictions granted to or imposed upon any series of preferred stock that we offer and sell
under this prospectus and applicable prospectus supplements will be set forth in a certificate of designation relating to the
series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate
of designation that describes the terms of the series of preferred stock we are offering before the issuance of shares of that
series of preferred stock. You should read any prospectus supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of preferred stock being offered, as well as the complete certificate of designation
that contains the terms of the applicable series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated and convertible into shares of our
common stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as the
“debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered
between us and a trustee; forms of the senior and subordinated indentures are included as an exhibit to the registration statement
of which this prospectus is a part. The indentures do not limit the amount of securities that may be issued under it and provides
that debt securities may be issued in one or more series. The senior debt securities will have the same rank as all of our other
indebtedness that is not subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth
in the applicable prospectus supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors
and preferred stockholders of our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities
being offered. This prospectus contains only general terms and provisions of the debt securities. The applicable prospectus supplement
will describe the particular terms of the debt securities offered thereby. You should read any prospectus supplement and any free
writing prospectus that we may authorize to be provided to you related to the series of debt securities being offered, as well
as the complete note agreements and/or indentures that contain the terms of the debt securities. Forms of indentures have been
filed as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of debt securities being offered will be incorporated by reference into the registration statement
of which this prospectus is a part from reports we file with the SEC.
Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue the warrants
by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate
from any offered securities. Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants
may be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our Board
of Directors will determine the terms of the warrants. This prospectus contains only general terms and provisions of the warrants.
The applicable prospectus supplement will describe the particular terms of the warrants being offered thereby. You should read
any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of
warrants being offered, as well as the complete warrant agreements that contain the terms of the warrants. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated by reference into the registration statement of
which this prospectus is a part from reports we file with the SEC.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities
in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement.
We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate
the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units. This
prospectus contains only a summary of certain general features of the units. The applicable prospectus supplement will describe
the particular features of the units being offered thereby. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements
that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and will
be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the
SEC.
Corporate
Information
We
were incorporated in the State of Delaware on May 15, 2013 for the purpose of holding certain FV-100 assets of Synergy Pharmaceuticals Inc.,
or Synergy. We were a majority-owned subsidiary of Synergy Pharmaceuticals Inc. (Synergy) until February 18, 2014, the
date Synergy completed the spinout of our shares of common stock. On July 18, 2019, we filed a certificate of amendment to our
certificate of incorporation to change the Company’s name from “ContraVir Pharmaceuticals, Inc.” to “Hepion
Pharmaceuticals, Inc.” The name change became effective as of July 18, 2019.
Our
principal executive offices are located at 399 Thornall Street, First Floor, Edison, New Jersey 08837. Our telephone number is
(732) 902-4000 and our website address is www.hepionpharma.com. The information on our website is not a part of, and should
not be construed as being incorporated by reference into, this registration statement or the accompanying prospectus.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains, and the prospectus supplement applicable
to each offering of our securities, will contain a discussion of the risks applicable to an investment in our securities. Prior
to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the
heading “Risk Factors” in this prospectus and the applicable prospectus supplement, together with all of the other
information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this
prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 31, 2021, and any updates described in our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference,
and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future and any prospectus
supplement related to a particular offering. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence
of any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
FORWARD-LOOKING
STATEMENTS
This
prospectus and any accompanying prospectus supplement, including the documents that we incorporate by reference, contains 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”). Any statements in this
prospectus and any accompanying prospectus supplement about our expectations, beliefs, plans, objectives, assumptions or future
events or performance are not historical facts and are forward-looking statements. These statements are often, but not always,
made through the use of words or phrases such as “believe,” “will,” “expect,” “anticipate,”
“estimate,” “intend,” “plan” and “would.” For example, statements concerning financial
condition, possible or assumed future results of operations, growth opportunities, industry ranking, plans and objectives of management,
markets for our common stock and future management and organizational structure are all forward-looking statements. Forward-looking
statements are not guarantees of performance. They involve known and unknown risks, uncertainties and assumptions that may cause
actual results, levels of activity, performance or achievements to differ materially from any results, levels of activity, performance
or achievements expressed or implied by any forward-looking statement.
Any
forward-looking statements are qualified in their entirety by reference to the risk factors discussed throughout this prospectus
and any accompanying prospectus supplement. Some of the risks, uncertainties and assumptions that could cause actual results to
differ materially from estimates or projections contained in the forward-looking statements include, but are not limited to:
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Our
ability to compete with larger better financed pharmaceutical companies;
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Our
uncertainty of developing marketable products;
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Our
ability to develop and commercialize our products;
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Risks associated with delays, increased costs and funding shortages
caused by the COVID-19 pandemic;
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Our
ability to obtain regulatory approvals;
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Our
ability to maintain and protect intellectual property rights;
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The
inability to raise additional future financing and lack of financial and other resources;
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Our
ability to control product development costs;
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We
may not be able to attract and retain key employees;
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We
may not be able to compete effectively;
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We
may not be able enter into new strategic collaborations;
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Changes
in government regulation affecting product candidates could increase our development
costs;
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Our
involvement in patent and other intellectual property litigation could be expensive and
could divert management’s attention;
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The
possibility that there will be no market acceptance for our products; and
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Changes
in third-party reimbursement policies could adversely affect potential future sales of
any of our products that are approved for marketing.
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The
foregoing list sets forth some, but not all, of the factors that could affect our ability to achieve results described in any
forward-looking statements. You should read this prospectus and any accompanying prospectus supplement and the documents that
we reference herein and therein and have filed as exhibits to the registration statement, of which this prospectus is part, completely
and with the understanding that our actual future results may be materially different from what we expect. You should assume
that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on the
front cover of this prospectus or such prospectus supplement only. Because the risk factors referred to on page 6 of
this prospectus and incorporated herein by reference, could cause actual results or outcomes to differ materially from those expressed
in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements.
Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to
update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect
the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which
factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
We qualify all of the information presented in this prospectus and any accompanying prospectus supplement, and particularly our
forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes, including
the development and commercialization of our products, research and development, general and administrative expenses, license
or technology acquisitions, and working capital and capital expenditures. We may also use the net proceeds to repay any debts
and/or invest in or acquire complementary businesses, products or technologies, although we have no current commitments or agreements
with respect to any such investments or acquisitions as of the date of this prospectus. We have not determined the amount of net
proceeds to be used specifically for the foregoing purposes. As a result, our management will have broad discretion in the allocation
of the net proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds
of any sale of the securities. Pending use of the net proceeds, we intend to invest the proceeds in short-term, investment-grade,
interest-bearing instruments.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors,
including, our future capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any.
Therefore, we will retain broad discretion in the use of the net proceeds.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock
that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer, we will describe the particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to
our Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and our bylaws, as amended (the
“Bylaws”) that are incorporated by reference into the registration statement of which this prospectus is a part or
may be incorporated by reference in this prospectus or any applicable prospectus supplement. The terms of these securities may
also be affected by Delaware General Corporation Law (“DGCL”). The summary below and that contained in any applicable
prospectus supplement or any related free writing prospectus are qualified in their entirety by reference to our Certificate of
Incorporation and our amended and restated bylaws.
As of the date of this
prospectus, our authorized capital stock consisted of 120,000,000 shares of common stock, $0.0001 par value per share, and 20,000,000 shares
of preferred stock. Our Board may establish the rights and preferences of the preferred stock from time to time. As of November 15, 2021,
there were 76,225,254 shares of our common stock issued and outstanding, 85,581 shares of Series A convertible preferred stock outstanding
and 1,806 shares of Series C convertible preferred stock outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote per share. Our Certificate of Incorporation, does not provide for cumulative voting.
Holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our Board out of legally
available funds. However, the current policy of our Board is to retain earnings, if any, for the operation and expansion of our
company. Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled to share ratably in all of
our assets which are legally available for distribution, after payment of or provision for all liabilities.
The
holders of our common stock have no preemptive, subscription, redemption or conversion rights.
Preferred
Stock
Our
Certificate of Incorporation provides that our Board may by resolution, without further vote or action by the stockholders, establish
one or more classes or series of preferred stock having the number of shares and relative voting rights, designation, dividend
rates, liquidation, and other rights, preferences, and limitations as may be fixed by them without further stockholder approval.
Once designated by our Board, each series of preferred stock will have specific financial and other terms that will be described
in a prospectus supplement. The description of the preferred stock that is set forth in any prospectus supplement is not complete
without reference to the documents that govern the preferred stock. These include our Certificate of Incorporation and any certificates
of designation that the Board may adopt. Prior to the issuance of shares of each series of preferred stock, the Board is
required by the DGCL and the Certificate of Incorporation to adopt resolutions and file a certificate of designation with the
Secretary of State of the State of Delaware. The certificate of designation fixes for each class or series the designations, powers,
preferences, rights, qualifications, limitations and restrictions, including, but not limited to, some or all of the following:
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the
distinctive designation of such series and the number of shares which shall constitute
such series, which number may be increased (except where otherwise provided by the Board
in creating such series) or decreased (but not below the number of shares thereof then
outstanding) from time to time by resolution of the Board;
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the
rate and manner of payment of dividends payable on shares of such series, including the
dividend rate, date of declaration and payment, whether dividends shall be cumulative,
and the conditions upon which and the date from which such dividends shall be cumulative;
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whether
shares of such series shall be redeemed, the time or times when, and the price or prices
at which, shares of such series shall be redeemable, the redemption price, the terms
and conditions of redemption, and the sinking fund provisions, if any, for the purchase
or redemption of such shares;
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the
amount payable on shares of such series and the rights of holders of such shares in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company;
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the
rights, if any, of the holders of shares of such series to convert such shares into,
or exchange such shares for, shares of common stock, other securities, or shares of any
other class or series of preferred stock and the terms and conditions of such conversion
or exchange;
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the
voting rights, if any, and whether full or limited, of the shares of such series, which
may include no voting rights, one vote per share, or such higher number of votes per
share as may be designated by the Board; and
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the
preemptive or preferential rights, if any, of the holders of shares of such series to
subscribe for, purchase, receive, or otherwise acquire any part of any new or additional
issue of stock of any class, whether now or hereafter authorized, or of any bonds, debentures,
notes, or other securities of the Company, whether or not convertible into shares of
stock with the Company.
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The
issuance of preferred stock may delay, deter or prevent a change in control.
The
description of preferred stock above and the description of the terms of a particular series of preferred stock in any applicable
prospectus supplement are not complete. You should refer to any applicable certificate of designation for complete information.
The
DGCL, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a
class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition
to any voting rights that may be provided for in the applicable certificate of designation.
All
shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock
issued upon the exercise of preferred stock warrants or subscription rights, if any.
Although
our Board has no intention at the present time of doing so, it could authorize the issuance of a series of preferred stock that
could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Series A
Preferred Stock
On
October 14, 2014, we filed a Certificate of Designation, Preference and Rights of Series A Convertible Preferred Stock
(the “Series A Preferred Stock”) with the Secretary of State of the State of Delaware. The number of shares of
Series A Preferred Stock designated is 1,250,000 and each share of Series A Preferred Stock has a stated value equal
to $10.00 (the “Series A Stated Value”).
Voting
Rights. Except as otherwise provided therein and as otherwise prohibited by law, the Series A
Preferred Stock shall have voting rights on an as converted basis. So long as any shares of Series A Preferred Stock are
outstanding, the Company shall not, without the affirmative vote of the Holders of the shares of the Series A Preferred Stock
then outstanding, (a) alter or change adversely the powers, preferences or rights given to the Series A Preferred Stock
or alter or amend the Certificate of Designation, (b) authorize or create any class of stock ranking as to dividends, redemption
or distribution of assets upon a Series A Liquidation (as defined herein) senior to or otherwise pari passu with the Series A
Preferred Stock, or (c) enter into any agreement with respect to the foregoing.
Liquidation. Upon
any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a “Series A Liquidation”),
the holders shall be entitled to receive out of the assets of the Company, whether such assets are capital or surplus, for each
share of Series A Preferred Stock an amount equal to 100% of the Series A Stated Value per share plus any other fees
or liquidated damages owing thereon before any distribution or payment shall be made to the holders of any junior securities,
and if the assets of the Company shall be insufficient to pay in full such amounts, then the entire assets to be distributed to
the holders shall be distributed among the holders ratably in accordance with the respective amounts that would be payable on
such shares if all amounts payable thereon were paid in full.
Conversions
at Option of Holder. Each share of Series A Preferred Stock shall be convertible into that number
of shares of Common Stock determined by dividing the Series A Stated Value of such share of Series A Preferred Stock
by $268.80 (the “Series A Conversion Price”), at the option of the holder, at any time and from time to time from
and after October 14, 2014.
Subsequent
Equity Sales. If, at any time while this Series A Preferred Stock is outstanding, the Company
sells or grants any option to purchase or sells or grants any right to reprice its securities, or otherwise disposes of or issues
(or announces any sale, grant or any option to purchase or other disposition) any common stock or common stock equivalents entitling
any person to acquire shares of common stock (a “Series A Subsequent Financing”) at an effective price per share
that is lower than the then Series A Conversion Price (such lower price, the “Series A Base Conversion Price”
and such issuances collectively, a “Series A Dilutive Issuance”) (if the holder of the common stock or common
stock equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating
conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection
with such issuance, be entitled to receive shares of common stock at an effective price per share that is lower than the Series A
Conversion Price, such issuance shall be deemed to have occurred for less than the Series A Conversion Price on such date
of the Series A Dilutive Issuance), the Series A Conversion Price then in effect shall be reduced to the Series A
Base Conversion Price. The holder’s rights under this section shall terminate upon the Company completing a Series A
Subsequent Financing at an effective price per share equal to or greater than the Series A Conversion Price then in effect
which results in minimum gross proceeds to the Company of $20 million.
Registration
Rights. In the event we close a Series A Subsequent Financing of common or preferred stock, which
does not include any warrants or convertible securities, at an effective price per share that is lower than 160% (“Series A
Premium Price”) of the then Series A Conversion Price (the “Series A Registration Price”) and the
purchasers of the securities in the Series A Subsequent Financing are given registration rights for such securities or such
securities are issued on a registered basis, the holders shall receive at such time (i) equivalent registration rights for
the Series A Preferred Stock and the shares issuable upon conversion of the Series A Preferred Stock in the event purchasers
of the securities in the Series A Subsequent Financing receive registration rights or (ii) demand registration rights
in the event purchasers of the securities in the Series A Subsequent Financing receive registered shares. In the event, the
Series A Subsequent Financing includes warrants or other convertible securities, the Series A Premium Price shall increase
by 1% for every 1% of warrant or other convertible security coverage in the Subsequent Financing. The holder’s rights under
this section shall terminate upon us completing a Series A Subsequent Financing at an effective price per share equal to
or greater than the Series A Registration Price which results in minimum gross proceeds to us of $20 million.
Series C
Convertible Preferred Stock
On
July 2, 2018, we filed a Certificate of Designation, Preference and Rights of Series C Convertible Preferred Stock (the
“Series C Convertible Preferred Stock”) with the Secretary of State of the State of Delaware. The number of shares
of Series C Convertible Preferred Stock designated is 11,000.
Conversion. Each
share of Series C Convertible Preferred Stock is convertible at the option of the holder at any time, into the number of
shares of our common stock determined by dividing the $1,000 stated value per share of the Series C Convertible Preferred
Stock by a conversion price of $108.50 per share. In addition, the conversion price per share is subject to adjustment for stock
dividends, distributions, subdivisions, combinations or reclassifications. Subject to limited exceptions, a holder of the Series C
Convertible Preferred Stock does not have the right to convert any portion of the Series C Convertible Preferred Stock to
the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in excess
of 9.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of
our assets, tender or exchange offers, reclassifications or share exchanges in which our common stock is effectively converted
into or exchanged for other securities, cash or property, we consummate a business combination in which another person acquires
50% of the outstanding shares of our common stock, or any person or group becomes the beneficial owner of 50% of the aggregate
ordinary voting power represented by our issued and outstanding common stock, then, upon any subsequent conversion of the Series C
Convertible Preferred Stock, the holders of the Series C Convertible Preferred Stock will have the right to receive any shares
of the acquiring corporation or other consideration it would have been entitled to receive if it had been a holder of the number
of shares of common stock then issuable upon conversion in full of the Series C Convertible Preferred Stock.
Dividends. Holders
of Series C Convertible Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis)
in the same form as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of
common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by
law, the Series C Convertible Preferred Stock has no voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders
of Series C Convertible Preferred Stock will be entitled to receive out of our assets, whether capital or surplus, the same
amount that a holder of common stock would receive if the Series C Preferred Stock were fully converted.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series C Convertible Preferred
Stock. Shares of Series C Convertible Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking
fund or analogous provisions.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and amended and restated bylaws, which are summarized in the following paragraphs,
may have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change
in control, including changes a stockholder might consider favorable. Such provisions may also prevent or frustrate attempts by
our stockholders to replace or remove our management. In particular, the Certificate of Incorporation and amended and restated
bylaws and Delaware law, as applicable, among other things:
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the board of directors with the ability to alter the bylaws without stockholder approval;
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place
limitations on the removal of directors; and
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provide
that vacancies on the board of directors may be filled by a majority of directors in
office, although less than a quorum.
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These
provisions are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of us to first negotiate with its board. These provisions may delay or prevent someone from
acquiring or merging with us, which may cause our market price of our common stock to decline.
Blank
Check Preferred. Our Board is authorized to create and issue from time to time, without stockholder
approval, up to an aggregate of 20,000,000 shares of preferred stock in one or more series and to establish the number of shares
of any series of preferred stock and to fix the designations, powers, preferences and rights of the shares of each series and
any qualifications, limitations or restrictions of the shares of each series.
The
authority to designate preferred stock may be used to issue series of preferred stock, or rights to acquire preferred stock, that
could dilute the interest of, or impair the voting power of, holders of the common stock or could also be used as a method of
determining, delaying or preventing a change of control.
Advance
Notice Bylaws. The Bylaws contain an advance notice procedure for stockholder proposals to be
brought before any meeting of stockholders, including proposed nominations of persons for election to our Board of Directors.
Stockholders at any meeting will only be able to consider proposals or nominations specified in the notice of meeting or brought
before the meeting by or at the direction of our Board of Directors or by a stockholder who was a stockholder of record on the
record date for the meeting, who is entitled to vote at the meeting and who has given our corporate secretary timely written notice,
in proper form, of the stockholder’s intention to bring that business before the meeting. Although the Bylaws do not give
our Board of Directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business
to be conducted at a special or annual meeting, the Bylaws may have the effect of precluding the conduct of certain business at
a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.
Interested
Stockholder Transactions. We are subject to Section 203 of the DGCL which, subject to certain
exceptions, prohibits “business combinations” between a publicly-held Delaware corporation and an “interested
stockholder,” which is generally defined as a stockholder who becomes a beneficial owner of 15% or more of a Delaware corporation’s
voting stock for a three-year period following the date that such stockholder became an interested stockholder.
Limitations
on Liability, Indemnification of Officers and Directors and Insurance
The
DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders
for monetary damages for breaches of directors’ fiduciary duties as directors and our amended and restated certificate of
incorporation will include such an exculpation provision. Our certificate of incorporation and by-laws will include provisions
that indemnify, to the fullest extent allowable under the DGCL, the personal liability of directors or officers for monetary damages
for actions taken as a director or officer of us, or for serving at our request as a director or officer or another position at
another corporation or enterprise, as the case may be. Our certificate of incorporation and by-laws will also provide that we
must indemnify and advance reasonable expenses to our directors and officers, subject to our receipt of an undertaking from the
indemnified party as may be required under the DGCL. Our Certificate of Incorporation expressly authorizes us to carry directors’
and officers’ insurance to protect us, our directors, officers and certain employees for some liabilities. The limitation
of liability and indemnification provisions in our Certificate of Incorporation and by-laws may discourage stockholders from bringing
a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood
of derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit
us and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek
non-monetary relief such as injunction or rescission in the event of a breach of a director’s duty of care. The provisions
will not alter the liability of directors under the federal securities laws. In addition, your investment may be adversely affected
to the extent that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers
pursuant to these indemnification provisions. There is currently no pending material litigation or proceeding against any of our
directors, officers or employees for which indemnification is sought.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock and preferred stock will be available for future issuance without your 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 common stock and preferred stock
could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger
or otherwise.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Philadelphia Stock Transfer, Inc.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We
may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms
we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the date of
this prospectus, we have no outstanding registered debt securities. Unless the context requires otherwise, whenever we refer to
the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that
we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to
the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures
that contains the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth
or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be
issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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the
principal amount being offered, and if a series, the total amount authorized and the
total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms
and who the depositary will be;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities
held by a person who is not a United States person for tax purposes, and whether we can
redeem the debt securities if we have to pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and
the regular record dates for interest payment dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured
debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral
period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional redemption provisions
and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any,
on which, and the price at which we are obligated, pursuant thereto or otherwise, to
redeem, or at the holder’s option, to purchase, the series of debt securities and
the currency or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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pay
dividends or make distributions in respect of our capital stock or the capital stock
of our subsidiaries;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions
or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger.
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based or other financial ratios;
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a
discussion of certain material or special United States federal income tax considerations
applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be
offered at an “original issue discount” as defined in paragraph (a) of
Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the
debt securities, including any additional events of default or covenants provided with
respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into
or exchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities
of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and
the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable
at maturity, upon redemption or repurchase or otherwise, and the time for payment has
not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or
the indentures, other than a covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we receive notice from the trustee
or we and the trustee receive notice from the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due
to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any,
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or
other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders
not involved in the proceeding.
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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 involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with
respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made a written request and such holders have offered reasonable indemnity
to the trustee or security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known
by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain
other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the Board
of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “Description of Debt Securities
— Consolidation, Merger or Sale;”
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to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and delivery of debt securities, as
set forth in the indenture;
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to
provide for the issuance of, and establish the form and terms and conditions of, the
debt securities of any series as provided under “Description of Debt Securities
— General,” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to
the rights of the holders of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such
purpose;
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the
holders, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of
default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities
of any series in any material respect.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption or repurchase of any debt securities;
or
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reducing
the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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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. See “Legal Ownership of Securities” below for a further description of the terms relating
to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending
at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series.
Warrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any
warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described
in this prospectus at the time of its effectiveness.
We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. If selected,
the warrant agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders
or beneficial owners of the warrants. If applicable, we will file as exhibits to the registration statement of which this prospectus
is a part, or will incorporate by reference from a Current Report on Form 8-K that we file with the SEC, the form of warrant
agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering
before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the
warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement
and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus supplement
and any applicable free writing prospectus related to the particular series of warrants that we sell under this prospectus, as
well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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the
currency for which the warrants may be purchased;
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if
applicable, the designation and terms of the securities with which the warrants are issued
and the number of warrants issued with each such security or each principal amount of
such security;
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if
applicable, the date on and after which the warrants and the related securities will
be separately transferable;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock or preferred stock, the number of shares
of common stock or preferred stock, as the case may be, purchasable upon the exercise
of one warrant and the price at which these shares may be purchased upon such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the
warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities
issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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United
States federal income tax consequences of holding or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise
or to enforce covenants in the applicable indenture; or
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in
the case of warrants to purchase common stock or preferred stock, the right to receive
dividends, if any, or, payments upon our liquidation, dissolution or winding up or to
exercise voting rights, if any.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to us or the warrant agent as applicable.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
If
selected, each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for
more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make
any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus.
While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a Current Report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any
time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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the
designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or
of the securities comprising the units.
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The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary. See “Legal Ownership of Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect
holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even
if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders
but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event,
we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal
holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you
can be a legal holder, if that is permitted in the future;
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how
it would exercise rights under the securities if there were a default or other event
triggering the need for holders to act to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “— Special Situations
When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder
of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the
investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do
not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot
obtain non-global certificates for his or her interest in the securities, except in the
special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for
payments on the securities and protection of his or her legal rights relating to the
securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances
where certificates representing the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investor’s interest in the
global security. We and any applicable trustee have no responsibility for any aspect
of the depositary’s actions or for its records of ownership interests in the global
security. We and the trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and
sell interests in the global security within its book-entry system use immediately available
funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through
which an investor holds its interest in the global security, may also have their own
policies affecting payments, notices and other matters relating to the securities. There
may be more than one financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of those intermediaries
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Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act
as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global
security and has not been cured or waived.
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The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we, nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
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through
agents to the public or to investors;
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to
underwriters for resale to the public or to investors;
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negotiated
transactions;
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directly
to investors; or
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through
a combination of any of these methods of sale.
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As
set forth in more detail below, the securities may be distributed from time to time in one or more transactions:
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at
a fixed price or prices, which may be changed;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices; or
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We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
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the
name or names of any agents or underwriters;
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the
purchase price of the securities being offered and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or re-allowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name
of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation
of the underwriters and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated.
If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations
of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated
to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms
of any over-allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices
to be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be
specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the
offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless
the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers
of the common stock for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any institutional investors or others that purchase common stock directly
and then resell the securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and
any profit on the resale of the common stock by them may be deemed to be underwriting discounts and commissions under the Securities
Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities
not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus
supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant
to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In those
circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to
underwriters or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at
any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described
above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any other class
or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the securities.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Overallotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities
in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to
cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of these activities at any time.
Any
underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in
the securities on The Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to
the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered
below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase
limits are exceeded.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Sheppard, Mullin, Richter & Hampton
LLP, New York, New York. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel
that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of the Company as of December 31, 2020 and 2019 and for each of the two years in the period ended
December 31, 2020 incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated in
reliance on the report of BDO USA, LLP, an independent registered public accounting firm incorporated herein by reference, given
on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted
by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not
contain all the information that is included in the registration statement. You will find additional information about us
in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents
are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise
filed with the SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available
to the public at no cost from the SEC’s website at http://www.sec.gov. In addition, we make available on or through
our Internet site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the
SEC. Our Internet site can be found at http://www.hepionpharmar.com. The information on our website is not a part of, and
should not be considered as being incorporated by reference into, this prospectus supplement or the accompanying prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This
prospectus is part of the registration statement, but the registration statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information
contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information
to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
Information that we file later with the Securities and Exchange Commission will automatically update and supersede the information
that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference
in this prospectus:
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1.
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The
Company’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 31, 2021;
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2.
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The Company’s
Annual Report on Form 10-K/A for the year ended December 31, 2020 filed with the SEC on April 28, 2021;
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3.
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The Company’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 filed with the SEC on May 14, 2021;
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4.
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The Company’s
Quarterly Report on Form 10-Q for the quarter ended May 31, 2021 filed with the SEC on August 16, 2021;
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5.
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The Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30, 2021 filed with the SEC on November 15, 2021;
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6.
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The Company’s
Current Reports on Form 8-K filed with the SEC on January
5, 2021, February
10, 2021, February
17, 2021, March
11, 2021, March
23, 2021, April 29, 2021, May 6, 2021, June 9, 2021, June 25, 2021, July
13, 2021, July 26, 2021, August 23, 2021, September 29, 2021, October 7, 2021, October 8, 2021, November 10, 2021, and November 16,
2021; and
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7
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The
description of the Company’s common stock contained in the registration statement on Form 8-A filed with the Commission
on February 24, 2015 pursuant to Section 12 of the Exchange Act of 1934, as amended (the “Exchange Act”), including
any amendment or report filed for the purpose of updating that description.
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We
also incorporate by reference all documents (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items) that are subsequently filed by us with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of
the securities made by this prospectus (including documents filed after the date of the initial Registration Statement of which
this prospectus is a part and prior to the effectiveness of the Registration Statement). These documents include periodic reports,
such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as
proxy statements.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed to be modified or superseded to the extent that a statement contained in this prospectus or any subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement
You
may request, and we will provide you with, a copy of these filings, at no cost, by calling us at (732) 902-4000 or by writing
to us at the following address:
Hepion
Pharmaceuticals, Inc.
399
Thornall Street, First Floor
Edison,
New Jersey, 08837
Attn.:
Secretary
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the Registrant. All
of such fees and expenses, except for the SEC registration fee and the FINRA filing fee, are estimated:
|
SEC registration fee
|
|
$
|
38,185
|
|
|
Legal
fees and expenses
|
|
*
|
|
|
Printing
fees and expenses
|
|
*
|
|
|
Accounting
fees and expenses
|
|
*
|
|
|
Miscellaneous
fees and expenses
|
|
*
|
|
|
|
|
|
|
|
Total
|
|
$
|
*
|
|
*These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
Item
15. Indemnification of Officers and Directors.
Section 145
(“Section 145”) of the DGCL, permits indemnification of directors, officers, agents and controlling persons of
a corporation under certain conditions and subject to certain limitations. Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer or
agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In
the case of an action by or in the right of the corporation, no indemnification may be made with respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145
further provides that to the extent a present or former director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith. The foregoing is only a summary of the described sections of the Delaware General Corporation Law and is qualified
in its entirety by reference to such sections.
Our
Certificate of Incorporation and amended and restated bylaws provide that it shall indemnify each of its officers and directors
to the fullest extent permitted by Section 145.
Our
Certificate of Incorporation provides that no current or former director shall be personally liable to it or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or may hereafter be amended.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
Item
16. Exhibits.
a)
Exhibits.
|
Exhibit Number
|
|
Description of Document
|
|
1.1*
|
|
Form of
Underwriting Agreement
|
|
|
|
|
|
3.1
|
|
Certificate
of Incorporation of ContraVir Pharmaceuticals, Inc. (filed as Exhibit 3.1 to the Company’s registration statement
on Form 10-12G which was filed with the Securities and Exchange Commission on August 8, 2013 and incorporated herein by
reference).
|
|
|
|
|
|
3.2
|
|
Certificate
of Amendment of Certificate of Incorporation of Company dated May 25, 2018 (filed as Exhibit 3.1 to the Company’s Current Report
on Form 8-K filed with the Securities and Exchange Commission on May 29, 2018 and incorporated herein by reference);
|
|
|
|
|
|
3.3
|
|
Certificate
of Amendment to the Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on dated May 28, 2019
(incorporated by reference filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on May 31, 2019 and incorporated herein by reference)
|
|
|
|
|
|
3.4
|
|
Certificate
of Amendment to the Certificate of Incorporation, dated July 18, 2019 (filed as Exhibit 3.1 to the Company’s Current Report
on Form 8-K filed with the Securities and Exchange Commission on July 23, 2019 and incorporated herein by reference).
|
|
|
|
|
|
3.5
|
|
Certificate
of Designation, Preferences and Rights of the Series A Convertible Preferred Stock of ContraVir Pharmaceuticals, Inc. filed
with the Secretary of State of the State of Delaware on October 14, 2014 (filed as Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on October 14, 2014 and incorporated herein by reference).
|
|
|
|
|
|
3.6
|
|
Certificate
of Designation, Preferences and Rights of the Series C Convertible Preferred Stock of ContraVir Pharmaceuticals, Inc. filed
with the Secretary of State of the State of Delaware on July 2, 2018 (filed as Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on July 5, 2018 and incorporated herein by reference).
|
|
|
|
|
|
3.7
|
|
By-Laws
of ContraVir Pharmaceuticals, Inc. (filed as Exhibit 3.2 to the Company’s registration statement on Form 10-12G
which was filed with the Securities and Exchange Commission on August 8, 2013 and incorporated herein by reference).
|
|
|
|
|
|
4.1+
|
|
Form of
Senior Indenture
|
|
|
|
|
|
4.2+
|
|
Form of
Subordinated Indenture
|
|
|
|
|
|
4.3*
|
|
Form of
Senior Note
|
|
|
|
|
|
4.4*
|
|
Form of
Subordinated Note
|
|
|
|
|
|
4.5*
|
|
Form of
Warrant
|
|
*
|
To the extent
applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as
amended, and incorporated by reference herein.
|
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however ,
that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part
of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided , however ,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
(c) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(d) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Township of Edison, State of New Jersey, on November 19, 2021.
|
|
HEPION
PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
By:
|
/s/
Robert Foster
|
|
|
|
Robert
Foster
|
|
|
|
President,
Chief Executive Officer and Director
|
Pursuant
to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed
this Registration Statement below.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Robert
Foster
|
|
President, Chief Executive Officer and Director
|
|
November 19, 2021
|
|
Robert Foster
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
*
|
|
Chief Financial Officer
|
|
November 19, 2021
|
|
John Cavan
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
*
|
|
Director and Chairman of the Board
|
|
November 19, 2021
|
|
Gary S. Jacob
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
November 22, 2021
|
|
Timothy Block
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
November 19, 2021
|
|
Thomas H. Adams
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
November 19, 2021
|
|
John Brancaccio
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
November 19, 2021
|
|
Arnold Lippa
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
November 19, 2021
|
|
Petrus Wijngaard
|
|
|
|
|
|
*By:
|
/s/ Robert Foster
|
|
|
|
Robert Foster
|
|
|
|
Attoney-in-Fact
|
|
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