“Alimera Sciences” and “ILUVIEN” are trademarks of Alimera Sciences, Inc. This prospectus may also include other registered and unregistered trademarks of Alimera Sciences, Inc. and other persons.
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RISKSK FACTORS
InvestingAn investment in our securities involves risk. Yourisks. Prior to making a decision about investing in our Common Stock, you should consider carefully consider the specific risks discussedtogether with all of the other information contained or incorporated by reference into this prospectus and the applicable prospectus supplement, together with all the other information contained in this prospectus, andincluding any risks described in the applicable prospectus supplement or incorporated by reference intosection entitled “Risk Factors” contained in any supplements to this prospectus, and the applicable prospectus supplement, including the risks, uncertainties and assumptions discussed under the caption “Risk Factors” in documents we file from time to time with the SEC, specifically our most recent Annual Report on Form 10-K for the year ended December 31, 2022, and in our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and in subsequent filings. These risk factors may be amended, supplemented or superseded from time to time by other reports we filefilings with the SEC inSEC. Each of the future or by a prospectus supplement relating to a particular offering of our securities. Thesereferenced risks and uncertainties are notcould adversely affect our business, prospects, operating results and financial condition, as well as adversely affect the only risks and uncertainties we face.value of an investment in our securities. Additional risks and uncertainties not presently known to us or that we currently view asbelieve are immaterial may also impairadversely affect our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any additional risksbusiness, operating results and uncertainties actually occur, our business, financial condition and resultsthe value of operations could be materially and adversely affected. In that case,an investment in our securities.
Our common stockholders will experience significant dilution upon the trading priceissuance of Common Stock upon conversion of the Series B Preferred or exercise of the Warrants to purchase Common Stock.
The issuance of Common Stock upon conversion of the Series B Preferred will significantly dilute the ownership interests of existing holders of shares of our securities could decline and you might lose all or partCommon Stock. As of your investment.
DESCRIPTION OF SECURITIES
PREFERRED STOCK
General
We currently have authorized 10,000,000June 16, 2023 we had 8,805,727 shares of preferred stock, par value $0.01,Common Stock outstanding. As of June 16, 2023, if all of the rightsoutstanding Series B Preferred were converted to Common Stock and preferencesall of which may be established from timethe outstanding Warrants to time by our board of directors.
Under Delaware law and our restated certificate of incorporation, our board of directors is authorized, without stockholder approval,purchase Common Stock were exercised in full (without giving effect to issueany limitation on conversions or exercise), we would have 55,573,836 shares of preferred stock from time to time in one or more series. Subject to limitations prescribed by Delaware law and our restated certificate of incorporation and by-laws, the board of directors can determine theCommon Stock outstanding. The number of shares constituting each series of preferred stock and the designation, preferences, voting powers, qualifications, and special or relative rights or privileges of that series. These may include provisions concerning voting, redemption, dividends, dissolution or the distribution of assets,Common Stock issuable upon conversion or exchange, and other subjects or matters as may be fixed by resolution of the board or an authorized committeeSeries B Preferred will increase as dividends continue to accrue on such shares at a rate of the board.6% per annum, accrued daily. The preferred stock offered by this prospectus will, when issued, be fully paid and nonassessable.
Our board of directors could authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of discouraging a takeover or other transaction which holders of some, or a majority, of our common stock might believe to be in their best interests or in which holders of some, or a majority, of our common stock might receive a premium for their shares over the then market price of those shares.
If we offer a specific series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the extent required, this description will include:
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| • | | the title and stated value; |
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| • | | the number of shares offered, the liquidation preference per share, and the purchase price; |
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| • | | the dividend rate(s), period(s), and/or payment date(s), or method(s) of calculation for such dividends; |
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| • | | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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| • | | the procedures for any auction and remarketing, if any; |
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| • | | the provisions for a sinking fund, if any; |
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| • | | any listing of the preferred stock on any securities exchange or market; |
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| • | | whether the preferred stock will be convertible into Alimera common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period; |
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| • | | whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period; |
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| • | | voting rights, if any, of the preferred stock; |
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| • | | a discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock; |
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| • | | the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution, or winding up of the affairs of Alimera; and |
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| • | | any material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution, or winding up of Alimera. |
The transfer agent and registrar for any series or class of preferred stock will be set forth in the applicable prospectus supplement.
Series A Convertible Preferred Stock
On October 2, 2012, we filed a certificate of designation which designated 1,300,000 shares of our preferred stock as “Series A Convertible Preferred Stock.” As of June 30, 2017, there were 600,000 shares of Series A Convertible Preferred Stock and warrants to purchase 300,000 shares of Series A Convertible Preferred Stock outstanding. The warrants to purchase 300,000 shares of Series A Convertible Preferred Stock expired on October 2, 2017.
Conversion. Each share of Series A Convertible Preferred Stock, including any shares of Series A Convertible Preferred Stock issued upon exercise of the warrants, is convertible into shares of Alimera’s common stock at any time at the option of the holder at the rate (conversion rate) equal to $40.00 (original purchase price) divided by a conversion price of $2.66 (conversion price).
Each sharethe Series B Preferred and the exercise price of
the Warrants to purchase Common Stock aresubject to certain customary adjustments, including a weighted average anti-dilution adjustment (which will remain in effect until the Series A ConvertibleB Preferred Stock shallconverts). If Stockholder Approval is obtained, the Series B Preferred will automatically be converted into shares of commonCommon Stock and the exercise price of the Warrants will no longer be subject to a weighted average anti-dilution adjustment.Significant sales of our Common Stock could depress or reduce the market price of our Common Stock, cause our shares of Common Stock to trade below the prices at which they would otherwise trade, or impede our ability to raise future capital.
A small number of institutional investors and private equity funds hold a significant number of shares of our Common Stock and all of our shares of Series B Preferred and Warrants. Sales by these stockholders of a substantial amount of Common Stock, or the expectation of such sales, could cause a significant reduction in the market price of our Common Stock. The Conversion Shares, Warrant Shares, Private Placement Shares and Ocumension Shares are not subject to lock-ups or similar limitations on resale, and we will have no control over the timing or volume of any sales by the Selling Stockholders.
In addition, we may sell securities in the future, if we determine it is appropriate or necessary to do so, which could cause a significant reduction in the market price of our Common Stock. If significant sales of our Common Stock occur in short periods, this could depress or reduce the market price of our Common Stock. Any reduction in the trading price of our Common Stock could impede our ability to raise capital on attractive terms.
Failure to integrate YUTIQ® or any business, product or technology we may acquire in the future, will cause our business, financial condition and operating results to suffer.
Integrating any business, product or technology, including YUTIQ, we acquire is expensive and time-consuming and can disrupt and adversely affect our ongoing business, including product sales, and distract our management. Our ability to successfully integrate any business, product or technology we acquire depends on a number of factors, including, but not limited to, our ability to:
| · | | minimize the disruption and distraction of our management and other employees in connection with the integration of any acquired business, product or technology; |
| · | | maintain and increase sales of our existing products; |
| · | | establish or manage the transition of the manufacture and supply of any acquired product, including the necessary active pharmaceutical ingredients, excipients and components; |
| · | | identify and add the necessary sales, marketing, manufacturing, regulatory and other related personnel, capabilities and infrastructure that are required to successfully integrate any acquired business, product or technology; |
| · | | manage the transition and migration of all commercial, financial, legal, clinical, regulatory and other pertinent information relating to any acquired business, product or technology; |
| · | | comply with legal, regulatory and contractual requirements applicable to any acquired business, product or technology; |
| · | | obtain and maintain adequate coverage, reimbursement and pricing from managed care, government and other third-party payors with respect to any acquired product; and |
| · | | maintain and extend intellectual property protection for any acquired product or technology. |
If we are unable to perform the above functions or otherwise effectively integrate YUTIQ® or any businesses, products or technologies we may acquire in the future, our business, financial condition and operating results will suffer.
In addition, we may not to achieve the expected financial performance or synergies from businesses, products or technologies we acquire, including YUTIQ® or may experience unexpected delays, challenges and expenses, and unexpected costs associated with integrating and operating the acquired business, product or technology.
DESCRIPTION OF COMMON STOCK
The description of our Common Stock is incorporated by reference to Exhibit 4.1 of our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 31, 2023.
DESCRIPTION OF SERIES B CONVERTIBLE PREFERRED STOCK
Our Board of Directors (the “Board”) is authorized to issue up to 10,000,000 shares of preferred stock at the conversion price upon the date on which we consummate an equity financing transaction pursuant to which we sell toin one or more third party investors either (a)series, to establish the number of shares to be included in each such series and to fix the designation, powers, preferences and rights of such shares and any qualifications, limitations or restrictions thereof.
The powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series B Preferred are set forth in the Certificate of Designation. The Certificate of Designation authorizes 78,617 shares of common stockSeries B Preferred. We intend to solicit Stockholder Approval at the Annual Meeting to approve the issuance of Common Stock upon conversion of the Series B Preferred and exercise of the Warrants in excess of 19.99% of the voting power or (b)number of shares of Common Stock, issued and outstanding immediately prior to the execution of the Purchase Agreement. The principal terms of the Series B Preferred are set forth below:
Conversion; Stockholder Approval. Unless and until Stockholder Approval is obtained, the Series B Preferred is not convertible into Common Stock or any other equity securities that are convertiblesecurity of Alimera because when aggregated with the Private Placement Shares the issuance of any shares of Common Stock upon conversion thereof would be in excess of 19.99% of the voting power or number of shares of Common Stock, issued and outstanding immediately prior to the execution of the Purchase Agreement.
If Stockholder Approval is obtained, we will designate a business day no later than ten business days following such vote as the date for the conversion (the “Mandatory Conversion”) of all, but not less than all, of the outstanding Series B Preferred into shares of common stock and that have rights, preference or privileges, seniorCommon Stock, upon which such Mandatory Conversion will occur automatically. The number of shares of Common Stock to or on a parity with,be issued upon the Series A Convertible Preferred Stock, in each case having an as-converted per share of common stock price of not less than $10.00 (adjusted for stock splits, combinations, stock dividends, recapitalizations and the like with respect to the Series A Convertible Preferred Stock) and that results in total gross proceeds to us of at least $30,000,000. The Series A Convertible Preferred Stock is not convertible at our option.
All conversion prices and adjustments to the conversion price of the Series A Convertible Preferred StockMandatory Conversion shall be appropriately adjusted in the event of stock splits, combinations, stock dividends, recapitalizations and the like with respect to the Series A Convertible Preferred Stock.
Liquidation Preference. In the event of a Liquidation Transaction, as defined below, holders of the Series A Convertible Preferred Stock will receive, before any proceeds are distributed to the holders of common stock or any other stock or equity security, a payment equal to the
greater ofdetermined by dividing (i) the
original purchase priceStated Value (as adjusted for stock dividends, splits, combinations and similar events with respect to the Series
A Convertible Preferred Stock), B Preferred) (the “Adjusted Stated Value”) plus any declared andaccrued but unpaid dividends perto which such share of Series A ConvertibleB Preferred is then entitled (the “Accrued Dividends”) by (ii) the then-applicable conversion price. No fractional shares shall be issued upon the conversion of the Series B Preferred.
Conversion Price. The initial conversion price of the shares of Series B Preferred issued at the Tranche 1 Closing is $2.10 (the “Tranche 1 Conversion Price”). The initial conversion price of the shares of Series B Preferred issued at the Tranche 2 Closing is $1.70 (the “Tranche 2 Conversion Price”). In each case, the conversion price of the Series B Preferred is subject to certain customary adjustments, including a weighted average anti-dilution adjustment.
Liquidation Preference. In the event of a Liquidation Transaction (as defined in the Certificate of Designation), holders of the Series B Preferred will receive before any proceeds are distributed to the holders of Common Stocka per-share of Series B Preferred payment equal to the greater of (i) the Adjusted Stated Value, plus the Accrued Dividends, and (ii) the amount each holder of a share of Series A ConvertibleB Preferred Stock would be entitled to receive had all shares of Series A ConvertibleB Preferred Stock been converted into shares of common stockCommon Stock at the then-effectivethen-applicable conversion rateprice immediately prior to such Liquidation Transaction. Unless waived by the holders of at least 70% of the then outstanding shares of Series A Convertible Preferred Stock, voting together as a separate class, the following shall be deemedTransaction (without regard to constitute a Liquidation Transaction: (a) our acquisition by means of merger, consolidation, stock sale, tender offer, exchange offer or other form of corporate reorganization in which our outstanding shares are exchanged or sold, in one transaction or a series of related transactions, for cash, securities, property or other consideration issued, or caused to be issued, by the acquiring entity or its subsidiary, or any other person or group of affiliated persons and in which the holders of our capital stock hold less than a majority of the voting power of the surviving entity and (b) any sale, transfer, exclusive license or lease of all or substantially all of the properties or assets or us or our subsidiaries (each of such transactions in clause (a) and (b), together with our actual liquidation, dissolution or winding up, a Liquidation Transaction), provided that none of the following shall be deemed to constitute a Liquidation Transaction: (x) a transaction for which the sole purpose is to change the state of our incorporation, (y) a transaction for which the sole purpose is to create a holding company that will hold no assets other than our shares and that will have securities with rights, preferences, privileges and restrictions substantially similar to ours and that are owned in substantially the same proportions by the persons who held such of our securities, in each case immediately prior to such transaction or (z) our entry into a license transaction for the purpose of developing and/or commercializing one or more of our products, so long as such license transaction would not be reasonably considered to be a sale or license of all or substantially all of our assets.
conversion limitations).Voting RightsRights. . Except as otherwise set forth in the certificateCertificate of designation,Designation, prior to and following the Annual Meeting, the Series A ConvertibleB Preferred Stock will not vote together with the common stock Common Stock on an as converted basis based on a deemed conversion priceany matters because when aggregated with the Private Placement Shares the exercise of $2.95 (adjusted for stock splits, combinations, stock dividends, recapitalizationsany such voting rights would be in excess of 19.99% of the voting power or number of shares of Common Stock, issued and the like with respectoutstanding immediately prior to the Series A Convertible Preferred Stock).execution of the Purchase Agreement.
In addition,However, for so long as at least 37.5%20% of the shares of Series A ConvertibleB Preferred Stock issued to the selling stockholders at the closing of our Series A Convertible Preferred Stock financing are held by the initial selling stockholders or their affiliates,Investors remain outstanding, we may not, without first obtaining approval of the holders of at least 70%a majority of the then outstanding shares of capital stock issued pursuant to the Purchase Agreement: (i) (A) amend the Certificate of Designation, or (B) amend Alimera’s certificate of incorporation (including by filing any new certificate of designation or elimination) or bylaws, in each case with respect to the foregoing clause (B), in a manner that adversely affects the rights, preference or privileges of the Series A Convertible Preferred Stock, voting together as a separate class: (i)B Preferred; (ii) increase or decrease the authorized number of shares of Series A ConvertibleB Preferred Stock; (ii)or issue additional shares of Series B Preferred following the Tranche 1 Closing, other than to the Original Investors; (iii) authorize, create, issue or obligate ourselvesAlimera to issue (by reclassification, merger or otherwise) any security (or any class or series thereof) or any indebtedness, in each case that has any rights, preferences or privileges senior to, or on a parity with, the Series A ConvertibleB Preferred, Stock, or any security convertible into or exercisable for any such security or indebtedness (other than the issuance of (a) up to an aggregate of $35,000,000$67,500,000 of indebtedness pursuant to our Credit Facility,Alimera’s credit facility with SLR Investment Corp., as the same may be amended, refinanced or resyndicated from time to time or (b) up to an aggregate of $500,000 of indebtedness pursuant to operating, capital or equipment leases entered into in the ordinary course of business (such indebtedness being the Permitted Indebtedness))business); (iii) amend our certificate of incorporation (including by filing any new certificate of designation or elimination) or the certificate of designation, in each case in a manner that adversely affects the rights, preference or privileges of the Series A Convertible Preferred Stock; (iv) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any shares of common stock or preferred stock; provided, however, that this restriction shall not apply to (a) the redemption of rights issued pursuant to any “poison pill” rights plan or similar plan we adopt after the closing of our Series A Convertible Preferred Stock financing or (b) the repurchases of stock from former employees, officers, directors or consultants who performed services for us in connection with the cessation of such employment or service pursuant to the terms of existing agreements with such individuals; (v) declare or pay any dividend or distribution on any shares of capital stock; provided, however, that this restriction shall not apply to (a) dividends payable to holders of common stock that consist solely of shares of common stock for which adjustment to the conversion price of the Series A Convertible Preferred Stock is made pursuant to the certificate of designation or (b) dividends or distributions issued pro rata to all holders of capital stock (on an as-converted basis) in connection with our the implementation of a “poison pill” rights plan or similar plan; (vi) authorize or approve any increase to the number of aggregate shares of capital stock reserved for issuance pursuant to our stock option, stock purchase plans or other equity incentive plans such that the total aggregate number of shares issued under such plans and reserved for issuance under such plans (on an as-converted basis) exceeds the number of shares issued and reserved for issuance under such plans (on an as-converted basis) on the date of the closing of the Series A Convertible Preferred Stock financing by more than 20% (adjusted for stock splits, combinations, stock dividends, recapitalizations and the like), provided that any increases resulting solely from the annual increases resulting from the “evergreen” provisions of our equity incentive plans in effect on the date of the closing of the offering shall not be subject to this restriction and shall not be included for purposescertain limited exceptions set forth in the Certificate of determining whether such 20% increase has occurred; (vii) issue stock or other equity securities of any of our subsidiaries (other than to us or another wholly-owned subsidiary) orDesignation; (v) declare or pay any dividend or other distribution of cash, shares or other assets or redemption or repurchase ofon any shares of capital stock; (vi) incur any subsidiary;indebtedness in excess of $5,000,000 or (viii) incur any secured indebtedness other than any Permitted Indebtedness.
In connection withas permitted by the
Certificate of Designation; or (vii) consummate a Liquidation Transaction.Series A Convertible Preferred Stock financing, our board of directors approved an amendment to our bylaws, effectiveB Directors. Effective as of Octoberthe Tranche 1 Closing, Caligan Partners LP and its affiliates (collectively, “Caligan”) and (ii) Velan Capital Investment Management LP and its affiliates (collectively, “Velan”) each received the right to designate one director for election to the Board and they collectively received the right to one Board observer seat. Velan received the right to designate one additional director for election to the Board upon the Tranche 2 2012,Closing. Caligan received the right to provide thathave an additional Board observer seat upon the holdersTranche 2 Closing and the right to designate one additional director for election to the Board upon Stockholder Approval. The rights to the two observer seats will terminate upon Stockholder Approval. For so long as Velan beneficially holds 50% or more of Series A Convertible Preferredthe shares of Common Stock may take any exclusive action required or permitted to be taken by the stockholders holding Series A Convertible Preferred Stocksuch investor and its affiliates acquired pursuant to the certificatePurchase Agreement (calculated on an as-converted basis based on the applicable conversion price), such investor and its affiliates shall have the right to designate two directors for election to the Board. For so long as Caligan beneficially holds 50% or more of designationthe shares of Common Stock such investor and its affiliates acquired pursuant to the Purchase Agreement (calculated on an as-converted basis based on the applicable conversion price), such investor
and its affiliates shall have the right to designate one director for election to the Board or, following Stockholder Approval, two directors for election to the Board. Notwithstanding the foregoing, if any such investor’s ownership position in Alimera is materially reduced, whether through sales by written consent atsuch investor or additional issuances by Alimera, such right shall be concomitantly reduced in any time.
year if required by applicable Nasdaq listing rules.DividendsDividends.. The Series A Convertible Preferred Stock does not accrue dividends. The holders of Series A ConvertibleB Preferred Stock will beare entitled to receive dividends and other distributions on a pari passu basis with the holders of common stock Common Stock on an as-converted basis. In addition, prior to Mandatory Conversion, dividends will accrue on the Series B Preferred at an annual rate of 6% of the Stated Value. Such dividends with respect to any share of Series B Preferred shall accrue daily from and after the issuance date, whether or not Alimera has funds legally available for such dividends or such dividends are declared and shall be calculated on the basis of a 360-day year. Dividends will be payable in cash when, as and if, declared by the Board.
RedemptionRedemption. . The Series A ConvertibleB Preferred Stock is not redeemable.
The certificate of designation was filed as Exhibit 3.5 to our current report on Form 8-K dated July 18, 2012. The foregoing description of the certificate of designation and the Series A ConvertibleB Preferred Stock does not purport to be complete and is qualified in its entirety by reference to such exhibit.
Series B Convertible Preferred Stock
On December 12, 2014, we filed a certificatethe Certificate of designation which designated 8,417 sharesDesignation and the Certificate of our preferred stock as “Series B Convertible Preferred Stock.”
On December 12, 2014, we closed a preferred stock financing in which we sold 8,291.873 sharesAmendmentto Certificate of Designation of Series B Convertible Preferred Stock, for a purchase price of $6,030.00 per share, or an aggregate purchase price of $50,000,000, prior to the payment of approximately $432,000 of related issuance costs. We also agreed to issue the purchasers an additional 124.378 shares of Series B Convertible Preferred Stock as a subscription premium. The powers, preferences and rights of the Series B Convertible Preferred Stock are set forth in the certificate of designation filed with the Secretary of State of the State of Delaware. Each share of Series B Convertible Preferred Stock is convertible into 1,000 shares of our common stock at any time at the option of the holder, provided that the holder will be prohibited from converting Series B Convertible Preferred Stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 9.98% of the total number of shares of our common stock then issued and outstanding. The Series B Convertible Preferred Stock ranks junior to the Series A Convertible Preferred Stock, and senior to our common stock, with respect to rights upon liquidation. The Series B Convertible Preferred Stock ranks junior to all existing and future indebtedness. Except as otherwise required by law (or with respect to approval of certain actions), the Series B Convertible Preferred Stock does not have voting rights. The Series B Preferred Stock is not redeemable at the option of the holder. The Series B Convertible Preferred Stock is not subject to any price-based or other anti-dilution protections and does not provide for any accruing dividends.
In connection with the Series B Convertible Preferred Stock financing, our board of directors approved an amendment to our bylaws, effective as of December 12, 2014, to provide that the holders of Series B Convertible Preferred Stock may take any exclusive action required or permitted to be taken by the stockholders holding Series B Convertible Preferred Stock pursuant to the certificate of designation by written consent at any time.
The certificate of designation was filed as Exhibit 3.6 to our current report on Form 8-K dated December 15, 2014. The foregoing description of the certificate of designation and the Series B Convertible Preferred Stock does not purport to be complete and is qualified in its entirety by reference to such exhibit.
COMMON STOCK
We currently have authorized 150,000,000 shares of common stock, par value $0.01 per share. As of October 19, 2017, there were 69,105,380 shares of common stock outstanding held of record by 32 stockholders. Holders of our common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of our common stock are fully paid and nonassessable.
The following summary of the terms of our common stock is subject to and qualified in its entirety by reference to our restated certificate of incorporation and by-laws, copies of which are on file with the SEC as exhibits to previous SEC filings. Please refer to the section entitled “Where You Can Find More Information” for directions on obtaining these documents.
Voting Rights. The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders, including, without limitation, the election of our board of directors. Our stockholders have no right to cumulate their votes in the election of directors.
Dividends. Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of our common stock are entitled to receive ratably those dividends declared from time to time by the board of directors.
Rights Upon Liquidation. Subject to preferences that may apply to shares of preferred stock outstanding at the time, in the event of liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in assets remaining after payment of liabilities.
Anti-Takeover Effects of Our Restated Certificate of Incorporation, Bylaws and Delaware Law. Some provisions of Delaware law and our restated certificate of incorporation and bylaws could make the following transactions more difficult: our acquisition by means of a tender offer; our acquisition by means of a proxy contest or otherwise; or removal of our incumbent officers and directors.
Section 203 of the Delaware General Corporation Law is applicable to takeovers of Delaware corporations. Subject to exceptions enumerated in Section 203, Section 203 provides that a corporation shall not engage in any business combination with any “interested stockholder” for a three-year period following the date that the stockholder becomes an interested stockholder unless:
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| • | | prior to that date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
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| • | | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, though some shares may be excluded from the calculation; and |
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| • | | on or subsequent to that date, the business combination is approved by the board of directors of the corporation and by the affirmative votes of holders of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
Except as specified in Section 203, an interested stockholder is generally defined to include any person who, together with any affiliates or associates of that person, beneficially owns, directly or indirectly, 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation, any time within three years immediately prior to the relevant date. Under certain circumstances, Section 203 makes it more difficult for an interested stockholder to effect various business combinations with a corporation for a three-year period, although the stockholders may elect not to be governed by this section, by adopting an amendment to the certificate of incorporation or by-laws, effective 12 months after adoption. Our restated certificate of incorporation and by-laws do not opt out from the restrictions imposed under Section 203. We anticipate that the provisions of Section 203 may encourage companies interested in acquiring us to negotiate in advance with the board because the stockholder approval requirement would be avoided if a majority of the directors then in office excluding an interested stockholder approve either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder. These provisions may have the effect of deterring hostile takeovers or delaying changes in control, which could depress the market price of our common stock and deprive stockholders of opportunities to realize a premium on shares of common stock held by them.
In addition to our board of directors’ ability to issue shares of preferred stock, our restated certificate of incorporation and by-laws contain provisions that may discourage, delay or prevent a change in our management or control over us that stockholders may consider favorable. Our restated certificate of incorporation and bylaws:
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| • | | authorize the issuance of “blank check” preferred stock that could be issued by our board of directors to thwart a takeover attempt; |
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| • | | do not provide for cumulative voting in the election of directors, which would allow holders of less than a majority of the stock to elect some directors; |
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| • | | establish a classified board of directors, as a result of which the successors to the directors whose terms have expired will be elected to serve from the time of election and qualification until the third annual meeting following their election; |
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| • | | require that directors only be removed from office for cause; |
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| • | | provide that vacancies on the board of directors, including newly-created directorships, may be filled only by a majority vote of directors then in office; |
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| • | | limit who may call special meetings of stockholders; |
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| • | | prohibit stockholder action by written consent, requiring all actions to be taken at a meeting of the stockholders; and |
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| • | | establish advance notice requirements for nominating candidates for election to the board of directors or for proposing matters that can be acted upon by stockholders at stockholder meetings. |
Transfer Agent and Registrar. The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company.
Listing. Our common stock is listed on The NASDAQ Global Market under the symbol “ALIM.”
DEBT SECURITIES
We may issue, from time to time, debt securities in one or more series that will consist of either senior debt or subordinated debt under one or more trust indentures to be executed by us and a specified trustee. The terms of the debt securities will include those stated in the indenture and those made a part of the indenture (before any supplements) by reference to the Trust Indenture Act of 1939. The indentures will be qualified under the Trust Indenture Act. Debt securities, whether senior or subordinated, may be issued as convertible debt securities or exchangeable debt securities.
The following description sets forth certain anticipated general terms and provisions of the debt securities to which any prospectus supplement may relate. The particular terms of the debt securities offered by any prospectus supplement (which terms may be different than those stated
below) and the extent, if any, to which such general provisions may apply to the debt securities so offered will be described in the prospectus supplement relating to such debt securities. Accordingly, for a description of the terms of a particular issue of debt securities, investors should review both the prospectus supplement relating thereto and the following description. Forms of the senior indenture (as discussed herein) and the subordinated indenture (as discussed herein) are included as exhibits to the registration statement of which this prospectus is a part.
General
DESCRIPTION OF WARRANTS
The debt securities will be our direct obligations and may be either senior debt securities or subordinated debt securities. The indebtedness represented by subordinated securities will be subordinated in right of paymentWarrants have an exercise price equal to the Tranche 1 Conversion Price (initially $2.10 per share; as adjusted pursuant to the Certificate of Designation through the date of Stockholder Approval) and expire on March 24, 2030. The Warrants are not exercisable prior paymentto Stockholder Approval. Following Stockholder Approval, the Warrants are exercisable at any time upon or after the earlier of (i) immediately prior to a change of control of Alimera and (ii) March 24, 2024. In connection with the Tranche 2 Closing, the Warrants were reduced to be exercisable for an aggregate of 1,600,000 shares of Common Stock. The foregoing description of the Warrants does not purport to be complete and is qualified in fullits entirety by the actual terms of our senior debt (as definedthe Form of Warrant, a copy of which is included as an exhibit to the registration statement of which this prospectus is a part.
USE OF PROCEEDS
We will not receive any proceeds from the sale or other disposition of the Series B Conversion Shares, Warrant Shares, Private Placement Shares, or Ocumension Shares offered by this prospectus. However, in the applicable indenture). Senior securities and subordinated securities will be issuedcase of the Warrants, upon any exercise of the Warrants for cash, the exercising Selling Stockholder would pay us an exercise price of $2.10 per share, subject to any adjustment pursuant to separate indentures (respectively, a senior indenture and a subordinated indenture), in each case between us and a trustee.
Except asthe terms of the Warrants. In the event all of the Warrants are exercised for cash, we would receive approximately $3,360,000. Under certain conditions set forth in the
applicable indentureWarrants, the Warrants are exercisable on a cashless basis. If a Warrant is exercised on a cashless basis, we would not receive any cash payment from the exercising Selling Stockholder upon exercise of such Warrant. Instead, the exercising Selling Stockholder would satisfy its obligation to pay the exercise price through a formula-based transfer of Warrant Shares to us. There is no certainty that we will ever receive any proceeds from the exercise of the Warrants. We intend to use any proceeds from the exercise of Warrants for general corporate and
describedworking capital purposes.The Selling Stockholders will pay any underwriting discounts and commissions and expenses incurred by the Selling Stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the Selling Stockholders in selling the Common Stock covered by this prospectus. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares of Common Stock covered by this prospectus, including, without limitation, all registration and filing fees and expenses of our counsel and our accountants.
SELLING STOCKHOLDERS
Pursuant to the Registration Rights Agreement, we agreed to file the registration statement of which this prospectus is a prospectus supplement relating thereto,part, to cover the debt securities may be issued without limit asresale of up to aggregate principal amount, in one or more series, secured or unsecured, in each case as established48,619,015 shares of our Common Stock, consisting of (i) 45,617,114 shares of our Common Stock issuable from time to time upon conversion of shares of Series B Preferred, (ii) up to 1,600,000 shares of Common Stock upon exercise of Warrants and (iii) 1,401,901 shares of our Common Stock constituting the Private Placement Shares and to keep such registration statement effective with respect to each Selling Stockholder until the date on which all of the Common Stock registered for resale under the registration statement has been disposed of in oraccordance with such registration statement, disposed of pursuant to authority granted by a resolutionRule 144 under the Securities Act, or can be resold pursuant to Rule 144 without restriction or limitation (including without any limitation as to volume of our board of directors or as established in the applicable indenture. All debt securities of one series need not be issued at the timesales and unless otherwise provided, a series may be reopened, without the consentSelling Stockholder complying with any method of sale requirements or notice requirements under Rule 144). Additionally, pursuant to the Share Purchase Agreement, dated as of April 14, 2021, by and between the Company and Ocumension Therapeutics, we agreed to register the Ocumension Shares issued thereunder for resale.
We are registering the resale of the holdersabove-referenced shares of Common Stock to permit each of the debt securities of such series, for issuance of additional debt securities of such series. The applicable indenture may provide that we may issue debt securities in any currencySelling Stockholders identified below, or currency unit designated by us. Except for any limitations on consolidation, merger and sale of alltheir permitted transferees or substantially all of our assetsother successors-in-interest that may be containedidentified in the applicable indenture, the terms of such indenture will not contain any covenantsa supplement to this prospectus or, other provisions designed to afford holders of any debt securities protection with respect to our operations, financial condition or transactions involving us.
The prospectus supplement relating to any series of debt securities being offered will contain the specific terms thereof, including, without limitation:
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| • | | the title of such debt securities and whether such debt securities are senior securities or subordinated securities and the terms of any such subordination; |
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| • | | the aggregate principal amount of such debt securities and any limit on such aggregate principal amount; |
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| • | | the percentage of the principal amount at which such debt securities will be issued and, if other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or (if applicable) the portion of the principal amount of such debt securities which is convertible into common stock or preferred stock, or the method by which any such portion shall be determined; |
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| • | | the date or dates, or the method for determining the date or dates, on which the principal of such debt securities will be payable; |
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| • | | the rate or rates (which may be fixed or variable), or the method by which the rate or rates shall be determined, at which such debt securities will bear interest, if any; |
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| • | | the date or dates, or the method for determining such date or dates, from which any interest will accrue, the interest payment dates on which any such interest will be payable, the regular record dates for such interest payment dates, or the method by which any such date shall be determined, the person to whom such interest shall be payable, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months; |
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| • | | the right, if any, to extend the interest payment periods and the duration of the extensions; |
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| • | | the place or places where the principal of (and premium, if any) and interest, if any, on such debt securities will be payable, such debt securities may be surrendered for conversion or registration of transfer or exchange and notices or demands to or upon us in respect of such debt securities and the applicable indenture may be served; |
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| • | | the period or periods within which, the price or prices at which and the terms and conditions upon which such debt securities may be redeemed, as a whole or in part, at our option, if we have such an option; |
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| • | | our obligation, if any, to redeem, repay or purchase such debt securities pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which such debt securities will be redeemed, repaid or purchased, as a whole or in part, pursuant to such obligation; |
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| • | | if other than U.S. dollars, the currency or currencies in which such debt securities are denominated and payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto; |
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| • | | whether the amount of payments of principal of (and premium, if any) or interest, if any, on such debt securities may be determined with reference to an index, formula or other method (which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currencies) and the manner in which such amounts shall be determined: |
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| • | | any additions to, modifications of or deletions from the terms of such debt securities with respect to the events of default or covenants set forth in the indenture; |
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| • | | any provisions for collateral security for repayment of such debt securities; |
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| • | | whether such debt securities will be issued in certificated and/or book-entry form; |
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| • | | whether such debt securities will be in registered or bearer form and, if in registered form, the denominations thereof if other than $1,000 and any integral multiple thereof and, if in bearer form, the denominations thereof and terms and conditions relating thereto; |
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| • | | whether issued in the form of one or more global securities and whether all or a portion of the principal amount of the debt securities is represented thereby; |
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| • | | if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration of maturity, and the terms and conditions of any acceleration; |
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| • | | if applicable, covenants affording holders of debt protection with respect to our operations, financial condition or transactions involving us; |
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| • | | the applicability, if any, of defeasance and covenant defeasance provisions of the applicable indenture; |
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| • | | the terms, if any, upon which such debt securities may be convertible into our common stock or preferred stock and the terms and conditions upon which such conversion will be effected, including, without limitation, the initial conversion price or rate and the conversion period; |
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| • | | if applicable, any limitations on the ownership or transferability of the common stock or preferred stock into which such debt securities are convertible; |
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| • | | whether and under what circumstances we will pay additional amounts as contemplated in the indenture on such debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities in lieu of making such payment; and |
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| • | | any other material terms of such debt securities. |
The debt securities may provide for less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity thereof. Special federal income tax, accounting and other considerations applicable to these original issue discount securities will be described in the applicable prospectus supplement. The applicable prospectus supplement will set forth material U.S. federal income tax considerations for holders of any debt securities and the securities exchange or quotation system on which any debt securities are listed or quoted, if any.
The applicable indenture may contain provisions that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in the event ofrequired, a highly leveraged or similar transaction involving us or in the event of a change of control.
Senior Debt Securities
Payment of the principal of premium, if any, and interest on senior debt securities will rank on parity with all of our other senior unsecured and unsubordinated debt.
Subordinated Debt Securities
Payment of the principal of, premium, if any, and interest on subordinated debt securities will be subordinated and junior in right of paymentpost-effective amendment to the prior payment in fullregistration statement of all of our senior debt. We will set forth in the applicablewhich this prospectus supplement relatingis a part, to any subordinated debt securities the subordination terms of such securities as well as the aggregate amount of outstanding indebtedness, as of the most recent practicable date, that by its terms would be senior to the subordinated debt securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional senior debt.
Merger, Consolidation or Sale
The applicable indenture will provide that we may consolidate with, or sell, lease or convey all or substantially all of our assets to, or merge with or into, any other corporation, provided that:
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| • | | either we shall be the continuing corporation, or the successor corporation (if other than the Company) formed by or resulting from any such consolidation or merger or which shall have received the transfer of such assets shall expressly assume payment of the principal of (and premium, if any), and interest on, all of the applicable debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the applicable indenture; |
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| • | | immediately after giving effect to such transaction and treating any indebtedness which becomes our obligation or an obligation of one of our subsidiaries as a result thereof as having been incurred by us or such subsidiary at the time of such transaction, no event of default under the applicable indenture, and no event which, after notice or the lapse of time, or both, would become such an event of default, shall have occurred and be continuing; and |
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| • | | an officer’s certificate and legal opinion covering such conditions shall be delivered to the applicable trustee. |
Covenants
The applicable indenture will contain covenants requiring us to take certain actions and prohibiting us from taking certain actions. The covenants with respect to any series of debt securities will be described in the prospectus supplement relating thereto.
Events of Default, Notice and Waiver
Each indenture will describe specific “events of default” with respect to any series of debt securities issued thereunder. Such “events of default” are likely to include (with grace and cure periods):
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| • | | default in the payment of any installment of interest on any debt security of such series; |
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| • | | default in the payment of principal of (or premium, if any, on) any debt security of such series at its maturity or upon any redemption, by declaration or otherwise; |
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| • | | default in making any required sinking fund payment for any debt security of such series; |
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| • | | default in the performance or breach of any other covenant or warranty of the Company contained in the applicable indenture (other than a covenant added to the indenture solely for the benefit of a series of debt securities issued thereunder other than such series), continued for a specified period of days after written notice as provided in the applicable indenture; |
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| • | | default in the payment of specified amounts of indebtedness of the Company or any mortgage, indenture or other instrument under which such indebtedness is issued or by which such indebtedness is secured, such default having occurred after the expiration of any applicable grace period and having resulted in the acceleration of the maturity of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled; |
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| • | | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Company or any of our significant subsidiaries or their property; and |
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| • | | any other event of default provided in the applicable resolution of our board of directors or the supplemental indenture under which we issue series of debt securities. |
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture. Unless otherwise indicated in the applicable prospectus supplement, if an event of default under any indenture with respect to debt securities of any series at the time outstanding occurs and is continuing, then the applicable trustee or the holders of not less than a majority of the principal amount of the outstanding debt securities of that series may declare the principal amount (or, if the debt securities of that series are original issue discount securities or indexed securities, such portion of the principal amounts may be specified in the terms thereof) of all the debt securities of that series to be due and payable immediately by written notice thereof to us (and to the applicable trustee if given by the holders). However, at any time after such a declaration of acceleration with respect to debt securities of such series (or of all debt securities then outstanding under any indenture, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, the holders of not less than a majority in principal amount of outstanding debt securities of such series (or of all debt securities then outstanding under the applicable indenture, as the case may be) may rescind and annul such declaration and its consequences if:
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| • | | we shall have deposited with the applicable trustee all required payments of the principal of (and premium, if any) and interest on the debt securities of such series (or of all debt securities then outstanding under the applicable indenture, as the case may be), plus certain fees, expenses, disbursements and advances of the applicable trustee; and |
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| • | | all events of default, other than the non-payment of accelerated principal (or specified portion thereof), with respect to debt securities of such series (or of all debt securities then outstanding under the applicable indenture, as the case may be) have been cured or waived as provided in such indenture. |
If an event of default relating to events of bankruptcy, insolvency or reorganization of the Company occurs and is continuing, then the principal amount of all of the debt securities outstanding, and any accrued interest, will automatically become due and payable immediately, without any declaration or other act by the trustee or any holder.
Each indenture also will provide that the holders of not less than a majority in principal amount of the outstanding debt securities of any series (or of all debt securities then outstanding under the applicable indenture, as the case may be) may waive any past default with respect to such series and its consequences, except a default:
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| • | | in the payment of the principal of (or premium, if any) or interest on any debt security of such series; or |
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| • | | in respect of a covenant or provision contained in the applicable indenture that cannot be modified or amended without the consent of the holder of each outstanding debt security affected thereby. |
Each trustee will be required to give notice to the holders of debt securities within 90 days of a default under the applicable indenture unless such default shall have been cured or waived; provided, however, that such trustee may withhold notice to the holders of any series of debt securities of any default with respect to such series (except a default in the payment of the principal of (or premium, if any) or interest on any debt security of such series or in the payment of any sinking fund installment in respect of any debt security of such series) if specified responsible officers of such trustee consider such withholding to be in the interest of such holders.
Each indenture will provide that no holders of debt securities of any series may institute any proceedings, judicialresell or otherwise with respect to such indenture or for any remedy thereunder, except in the case of failure of the applicable trustee, for 60 days, to act after it has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of such series, as well as an offer of indemnity reasonably satisfactory to it. This provision will not prevent, however, any holder of debt securities from instituting suit for the enforcement of payment of the principal of (and premium, if any) and interest on such debt securities at the respective due dates thereof.
Each indenture provides that in case an event of default shall occur and be known to any trustee and not be cured, the trustee must use the same degree of care as a prudent person would use in the conduct of his or her own affairs in the exercise of the trustee’s power. Subject to provisions in each indenture relating to its duties in case of default, no trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of any holders of any series of debt securities then outstanding under such indenture, unless such holders shall have offered to the trustee thereunder reasonable security or indemnity. The holders of not less than a majority in principal amount of the outstanding debt securities of any series (or of all debt securities then outstanding under an indenture, as the case may be) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon such trustee. However, a trustee may refuse to follow any direction which is in conflict with any law or the applicable indenture, which may involve such trustee in personal liability or which may be unduly prejudicial to the holders of debt securities of such series not joining therein.
Within 120 days after the close of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not such officer has knowledge of any default under the applicable indenture and, if so, specifying each such default and the nature and status thereof.
Modification of the Indenture
Each indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to:
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| • | | secure any debt securities; |
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| • | | evidence the assumption by a successor corporation of our obligations; |
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| • | | add covenants for the protection of the holders of debt securities; |
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| • | | cure any ambiguity or correct any inconsistency in the indenture; |
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| • | | establish the forms or terms of debt securities of any series; and |
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| • | | evidence and provide for the acceptance of appointment by a successor trustee. |
It is anticipated that modifications and amendments of an indenture may be made by us and the trustee, with the consent of the holders of not less than a majority in principal amount of each series of the outstanding debt securities issued under the indenture that are affected by the modification or amendment, provided that no such modification or amendment may, without the consent of each holder of such debt securities affected thereby:
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| • | | change the stated maturity date of the principal of (or premium, if any) or any installment of interest, if any, on any such debt security; |
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| • | | reduce the principal amount of (or premium, if any) or the interest, if any, on any such debt security or the principal amount due upon acceleration of an original issue discount security; |
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| • | | change the time or place or currency of payment of principal of (or premium, if any) or interest, if any, on any such debt security; |
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| • | | impair the right to institute suit for the enforcement of any such payment on or with respect to any such debt security; |
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| • | | reduce any amount payable on redemption; |
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| • | | modify any of the subordination provisions or the definition of senior indebtedness applicable to any subordinated debt securities in a manner adverse to the holders of those securities; |
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| • | | reduce the above-stated percentage of holders of debt securities necessary to modify or amend the indenture; or |
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| • | | modify the foregoing requirements or reduce the percentage of outstanding debt securities necessary to waive compliance with certain provisions of the indenture or for waiver of certain defaults. |
A record date may be set for any act of the holders with respect to consenting to any amendment. The holders of not less than a majority in principal amount of outstanding debt securities of each series affected thereby will have the right to waive our compliance with certain covenants in such indenture. Each indenture will contain provisions for convening meetings of the holders of debt securities of a series to take permitted action.
A prospectus supplement may set forth modifications or additions to these provisions with respect to a particular series of debt securities.
Conversion or Exchange Rights
A prospectus supplement will describe the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock, preferred stock or other securities. These terms will also include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. Such provisions will also include the conversion or exchange price (or manner or calculation thereof), the conversion or exchange period, the events requiring an adjustment of the conversion or exchange price, and provisions affecting conversion or exchange in the event of the redemption of such series of debt securities.
Registered Global Securities
We may issue the debt securities of a series in whole or in part in the form of one or more fully registered global securities that we will deposit with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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| • | | by the depositary for such registered global security to its nominee; |
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| • | | by a nominee of the depositary to the depositary or another nominee of the depositary; or |
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| • | | by the depositary or its nominee to a successor of the depositary or a nominee of the successor. |
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We anticipate that the following provisions will apply to all depositary arrangements for debt securities:
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| • | | ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants; |
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| • | | upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants; |
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| • | | any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and |
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| • | | ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). |
The laws of some states may require that certain purchasers of securities take physical deliverydispose of the securities in definitive form. These lawsthe manner contemplated under “Plan of Distribution” in this prospectus (as may limitbe supplemented and amended). This prospectus covers the abilitysale or other disposition by the Selling Stockholders of those personsup to own, transferthe total number of Common Stock that have been issued or pledge beneficial interests inmay be issued to the Selling Stockholders pursuant to the Purchase Agreement or the Share Purchase Agreement. Throughout this prospectus, when we refer to the securities being registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owneron behalf of the
registered global security,Selling Stockholders, we are referring to (i) the
depositaryConversion Shares, (ii) the Warrant Shares, (iii) the Private Placement Shares and (iv) the Ocumension Shares. When we refer to the Selling Stockholders in this prospectus, we are referring to the purchasers under the Purchase Agreement and Ocumension, as applicable, their permitted transferees or
the nominee, as the caseother successors-in-interest that may be
identified in a supplement to this prospectus or, if required, a post-effective amendment to the registration statement, of which this prospectus is a part.The information regarding securities beneficially owned after the offering assumes the sale of all securities offered by the Selling Stockholders. The Selling Stockholders may sell some, all or none of their securities. We do not know how long the Selling Stockholders will be consideredhold the sole ownersecurities before selling them, and we currently have no agreements, arrangements or holderunderstandings with the Selling Stockholders regarding the sale or other disposition of any of the debtsecurities. The securities representedcovered hereby may be offered from time to
time by the registered global security for all purposes underSelling Stockholders. The table below and the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
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| • | | will not be entitled to have the debt securities represented by a registered global security registered in their names; |
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| • | | will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and |
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| • | | will not be considered the owners or holders of the debt securities under the indenture. |
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security registeredinformation in the namenotes thereto are based upon information supplied by the Selling Stockholders. Any changed or new information given to us by the Selling Stockholders, including regarding the identity of, a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. None of the Company, the trustee or any other agent of the Company or the trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by, a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global securities. In such event, we will issue debt securities of that series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive form in exchange for a registered global security in such name or names as the depositary, based upon instructions from its participants, shall instruct the trustee.
We may also issue bearer debt securities of a series in the form of one or more global securities, referred to as “bearer global securities.” We will deposit these bearer global securities with a common depositary for Euroclear System and Clearstream Bank Luxembourg, Societe Anonyme, or with a nominee for the depositary identified in the prospectus supplement relating to that series. The prospectus supplement relating to a series of debt securities represented by a bearer global security will describe the specific terms and procedures, including the specific terms of the depositary arrangement and any specific procedures for the issuance of debt securities in definitive form in exchange for a bearer global security, with respect to the position of the series represented by a bearer global security.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease our obligations under the indenture as set forth below. Unless otherwise set forth in the applicable prospectus supplement, the subordination provisions applicable to any subordinated debt securities will be expressly subject to the discharge and defeasance provisions of the indenture.
We may discharge some of our obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable within one year (or are scheduled for redemption within one year). We may effect a discharge by irrevocably depositing with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, premium, if any, and interest on the debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus supplement, we may also discharge any and all of our obligations to holders of any series of debt securities at any time (“defeasance”). We also may be released from the obligations imposed by any covenants of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without creating an event of default (“covenant defeasance”). We may effect defeasance and covenant defeasance only if, among other things:
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| • | | we irrevocably deposit with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay at maturity (or upon redemption) the principal, premium, if any, and interest on all outstanding debt securities of the series; and |
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| • | | we deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that the holders of the series of debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance or covenant defeasance and that defeasance or covenant defeasance will not otherwise alter the holders’ U.S. federal income tax treatment of principal, premium, if any, and interest payments on the series of debt securities, which opinion, in the case of legal defeasance, must be based on a ruling of the Internal Revenue Service issued, or a change in U.S. federal income tax law. |
Although we may discharge or defease our obligations under the indenture as described in the two preceding paragraphs, we may not avoid, among other things, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities or to maintain an office or agency in respect of any series of debt securities.
Redemption of Securities
Debt securities may also be subject to optional or mandatory redemption on terms and conditions described in the applicable prospectus supplement.
From and after notice has been given as provided in the applicable indenture, if funds for the redemption of any debt securities called for redemption shall have been made available on such redemption date, such debt securities will cease to bear interest on the date fixed for such redemption specified in such notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price.
Notices
Holders of our debt securities will receive notices by mail at their addresses as they appear in the security register.
Title
We may treat the person in whose name a debt security is registered on the applicable record date as the owner of the debt security for all purposes, whether or not it is overdue.
Governing Law
Unless otherwise set forth in the applicable prospectus supplement, New York law will govern the indentures and the debt securities, without regard to its conflicts of law principles.
Concerning the Trustee
Each indenture provides that there may be more than one trustee under the indenture, each with respect to one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee under the indenture. Except as otherwise indicated in this prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by such trustee only with respect to the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal of, premium, if any, and interest on, and all registration, transfer, exchange, authentication and delivery (including authentication and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee with respect to that series at an office designated by the trustee in New York, New York.
Each indenture contains limitations on the right of the trustee, should it become a creditor of the Company, to obtain payment of claims in some cases or to realize on certain property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires any conflicting interest relating to any duties with respect to the debt securities, however, it must eliminate the conflict or resign as trustee.
WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock, common stock, or any combination thereof. We may issue warrants independently or together with any other securities offered by any prospectus supplement and may be attached to or separate from the other offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into by us with a warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. Further terms of the warrants and the applicable warrant agreementsSelling Stockholder, will be set forth in the applicable prospectus supplement.
The applicablea prospectus supplement relatingor amendments to any particular issuethe registration statement of warrants will describe the terms of the warrants, including, as applicable, the following:
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| • | | the title of the warrants; |
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| • | | the aggregate number of the warrants; |
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| • | | the price or prices at which the warrants will be issued; |
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| • | | the designation, terms and number of shares of preferred stock or common stock or principal amount of debt securities purchasable upon exercise of the warrants; |
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| • | | the designation and terms of the offered securities, if any, with which the warrants are issued and the number of the warrants issued with each offered security; |
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| • | | the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable; |
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| • | | the price at which each share of preferred stock, common stock or underlying debt securities purchasable upon exercise of the warrants may be purchased or the manner of determining such price; |
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| • | | the date on which the right to exercise the warrants shall commence and the date on which that right shall expire; |
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| • | | the minimum or maximum amount of the warrants which may be exercised at any one time; |
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| • | | information with respect to book-entry procedures, if any; |
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| • | | a discussion of certain federal income tax considerations; and |
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| • | | any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants.
UNITS
We may issue units comprising one or more securities described in this prospectus
in any combination. is a part, if and when necessary.The following description sets forth certain general termstable below lists the Selling Stockholders and provisionsother information regarding the shares of the units that weCommon Stock they may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the following:
the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
whether the units will be issued in fully registered or global form.
USE OF PROCEEDS
We currently intend to use the net proceeds from the sale of our securities for general corporate purposes, which may include commercial launch activities, sales and marketing expenditures, funding of clinical trials, research and development, regulatory activities, acquisitions of companies, products, intellectual property or other technology, investments, capital expenditures, and for any other purposes that we may specify in any prospectus supplement. While we have no current plans for any specific acquisitions at this time, we believe opportunities may existsell from time to time under this prospectus. For purposes of the table below, we have assumed that the mandatory conversion of the Series B Preferred occurs on August 15, 2023 (ten business days after our Annual Meeting, at which we are soliciting the Stockholder Approval) and that there are no adjustments to expand our current business through strategic alliances or acquisitionsthe conversion price of other companies, products or compounds. the Series B Preferred prior to such mandatory conversion. We have not yet determined beneficial ownership in accordance with the amountrules and regulations of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities. Pending any use, as described above, we intend to invest the net proceeds in high-quality, short-term, interest-bearing securities. Our plans to use the estimated net proceeds from the sale of these securities may change, and if they do, we will update this information in a prospectus supplement.
RATIO OF FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS
Our ratio of combined fixed charges and preference dividends to earnings for each of the five most recently completed fiscal years and any required interim periods will each be specified in a prospectus supplement or in a document that we file with the SEC and
incorporatethe information is not necessarily indicative of beneficial ownership for any other purpose. Except as indicated by
reference pertainingthe footnotes below, we believe, based on information furnished to us, that the persons and entities named in the table below have sole voting and sole investment power with respect to all shares that they beneficially own, subject to applicable community property laws. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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| | Beneficial Ownership
Before the Offering | | Maximum Number of Shares that may be Offered and Sold in the Offering | | Beneficial Ownership
After the Offering |
Name of Selling Holder | | Number of Shares(1) | | %(1)(2) | | Number of Shares(3) | | | Number of Shares | | %(2) |
Caligan Partners LP (4) | | 16,835,154 | | 30.9% | | 17,156,377 | | | 478,777 | | * |
Velan Capital Investment Management LP (5) | | 13,608,533 | | 25.0% | | 14,150,780 | | | 257,753 | | * |
AIGH Investment Partners, LP (6) | | 1,790,882 | | 3.3% | | 1,790,882 | | | – | | – |
WVP Emerging Manager Onshore Fund, LLC – AIGH Series (7) | | 469,211 | | 0.9% | | 469,211 | | | – | | – |
WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series (8) | | 127,749 | | 0.2% | | 127,749 | | | – | | – |
Altium Growth Fund, LP (9) | | 2,984,803 | | 5.5% | | 2,984,803 | | | – | | – |
Clearline Capital Partners LP (10) | | 2,341,357 | | 4.3% | | 2,341,357 | | | – | | – |
Clearline Capital Partners Master Fund LP (11) | | 643,446 | | 1.2% | | 643,446 | | | – | | – |
Stonepine Capital, LP (12) | | 5,969,607 | | 11.0% | | 5,969,607 | | | – | | – |
Alice Winzer Lytton Family LLC (13) | | 835,745 | | 1.5% | | 835,745 | | | – | | – |
Lytton-Kambara Foundation (14) | | 2,149,058 | | 4.0% | | 2,149,058 | | | – | | – |
Ocumension Therapeutics (15) | | 1,144,945 | | 2.1% | | 1,144,945 | | | – | | – |
* Represents beneficial ownership of less than one percent of our outstanding Common Stock.
(1)All entries exclude beneficial ownership of the Warrant Shares because they are not exercisable as of the date hereof and will not become exercisable within 60 days of June 16, 2023. The Warrants are not exercisable prior to Stockholder Approval and following Stockholder Approval, the Warrants are exercisable at any time upon or after the earlier of (i) immediately prior to a change of control of Alimera and (ii) March 24, 2024.
(2) Based upon 8,805,727 shares of Common Stock outstanding as of June 16, 2023, plus the 45,617,114 shares of Common Stock issuable upon the assumed mandatory conversion of 78,617 shares of Series B Preferred held by Selling Stockholders on August 15, 2023 and, in the case of the beneficial ownership after the offering, the 1,600,000 shares of Common Stock issuable upon the assumed exercise of the Warrants held by the Selling Stockholders. In calculating percentages of shares of Common Stock beneficially owned by a particular Selling Stockholder, warrants, options or other derivative securities that are presently exercisable or exercisable within 60 days of June 16, 2023 are deemed to be beneficially owned by the person holding such securities for the purpose of calculating the percentage ownership of that person, but are not treated as outstanding for the purpose of calculating the percentage ownership of any other person.
(3) Assumes the exercise in full of the Warrants held by the Selling Stockholder, without regard to any limitations on exercise.
(4) Includes 478,777 shares of Common Stock held by Caligan Partners Master Fund LP, a Cayman Islands limited partnership (the “Caligan Fund”) and certain accounts (the “Caligan Accounts”) managed by Caligan Partners LP, a Delaware limited partnership (“Caligan”). In addition to the issuance, if any,shares of Common Stock, Caligan is also the beneficial owner of 28,500 shares of Series B Preferred and Warrants to purchase an additional 800,000 shares of Common Stock. Caligan and David Johnson, the Managing Partner of Caligan and the Managing Member of Caligan Partners
GP LLC (the general partner of Caligan), beneficially own the securities reported herein that are held by usthe Caligan Fund and the Caligan Accounts. The business address of preferenceCaligan is 515 Madison Avenue, 8th Floor, New York, New York 10022.
(5) These securities inare held by entities to which Velan Capital Investment Management LP (“Velan Capital”) serves as the future.
DIVIDEND POLICY
We have not declared or paid cash dividends on our common stock since our inception. We currently intendinvestment manager, including Velan Capital Master Fund LP (“Velan Master”) and Velan Capital SPV I LLC (“Velan SPV”). Velan Master holds 1,659,654 shares of Common Stock (including the Private Placement Shares), 14,117 shares of Series B Preferred and Warrants to
retain all available fundspurchase an additional 800,000 shares of Common Stock. Velan SPV holds 7,000 shares of Series B Preferred. Velan Capital Holdings LLC (“Velan GP”), as the general partner of Velan Master and
any future earnings for use in the
operationmanaging member of Velan SPV, may be deemed to beneficially own the shares beneficially owned by Velan Master and Velan SPV. Velan Capital, as the investment manager of Velan Master and Velan SPV, may be deemed to beneficially own the shares beneficially owned by Velan Master and Velan SPV. Velan Capital Management LLC (“Velan IM GP”), as the general partner of Velan Capital, may be deemed to beneficially own the shares beneficially owned by Velan Master and Velan SPV. Balaji Venkataraman, as a Managing Member of each of Velan GP and Velan IM GP, may be deemed to beneficially own the shares beneficially owned by Velan Master and Velan SPV. Adam Morgan, a member of our
Board, as a Managing Member of each of Velan GP and Velan IM GP, may be deemed to beneficially own the shares beneficially owned by Velan Master and Velan SPV. The principal address for Velan Capital is 1055b Powers Place, 2nd Floor, Alpharetta, Georgia 30009. (6) Mr. Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH CM”), who is an advisor with respect to the securities held by AIGH Investment Partners, L.P. (“AIGH LP”). Mr. Hirschman has voting and investment control over the securities indirectly held by AIGH CM, directly held by AIGH IP and directly held by Mr. Hirschman and his family. The address for AIGH CM, AIGH LP and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209.
(7) Mr. Orin Hirschman is the managing member of AIGH CM, who is a sub-advisor with respect to the securities held by WVP Emerging Manager Onshore Fund, LLC - AIGH Series. Mr. Hirschman has voting and investment control over the securities indirectly held by AIGH CM and directly held by Mr. Hirschman and his family directly. The address for AIGH CM and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209.
(8) Mr. Orin Hirschman is the managing member of AIGH CM, who is a sub-advisor with respect to the securities held by WVP Emerging Manager Onshore Fund, LLC - Optimized Equity Series. Mr. Hirschman has voting and investment control over the securities indirectly held by AIGH CM and directly held by Mr. Hirschman and his family directly. The address for AIGH CM and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209.
(9) Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these securities. The principal address of Altium Capital Management, LP is 152 West 57th Street, 20th Floor, New York, NY 10019.
(10) The business and do not anticipate paying any cash dividends in the foreseeable future. Any future determination to declare cash dividends will be made at the discretionaddress of our boardClearline Capital Partners LP is 950 3rd Avenue, 23rd Floor, New York, NY 10022.
(11) The business address of directors, subject to compliance with certain covenants under our credit facilities (including our currently outstanding Credit Facility), which restrict or limit our ability to declareClearline Capital Partners Master Fund LP is 950 3rd Avenue, 23rd Floor, New York, NY 10022.
(12) The business address of pay dividends, and will depend on our financial condition, resultsStonepine Capital, LP is 919 NW Bond Street, Suite 203, Bend, OR 97703.
(13) The business address of operations, capital requirements, generalAlice Winzer Lytton Family LLC is 467 Central Park West 17-A, New York, NY 10025.
(14) The business conditions and other factors that our boardaddress of directors may deem relevant. Consequently, stockholders will need to sell our securities to realize a return on their investment, if any.Lytton-Kambara Foundation is 467 Central Park West 17-A, New York, NY 10025.
(15) The business address for Ocumension Therapeutics is 56F, One Museum Place, 669 Xin Zha Road, Jing’an District, Shanghai, PRC.
PLANAN OF DISTRIBUTION
WeThe Selling Stockholders may, sell the securities from time to time, sell, transfer or otherwise dispose of any or all of their shares of Common Stock or interests in shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. Selling Stockholders as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of Common Stock previously issued and the shares of Common Stock issuable upon conversion of our Series B Preferred and exercise of the Warrants or interests in shares of Common Stock received after the date of this prospectus from a Selling Stockholder as a gift, pledge, partnership distribution or other transfer. The Selling Stockholders may sell their shares of our Common Stock pursuant to underwritten public offerings, negotiated transactions, block trades or a combinationthis prospectus at fixed prices, at prevailing market prices at the time of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute securities 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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| • | | sale, at prices related to such prevailing market prices; or |
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| • | | at negotiated prices. |
We may also sell equity securities covered by this registration statement in an “at-the-market offering” as defined in Rule 415 under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price, either:
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| • | | on or through the facilities of The Nasdaq Global Market or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or |
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| • | | to or through a market maker otherwise than on The Nasdaq Global Market or such other securities exchanges or quotation or trading services. |
Such at-the-market offerings, if any, may be conducted by underwriters acting as principal or agent.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
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| • | | the name or names of any underwriters, dealers or agents, if any; |
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| • | | the purchaseprevailing market price, of the securities 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 public offering price; |
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| • | | any discounts or concessions allowed or reallowed or paid to dealers; and |
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| • | | any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of
sale. sale, or at negotiated prices.The obligationsSelling Stockholders may use any one or more of the following methods when disposing of shares or interests therein:
| | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
| | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| | an exchange distribution in accordance with the rules of the applicable exchange; |
| | privately negotiated transactions; |
| | short sales; |
| | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; |
| | a combination of any such methods of sale; and |
| | any other method permitted pursuant to applicable law. |
The Selling Stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of Common Stock or Warrants owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer the shares of Common Stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our Common Stock or interests therein, the Selling Stockholders may enter into hedging transactions with broker- dealers or other financial institutions, which may in turn engage in short sales of the Common Stock in the course of hedging the positions they assume. The Selling Stockholders may also sell shares of our Common Stock short and deliver these securities to close out their short positions, or loan or pledge the Common Stock to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the Selling Stockholders from the sale of the Common Stock offered by them will be the purchase price of the Common Stock less discounts or commissions, if any. Each of the Selling Stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of Common Stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
The Selling Stockholders and any underwriters, to purchasebroker-dealers or agents that participate in the securitiessale of the Common Stock or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act.
Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the conditionsprospectus delivery requirements of the Securities Act.
To the extent required, the shares of our Common Stock to be sold, the names of the Selling Stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the applicable underwriting agreement. We may offerregistration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the Common Stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the Common Stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
We have advised the Selling Stockholders that the anti-manipulation rules of Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may apply to sales of shares in the market and to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase allactivities of the securities offered by theSelling Stockholders and their affiliates. In addition, we will make copies of this prospectus supplement. Any public offering price and any discounts(as it may be supplemented or concessions allowed or reallowed or paid to dealers may changeamended from time to time. We may use underwriters with whom we have a material relationship. We will describe intime) available to the Selling Stockholders for the purpose of satisfying the prospectus supplement, namingdelivery requirements of the underwriter,Securities Act. The Selling Stockholders may indemnify any broker-dealer that participates in transactions involving the nature of any such relationship.
We may sell 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 inshares against certain liabilities, including liabilities arising under the
prospectus supplement. UnlessSecurities Act.We have agreed to indemnify the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of 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.
We may provide agents and underwriters with indemnificationSelling Stockholders against civil liabilities, related to this offering, including liabilities under the Securities Act or contribution with respectand state securities laws, relating to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidityregistration of the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids. Overallotment involves sales in excessshares offered by this prospectus.We have agreed with the Selling Stockholders to keep the registration statement of the offering size, which createthis prospectus constitutes a short position. Stabilizing transactions permit bids to purchase the underlying security so longpart effective until such time 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 soldshares offered by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may causeSelling Stockholders have been effectively registered under the priceSecurities Act and disposed of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any underwriters who are qualified market makers on The Nasdaq Global Market may engage in passive market making transactions in the securities on The Nasdaq Global Market in accordance with
such registration statement, the shares offered by the Selling Stockholders have been disposed of pursuant to Rule 103 of Regulation M, during144 under the business day prior toSecurities Act or the pricing ofshares offered by 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. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced,Selling Stockholders may be discontinued at any time.resold pursuant to Rule 144 without restriction or limitation (including without the requirement to be in compliance with Rule 144(c)(1)) or another similar exemption under the Securities Act.
LE
LEGALGAL MATTERS
The validity of the issuance of the securities being offered hereby will be passed upon for us by Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, Boston, Massachusetts.
EXPERTS
PERTSThe audited financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
auditing. WH
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The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not an offer to buy these securities in any state where the offer or sale is not permitted. |
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Prospectus | Subject to Completion, Dated October 20, 2017 |
$25,000,000
Common Stock
Alimera Sciences, Inc. (“Alimera”) has entered into a Common Stock Sales Agreement, or the “Sales Agreement”, with H.C. Wainwright & Co., LLC (“H.C. Wainwright”), relating to shares of our common stock, $0.01 par value per share, offered by this prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $25.0 million from time to time through H.C. Wainwright, acting as agent. Sales of our common stock, if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act.
Our common stock trades on The NASDAQ Global Market under the symbol “ALIM”. On October 19, 2017, the last reported sale price for our common stock on The NASDAQ Global Market was $1.38 per share.
H.C. Wainwright will act as sales agent and use commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell on our behalf all of the shares of common stock requested to be sold by us, on mutually agreed terms between H.C. Wainwright and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement. H.C. Wainwright will be entitled to a placement fee of up to 3.0% of the gross sales price of the shares sold. In connection with the sale of our common stock on our behalf, H.C. Wainwright will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of H.C. Wainwright will be deemed to be underwriting commissions or discounts.
Investing in our common stock involves a high degree of risk. See “ERE YOU CAN FIND MORE INFORMATION Risk Factors” beginning on page S-4of this prospectus, as well as the section captioned “Item 1A—Risk Factors” in our most recently filed annual report on Form 10-K or quarterly report on Form 10-Q which is incorporated by reference into this prospectus, for certain risks you should consider. You should read the entire prospectus carefully before you make your investment decision.Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus and the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
H.C. Wainwright & Co.
The date of this prospectus is , 2017
TABLE OF CONTENTS
PROSPECTUS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, (the “SEC”), utilizing a “shelf” registration process. Under this process, we may, from time to time, offer shares of our common stock having an aggregate offering price of up to $25.0 million, from time to time, under this prospectus at prices and on terms to be determined by market conditions at the time of offering.
We provide information to you about this offering of shares of our common stock in two separate documents that are bound together: (1) this prospectus, which describes the specific details regarding this offering; and (2) the accompanying base prospectus, which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If information in this prospectus is inconsistent with the accompanying base prospectus, you should rely on this prospectus. However, if any statement in one of these documents is inconsistent with a statement in another document having a later date, for example, a document incorporated by reference in this prospectus, the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
You should rely only on the information contained in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize for use in connection with this offering. We have not, and H.C. Wainwright has not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and H.C. Wainwright is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus entitled “Where You Can Find Additional Information” and “Incorporation of Certain Documents By Reference.”
We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus outside the United States.SEC. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
Unless the context otherwise requires, throughout this prospectus and any applicable prospectus supplement, the words “Alimera” “we,” “us,” the “registrant” or the “Company” refer to Alimera Sciences, Inc. and its subsidiaries (as applicable).
Alimera Sciences” and “ILUVIEN” are trademarks of Alimera Sciences, Inc. This prospectus may also include other registered and unregistered trademarks of Alimera Sciences, Inc. and other persons.
PROSPECTUS SUMMARY
This summary highlights selected information about us, this offering and information appearing elsewhere in this prospectus, in the accompanying prospectus and in the documents we incorporate by reference. This summary is not complete and does not contain all the information you should consider before investing in our common stock pursuant to this prospectus and the accompanying prospectus. Before making an investment decision, to fully understand this offering and its consequences to you, you should carefully read this entire prospectus and the accompanying prospectus, including “Risk Factors” beginning on page S-4 of this prospectus, the financial statements, and related notes, and the other information that we incorporated by reference herein, including our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q we file from time to time.
Our Company
Alimera is a pharmaceutical company that specializes in the commercialization and development of prescription ophthalmic pharmaceuticals. We are presently focused on diseases affecting the back of the eye, or retina, because these diseases are not well treated with current therapies and will affect millions of people in aging populations. Our commitment to retina specialists and their patients is manifest in our product and development portfolio designed to treat early- and late-stage diseases.
Our only commercial product is ILUVIEN®, which is approved to treat diabetic macular edema (DME). DME is a disease of the retina that affects individuals with diabetes and can lead to severe vision loss and blindness. ILUVIEN has received marketing authorization in the United States (U.S.), Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Sweden and the United Kingdom. In the U.S., ILUVIEN is indicated for the treatment of DME in patients who have been previously treated with a course of corticosteroids and did not have a clinically significant rise in intraocular pressure (IOP). In the European Economic Area (EEA) countries in which ILUVIEN has received marketing authorization, it is indicated for the treatment of vision impairment associated with DME considered insufficiently responsive to available therapies.
As part of the approval process for DME in Europe, we committed to conduct a five-year, post-authorization, open label registry study in 800 patients treated with ILUVIEN. In the fourth quarter of 2016, we requested approval to modify our protocol to cap enrollment in the study due to our post market safety surveillance not showing any unexpected safety signals. As of June 30, 2017, 562 patients were enrolled in this study. We received regulatory approval from the Medicines & Healthcare products Regulatory Agency (MHRA) in July 2017 to cease enrollment.
In July 2017, we amended our license for the technology underlying ILUVIEN to include the treatment of non-infectious posterior uveitis (NIPU) in Europe, the Middle East and Africa from pSivida US, Inc. (pSivida). NIPU is an inflammatory disease of the uveal tract, which is comprised of the iris, ciliary body and choroid, that can lead to severe vision loss and blindness. We plan to file an application for a new indication for ILUVIEN for NIPU in the 17 EEA countries where ILUVIEN is currently approved for the treatment of DME.
We launched ILUVIEN in Germany and the United Kingdom in the second quarter of 2013, in the U.S. and Portugal in the first quarter of 2015. In September 2017, we announced that ILUVIEN became available in Ireland.
In addition, we have entered into various agreements under which distributors will provide regulatory, reimbursement or sales and marketing support for future commercialization of ILUVIEN in numerous countries in the Middle East, Italy, Spain, Australia, New Zealand and Canada. In the third quarter of 2016, our Middle East distributor launched ILUVIEN and initiated named patient sales in the United Arab Emirates. Our Italian distributor launched ILUVIEN in Italy in the second quarter of 2017. As of June 30, 2017, we have recognized sales of ILUVIEN to our distributors in the Middle East, Italy and Spain.
Corporate Information
We were incorporated in Delaware in June 2003 and commenced operations on that date. Our principal executive office is located at 6120 Windward Parkway, Suite 290, Alpharetta, Georgia 30005 and our telephone number is (678) 990-5740. Our website address is www.alimerasciences.com. The information contained on, or that can be accessed through, our website is not part of this prospectus.
Alimera Sciences” and “ILUVIEN” are trademarks of Alimera Sciences, Inc. This prospectus may also include other registered and unregistered trademarks of Alimera Sciences, Inc. and other persons.
The Offering
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Common stock offered by us | | Shares having an aggregate offering price of up to $25.0 million. |
Manner of offering | | “At the market offering” that may be made from time to time through our sales agent, H.C. Wainwright. See “Plan of Distribution” on page S-9 of this prospectus. |
Use of proceeds | | We currently intend to use the net proceeds from the sale of our securities for general corporate purposes, which may include commercial launch activities, sales and marketing expenditures, funding of clinical trials, research and development, regulatory activities, acquisitions of companies, products, intellectual property or other technology, investments, capital expenditures, and for any other purposes that we may specify in any prospectus supplement. While we have no current plans for any specific acquisitions at this time, we believe opportunities may exist from time to time to expand our current business through strategic alliances or acquisitions of other companies, products or compounds. We have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities. Pending any use, as described above, we intend to invest the net proceeds in high-quality, short-term, interest-bearing securities. See “Use of Proceeds” on page S-7 of this prospectus. |
Risk factors | | This investment involves a high degree of risk. See “Risk Factors” beginning on page S-4 of this prospectus, as well as the other information included or incorporated by reference into this prospectus and the accompanying prospectus, for a discussion of risk factors that you should read and consider before investing in our common stock. |
NASDAQ Global Market symbol | | “ALIM” |
RISK FACTORS
An investment in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks discussed below and under the sections captioned “Risk Factors” contained in our most recent Annual Report on Form 10-K, as revised or supplemented by our most recent quarterly report on Form 10-Q, as well as our subsequent Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, which are incorporated by reference herein in their entirety, together with other information in this prospectus and the accompanying prospectus, the information and documents incorporated by reference in this prospectus and the accompanying prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment.
Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose part or all of your investment. This prospectus, the accompanying prospectus and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks mentioned below. Forward-looking statements included in this prospectus are based on information available to us on the date hereof, and all forward-looking statements in documents incorporated by reference are based on information available to us as of the date of such documents. We disclaim any intent to update any forward-looking statements.
Risks Related to this Offering
Resales of our common stock in the public market during this offering by our stockholders may cause the market price of our common stock to fall.
We may issue common stock from time to time in connection with this offering. This issuance from time to time of these new shares of our common stock, or our ability to issue these shares of common stock in this offering, could result in resales of our common stock by our current stockholders concerned about the potential dilution of their holdings. In turn, these resales could have the effect of depressing the market price for our common stock.
There may be future sales or other dilution of our equity, which may adversely affect the market price of our common stock.
We are generally not restricted from issuing additional common stock, including any securities that are convertible into or exchangeable for, or that represent the right to receive, common stock. The market price of our common stock could decline as a result of sales of common stock or securities that are convertible into or exchangeable for, or that represent the right to receive, common stock after this offering or the perception that such sales could occur.
We have broad discretion in how we use the net proceeds of this offering, and we may not use these proceeds effectively or in ways with which you agree.
We have not designated any portion of the net proceeds from this offering to be used for any particular purpose. Our management will have broad discretion as to the application of the net proceeds of this offering and could use them for purposes other than those contemplated at the time of this offering. Our stockholders may not agree with the manner in which our management chooses to allocate and spend the net proceeds. Moreover, our management may use the net proceeds for corporate purposes that may not increase the market price of our common stock.
Purchasers will experience immediate dilution in the book value per share of the common stock purchased in the offering.
The shares sold in this offering, if any, will be sold from time to time at various prices. However, the expected offering price of our common stock will be substantially higher than the net tangible book value per share of our outstanding common stock. After giving effect to the sale of shares of our common stock in the aggregate amount of $25.0 million at an assumed offering price of $1.38 per share, the last reported sale price of our common stock on October 19, 2017 on The NASDAQ Global Market, and after deducting estimated commissions and estimated offering expenses, our as-adjusted net tangible book value as of June 30, 2017 would have been approximately $70.3 million, or approximately $0.83 per common share. This represents an immediate increase in net tangible book value of approximately $0.14 per common share to our existing stockholders and an immediate dilution in as-adjusted net tangible book value of approximately $0.55 per common share to purchasers of our common stock in this offering.
In addition to this offering, subject to market conditions and other factors, we may pursue additional equity financings in the future, including future public offerings or future private placements of equity securities. Further, the exercise of outstanding options and warrants could result in further dilution to investors and any additional shares issued in connection with acquisitions will result in dilution to investors. In
addition, the market price of our common stock could fall as a result of resales of any of these shares of common stock due to an increased number of shares available for sale in the market.
FORWARD-LOOKING STATEMENTS
This prospectus, the accompanying prospectus and the SEC filings that are incorporated by reference into this prospectus and the accompanying prospectus contain or incorporate by reference forward-looking statements. The Private Securities Litigation Reform Act of 1995 has established that these statements qualify for safe harbors from liability. You can identify these statements by forward-looking words such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “contemplates,” “predict,” “project,” “target,” “likely,” “potential,” “continue,” “ongoing,” “will,” “would,” “should,” “could,” or the negative of these terms and similar expressions or words. You should read statements that contain these words carefully because they discuss future expectations, contain projections of future results of operations or financial condition, or state other “forward-looking” information.
We believe it is important to communicate our expectations to our stockholders. However, there may be events in the future that we are not able to predict accurately or over which we have no control. The risk factors and cautionary language discussed in this prospectus and the accompanying prospectus provide examples of risks, uncertainties and events that may cause actual results to differ materially from the expectations described in the forward-looking statements, including:
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• | uncertainty as to our ability to achieve profitability and positive cash flow through the commercialization of ILUVIEN® in the European Economic Area (EEA), the United States (U.S.) and other regions of the world where we sell ILUVIEN;
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• | our ability to operate our business in compliance with the covenants and restrictions that we are subject to under our credit facility; |
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• | dependence on third-party manufacturers to manufacture ILUVIEN or any future products or product candidates in sufficient quantities and quality; |
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• | our ability to raise sufficient additional funding and our need to raise such funds; |
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• | uncertainty as to the pricing and reimbursement guidelines for ILUVIEN or any future products or product candidates, including ILUVIEN; |
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• | our ability to successfully commercialize ILUVIEN following regulatory approval in additional markets; |
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• | delay in or failure to obtain regulatory approval of ILUVIEN in additional countries or any future products or product candidates; and |
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• | the extent of government regulations. |
All written and verbal forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We caution investors not to rely too heavily on the forward-looking statements we make or that are made on our behalf. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, level of activity, performance or achievements. Any forward-looking statement made by us in this prospectus speaks only as of the date of this prospectus. Except as required by law, we disclaim any duty to update any of these forward-looking statements after the date of such statements are made, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
You should read this prospectus and the documents that we reference in this prospectus and have been filed as exhibits to the registration statement of which this prospectus is a part completely and with the understanding that our actual future results may be materially different from what we expect.
In addition, you should refer to the section of this prospectus entitled “Risk Factors” as well as the documents we have incorporated by reference for a discussion of other important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of our securities offered hereby. Except as described in any free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of our securities for general corporate purposes, which may include commercial launch activities, sales and marketing expenditures, funding of clinical trials, research and development, regulatory activities, acquisitions of companies, products, intellectual property or other technology, investments, capital expenditures, and for any other purposes that we may specify in any prospectus supplement. While we have no current plans for any specific acquisitions at this time, we believe opportunities may exist from time to time to expand our current business through strategic alliances or acquisitions of other companies, products or compounds. We have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities.
Pending any use, as described above, we intend to invest the net proceeds in high-quality, short-term, interest-bearing securities.
DILUTION
If you invest in our common stock, your interest will be diluted immediately to the extent of the difference between the public offering price per share and the adjusted net tangible book value per share of our common stock after this offering.
The net tangible book value of our common stock as of June 30, 2017 was approximately $46.2 million, or approximately $0.69 per share. Net tangible book value per share represents the amount of our total tangible assets, excluding goodwill and intangible assets, less total liabilities, divided by the total number of shares of our common stock outstanding. Dilution per share to new investors represents the difference between the amount per share paid by purchasers for each share of common stock in this offering and the net tangible book value per share of our common stock immediately following the completion of this offering.
After giving effect to the sale of shares of our common stock in the aggregate amount of $25.0 million at an assumed offering price of $1.38 per share, the last reported sale price of our common stock on October 19, 2017 on The NASDAQ Global Market, and after deducting estimated commissions and estimated offering expenses, our as-adjusted net tangible book value as of June 30, 2017 would have been approximately $70.3 million, or approximately $0.83 per common share. This represents an immediate increase in net tangible book value of approximately $0.14 per common share to our existing stockholders and an immediate dilution in as-adjusted net tangible book value of approximately $0.55 per common share to purchasers of our common stock in this offering, as illustrated by the following table:
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| Assumed public offering price per share | | | | | | $ | 1.38 | |
| Net tangible book value per share as of June 30, 2017 | | $ | 0.69 | | | | | |
| Increase per share attributable to the offering | | $ | 0.14 | | | | | |
| As-adjusted net tangible book value per share after this offering | | | | | | $ | 0.83 | |
| Dilution per share to new investors | | | | | | $ | 0.55 | |
The table above assumes, for illustrative purposes only, an aggregate of 18,115,942 shares of our common stock are sold at a price of $1.38 per share, for aggregate gross proceeds of $25.0 million. The shares, if any, sold in this offering will be sold from time to time at various prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price of $1.38 per share shown in the table above, assuming all of our common stock in the aggregate amount of $25.0 million is sold at that price, would increase adjusted net tangible book value per share after the offering to $0.91 per common share and would decrease the dilution in net tangible book value per share to new investors in this offering to $0.47 per common share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $1.38 per common share shown in the table above, assuming all of our common stock in the aggregate amount of $25.0 million is sold at that price, would decrease adjusted net tangible book value per share after the offering to $0.53 per common share and would increase the dilution in net tangible book value per share to new investors in this offering to $0.85 per common share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
To the extent that any options or warrants are exercised, new options are issued under our equity incentive plans or we otherwise issue additional shares of common stock in the future, there will be further dilution to new investors.
PLAN OF DISTRIBUTION
We have entered into the Sales Agreement with H.C. Wainwright, pursuant to which we may issue and sell up to an aggregate of $25,000,000 of our common stock from time to time through H.C. Wainwright acting as agent. H.C. Wainwright may sell our shares of common stock by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act.
H.C. Wainwright will offer our common stock at prevailing market prices subject to the terms and conditions of the Sales Agreement as agreed upon by us and H.C. Wainwright. We will designate the number of shares which we desire to sell, the time period during which sales are requested to be made, any limitation on the number of shares that may be sold in one day and any minimum price below which sales may not be made. Either H.C. Wainwright or we may suspend the offering of our common stock being made under the Sales Agreement upon proper notice to the other party.
We will pay H.C. Wainwright in cash, upon each sale of our shares of common stock pursuant to the Sales Agreement, a commission equal to up to 3.0% of the gross proceeds from each sale of shares of our common stock. Because there is no minimum offering amount required as a condition to this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. Pursuant to the terms of the Sales Agreement, we agreed to reimburse H.C. Wainwright for the documented fees and costs of its legal counsel up to $50,000. Additionally, pursuant to the terms of the Sales Agreement, at the end of each calendar quarter during the term of the sales agreement, we have agreed to reimburse H.C. Wainwright up to $2,500 for certain documented fees and costs of its legal counsel. We estimate that the total expenses of the offering payable by us, excluding commissions payable to H.C. Wainwright under the Sales Agreement, will be approximately $200,000.
Settlement for sales of shares of our common stock will occur on the third trading day following the date on which any sales are made, or on some other date that is agreed upon by us and H.C. Wainwright in connection with a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement. Sales of our shares of common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and H.C. Wainwright may agree upon.
H.C. Wainwright will act as sales agent on a commercially reasonable efforts basis consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of The Nasdaq Stock Market LLC. In connection with the sale of the shares of common stock on our behalf, H.C. Wainwright will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of H.C. Wainwright will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to H.C. Wainwright against certain civil liabilities, including liabilities under the Securities Act.
The offering of our shares of common stock pursuant to the Sales Agreement will terminate upon the earlier of the (i) sale of all of our shares of common stock provided for in this prospectus, or (ii) termination of the Sales Agreement as permitted therein.
H.C. Wainwright and its affiliates may in the future provide various investment banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M, H.C. Wainwright will not engage in any market making activities involving our shares of common stock while the offering is ongoing under this prospectus. This summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions. We are filing a copy of the Sales Agreement with the SEC on a Current Report on Form 8‑K concurrently with the filing of this prospectus.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 100,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share. 1,300,000 shares of preferred stock have been designated as “Series A Convertible Preferred Stock” and 8,417 shares of preferred stock have been designated as “Series B Convertible Preferred Stock.”
Common Stock
As of October 19, 2017, there were 69,105,380 shares of common stock outstanding held of record by 32 stockholders.
Series A Convertible Preferred Stock
As of October 19, 2017, there were 600,000 shares of Series A Convertible Preferred Stock and warrants to purchase 300,000 shares of Series A Convertible Preferred Stock outstanding.
Series B Convertible Preferred Stock
As of October 19, 2017, there were 8,417 shares of Series B Convertible Preferred Stock outstanding.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will be passed upon for us by Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, Boston, Massachusetts. H.C. Wainwright is being represented in connection with this offering by Duane Morris LLP, Newark, New Jersey.
EXPERTS
The audited financial statements incorporated by reference in this prospectus, the accompanying prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus and the accompanying prospectus. This prospectus, which is part of the registration statement, omits certain information, exhibits, schedules and undertakings set forth in the registration statement as permitted byand the SEC.exhibits to the registration statement. For further information pertainingwith respect to us and theour securities, offered in this prospectus, reference is madewe refer you to thatthe registration statement and the exhibits and schedules tofiled as a part of the registration statement. Statements contained in this prospectus as to the contents or provisions of any documents referred to in this prospectus are not necessarily complete, and in each instance where a copy of the document has been filed as an exhibit to the registration statement, reference is made to the exhibit for a more complete description of the matters involved.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings can be read and copied at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains an Interneta website at www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including us.
General information about our company, including our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as any amendments and exhibits to those reports, are available free The address of
chargethe SEC website is www.sec.gov.We maintain a website at www.alimerasciences.com. Information contained in, or accessible through, our website at www.alimerasciences.com as soon as reasonably practicable after we file them with, or furnish them to, the SEC. Information on, or than can be accessed through, our websiteis not a part of, and is not incorporated into, this prospectus, or other securities filings and isyou should not aconsider it part of these filings.this prospectus.
INCORPO
INCORPORATIONRATION OF CERTAIN INFORMATIONDOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information we incorporateincorporated by reference is an importantconsidered to be part of this prospectus, and later information in documents that we file later with the SEC will automatically update and supersede some ofinformation in this information.prospectus. We hereby incorporate by reference the documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than Current Reports on Form 8-K containing only information furnished under Item 2.02 or Item 7.01 of Form 8-K, unless otherwise indicated therein), including filings made after the date of the initial registration statement, until we sell all of the securities covered by this prospectus or the sale of securities by us pursuant to this prospectus is terminated. The documents we incorporate by reference are:
following documents: |
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| • | | our Annual Report on Form 10-K for the year ended December 31, 20162022, filed with the SEC on March 3, 2017;31, 2023; |
| · | | the information under the captions “Proposal 1: Election of Directors,” “Corporate Governance,” “Proposal 2: Ratification of Selection of Independent Registered Public Accounting Firm,” “Security Ownership of Certain Beneficial Owners and Management,” “Certain Relationships and Related Persons Transactions,” “Executive Officers” and “Executive Compensation,” in our Definitive Proxy Statement on Schedule 14A for our 2023 Annual Meeting of Stockholders filed with the SEC on June 29, 2023; |
| •· | | our Quarterly ReportsReport on Form 10-Q for the quartersquarter ended March 31, 2017 and June 30, 20172023, filed with the SEC on May 11, 2017 and August 10, 2017, respectively;15, 2023; |
| · | | |
| • | | our amended and restated Proxy Statement on Amendment No. 1 to Schedule 14A filed with the SEC on May 3, 2017 to the extent incorporated by reference in Part III of the Form 10-K; |
| | | |
| • | | our Current Reports on Form 8-K, filed with the SEC on January 10, 2023, March 1, 2023, March 27, 2023, May 18, 2023, June 23, 2017, July 10, 20179, 2023 and October 20, 2017, June 29, 2023, in each case only to the extent filed and not furnished; and |
| · | | |
| • | | the description of our common stock Common Stock contained in our registration statement on Form 8-A (File No. 001-34703) filed under the Exchange Act on April 19, 2010, including any amendment or reports filed for the purpose of updating such descriptions. |
Any statement contained in a document incorporated or deemed to be incorporated by reference intoin this prospectus will be deemed to be modified, superseded or supersededreplaced for purposes of this prospectus to the extent that a statement contained in this prospectus modifies, supersedes or any other subsequently filed document that is deemed to be incorporatedreplaces such statement.
We also incorporate by reference into this prospectus modifiesany future filings made by us with the SEC under Section 13(a), 13(c), 14 or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide each person to whom a prospectus is delivered a copy of all15(d) of the
Exchange Act, except for information
that has been“furnished” under Items 2.02, 7.01 or 9.01 on Form 8-K or other information “furnished” to the SEC which is not deemed filed and not incorporated
by reference in this prospectus,
but not delivered withuntil the
prospectus. You may obtain copiestermination of
these filings, at no cost, through the
“Investor Relations” sectionoffering of
our website (www.alimerasciences.com) and yousecurities described in the applicable prospectus supplement.You may request a copy of these filings, (other than an exhibit to any filing unless we have specifically incorporated that exhibit by reference into the filing), at no cost, by writing or telephoning us at the following address:
6120 Windward Parkway,6310 Town Square, Suite 290
InformationCopies of these filings are also available, without charge, on or that can be accessed through,the SEC’s website at www.sec.gov and on our website is not incorporated into this prospectus or other securities filings andat www.alimerasciences.com as soon as reasonably practicable after they are filed electronically with the SEC. The information contained on our website is not a part of these filings.this prospectus.
$25,000,000
Common Stock
Prospectus
H.C. Wainwright & Co.
, 2017
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution
The following table sets forth an itemizationestimate of all estimatedthe fees and expenses in connection withrelating to the issuance and distribution of the securities being registered.
|
| | | | | |
| | | | | |
| | | Amount to be | |
| | | Paid by Registrant | |
| SEC Registration Fee | | $ | 12,450 | |
| Legal Fees and Expenses | | | * | |
| Accounting Fees and Expenses | | | * | |
| Printing and Engraving Fees | | | * | |
| Blue Sky Fees and Expenses | | | * | |
| Transfer Agent and Registrar Fees | | | * | |
| Miscellaneous Expenses | | | * | |
| Total | | | * | |
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, are estimated: | | | | | |
| SEC registration fee | $ | 14,751.93 | | |
* | Legal fees and expenses | The amount of securities$ | 25,000.00 | | |
| Accounting fees and number of offerings are indeterminable and the expenses cannot be estimated at this time. | $ | 40,000.00 | | |
| Miscellaneous | $ | – | | |
| Total | $ | 79,751.93 | | |
Item 15.Indemnification of DirectorsOfficers and OfficersDirectors.
The Delaware General Corporation Law and the registrant’s certificate of incorporation and bylaws provide for indemnification of the registrant’s directors and officers for liabilities and expenses that they may incur in such capacities. In general, directors and officers are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in,We have entered or not opposed to, the best interests of the registrant, and with respect to any criminal action or proceeding, actions that the indemnitee had no reasonable cause to believe were unlawful.
The registrant has also enteredwill enter into
identificationindemnification agreements with
itseach of our directors and executive officers.
These identificationThe agreements
generally requireprovide that
the registrant pay, on behalfwe will indemnify each of
eachour directors and executive officers against any and all expenses incurred by that director
andor executive officer
party thereto, all amounts that he or she is or becomes legally obligated to pay because of any claim or claims made against him or her because of any act or omission which he or she commits or suffers while acting in his or her capacity as the registrant’s director and/or officer and because of his
status as one of our directors or
her beingexecutive officers, to the fullest extent permitted by Delaware law, our restated certificate of incorporation (the “Certificate of Incorporation”) and our amended and restated bylaws (the “Bylaws”). In addition, the agreements provide that, to the fullest extent permitted by Delaware law, but subject to various exceptions, we will advance all expenses incurred by our directors in connection with a legal proceeding.Our Certificate of Incorporation and Bylaws contain provisions relating to the limitation of liability and indemnification of directors. The Certificate of Incorporation provides that our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, and/except for liability:
| · | | for any breach of the director’s duty of loyalty to us or our stockholders; |
| · | | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| · | | in respect of unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or |
| · | | for any transaction from which the director derives any improper personal benefit. |
Our Certificate of Incorporation also provides that if Delaware law is amended in the future to authorize corporate action further eliminating or officer. Underlimiting the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Delaware law. The foregoing provisions of the Certificate of Incorporation are not intended to limit the liability of directors or officers for any violation of applicable federal securities laws. As permitted by Section 145 of the Delaware General Corporation Law, absent an identification agreementour Certificate of Incorporation provides that we may indemnify our directors to the fullest extent permitted by Delaware law and the Certificate of Incorporation provisions relating to indemnity may not be retroactively repealed or a provision in a corporation’s bylaws or certificatemodified so as to adversely affect the protection of incorporation,our directors.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, our Bylaws authorize us (a) to enter into indemnification of a director or officer is discretionary rather than mandatory (except in the case of a proceeding in which a director or officer is successful on the merits).
The registrant currently maintains aagreements with our directors and executive officers and (b) to purchase directors’ and officers’ liability insurance, policy.
which we currently maintain to cover our directors and executive officers.Also see “Undertakings.”
Item 16. Exhibits.
The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference. | Exhibit
Number | | | Description of Document | |
| 3.1 | | | Restated Certificate of Incorporation of Registrant, as amended on various dates (filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K, as filed on March 2, 2020, and incorporated herein by reference) | |
| 3.2 | | | Amended and Restated Bylaws of the Registrant, as amended (filed as Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K, as filed on March 2, 2020, and incorporated herein by reference) | |
| 3.3 | | | Certificate of Designation of Series B Convertible Preferred Stock (filed as Exhibit 3.1 to the Registrant’s Form 8-K, as filed on March 27, 2023, and incorporated herein by reference) | |
| 3.4 | | | Certificate of Amendment to Certificate of Designation of Series B Convertible Preferred Stock (filed as Exhibit 3.1 to the Registrant’s Form 8-K, as filed on May 18, 2023, and incorporated herein by reference) | |
| 4.1 | | | Description of Securities (filed as Exhibit 4.2 to the Registrant’s Form 10-K, as filed on March 23, 2022, and incorporated herein by reference) | |
| 4.2 | | | Securities Purchase Agreement, dated March 24, 2023, by and among Alimera Sciences, Inc. and the purchasers party thereto (filed as Exhibit 10.1 to the Registrant’s Form 8-K, as filed on March 27, 2023, and incorporated herein by reference) | |
| 4.3 | | | Joinder and Amendment to Securities Purchase Agreement, dated May 17, 2023, by and among Alimera Sciences, Inc. and the purchasers party thereto (filed as Exhibit 10.2 to the Registrant's Form 8-K, as filed on May 18, 2023, and incorporated herein by reference) | |
| 4.4 | | | Form of Warrant to Purchase Shares of Common Stock (filed as Exhibit 4.1 to the Registrant’s Form 8-K, as filed on March 27, 2023, and incorporated herein by reference) | |
| 4.5 | | | Registration Rights Agreement, dated March 2023, by and among Alimera Sciences, Inc. and the purchasers party thereto (filed as Exhibit 10.2 to the Registrant’s Form 8-K, as filed on March 27, 2023, and incorporated herein by reference) | |
| 4.6 | | | Share Purchase Agreement by and between Ocumension Therapeutics and Alimera Sciences, Inc., dated as of April 14, 2021 (filed as Exhibit 10.1 to the Registrant’s Form 8-K, as filed on April 14, 2021 and incorporated herein by reference) | |
| 5.1 | | | Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP (filed herewith) | |
| 23.1 | | | Consent of Grant Thornton LLP (filed herewith) | |
| 23.2 | | | Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP (included in Exhibit 5.1) | |
| 24.1 | | | Power of Attorney (included in the signature page hereto) | |
| 107 | | | Filing Fee Table (filed herewith) | |
Item 17. Undertakings. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a further post-effective amendment to thethis registration statement:
(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act;
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 SECCommission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 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 the paragraphs (1)(i), that:
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this sectionand (1)(iii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SECCommission by the registrant pursuant to sectionSection 13 or sectionSection 15(d) of the Securities Exchange Act that are incorporated by reference in the registration statement; and
(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(C) Provided, further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 or Form S-3, and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB.
(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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(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)(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by sectionSection 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; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
date.(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) 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 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)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 offeringoffered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of the registration statement as of the time it was declared effective.
(d)(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant 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 of 1933 and will be governed by the final adjudication of such issue.
(e) The undersigned registrant hereby undertakes that
(i) for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act, shall be deemed to be part of this registration statement as of the time it was declared effective, and
(ii) for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
(f) 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 of 1939 (the “TIA”) in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the TIA.
SIGNATURES
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant 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 statementForm S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Alpharetta, State of Georgia, on October 20, 2017.
| | |
| | | | |
| | |
| By: | /s/ C. Daniel Myers | |
| By: | C. Daniel Myers | /s/ Richard S. Eiswirth, Jr. |
| | |
| | President and Chief Executive Officer | (Principal executive officer) |
POWER OF ATTORNEY
KNOW ALL MENPERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints C. Daniel Myers, Jeffrey Burris and Richard S. Eiswirth, Jr., Russell L. Skibsted and Christopher S. Visick, and each of them singly, as his or her true and lawful attorney-in-factattorneys-in-fact and agent,agents, with full power to act separately and full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments and supplements thereto (including post-effective amendments)amendments and registration statements filed pursuant to Rule 462(b)) to this registration statement, and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorney-in-factattorneys-in-fact and agentagents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-factattorneys-in-fact and agentagents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not revoke any powers of attorney previously executed by the undersigned. This Power of Attorney shall not be revoked by any subsequent power of attorney that the undersigned may execute, unless such subsequent power of attorney specifically provides that it revokes this Power of Attorney by referring to the date of the undersigned’s execution of this Power of Attorney. For the avoidance of doubt, whenever two or more powers of attorney granting the powers specified herein are valid, the agents appointed on each shall act separately unless otherwise specified.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| | | | |
Signature | | Title | | Date |
Signature | | Title | | Date |
| | | | |
/s/ C. Daniel Myers | | Chief Executive Officer and Director
(Principal Executive Officer)
| | October 20, 2017 |
C. Daniel Myers | | | | |
| | | | |
/s/ Richard S. Eiswirth, Jr. | | President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | October 20, 2017 |
Richard S. Eiswirth, Jr. | | President, Chief Executive Officer and Director (Principal Executive Officer) | | June 30, 2023 |
/s/ Russell L. Skibsted Russell L. Skibsted | | Chief Financial Officer and Senior Vice President (Principal Financial and Accounting Officer) | | June 30, 2023 |
/s/ James R. Largent.C. Daniel Myers C. Daniel Myers | | Chairman of the Board of Directors | | October 20, 2017June 30, 2023 |
James R. Largent/s/ Michael Kaseta Michael Kaseta | | Director | | June 30, 2023 |
/s/ Adam Morgan Adam Morgan | | Director | | June 30, 2023 |
/s/ Glen Bradley, Ph.D.Erin Parsons Erin Parsons | | Director | | October 20, 2017June 30, 2023 |
Glen Bradley, Ph.D. | | | | |
| | | | |
/s/ Mark J. Brooks | | Director | | October 20, 2017 |
Mark J. Brooks | | | | |
| | | | |
/s/ Brian K. Halak, Ph.D. | | Director | | October 20, 2017 |
Brian K. Halak, Ph.D. | | | | |
| | | | |
/s/ Garheng Kong, M.D., Ph.D. | | Director | | October 20, 2017 |
Garheng Kong, M.D., Ph.D. | | | | |
| | | | |
/s/ Peter J. Pizzo, III | | Director | | October 20, 2017 |
Peter J. Pizzo, III | | Director | | June 30, 2023 |
/s/ John Snisarenko John Snisarenko | | Director | | June 30, 2023 |
/s/ Calvin W. Roberts, M.D.Jason Werner Jason Werner | | Director | | October 20, 2017June 30, 2023 |
Calvin W. Roberts, M.D. | | |
| | |
EXHIBIT INDEX
|
| | |
| | |
Exhibit | | Description |
1.1** | | Form of Underwriting Agreement |
| | |
1.2 | | Sales Agreement dated as of October 20, 2017, between the Registrant and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 20, 2017). |
| | |
3.1 | | Restated Certificate of Incorporation of Registrant, as amended on various dates (filed as Exhibit 3.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (SEC File No. 333-162782), as filed on April 6, 2010, and incorporated herein by reference) |
| | |
3.2 | | Amended and Restated Bylaws of the Registrant, as amended (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, as filed on November 5, 2015 and incorporated herein by reference) |
| | |
3.3 | | Certificate of Designation of Series A Convertible Preferred Stock, thereto (filed as Exhibit 3.5 to the Registrant’s Current Report on Form 8-K, as filed on October 2, 2010, and incorporated herein by reference) |
| | |
3.4 | | Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (filed as Exhibit 3.6 to the Registrant’s Current Report on Form 8-K, as filed on December 15, 2014 and incorporated herein by reference) |
| | |
3.5 | | Certificate of Amendment to the Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.5 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, as filed on March 3, 2017 and incorporated herein by reference) |
| | |
4.2 | | Form of Registrant’s Common Stock Certificate (filed as Exhibit 4.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (SEC File No. 333-162782), as filed on April 6, 2010, and incorporated herein by reference) |
| | |
4.3 | | Second Amended and Restated Investor Rights Agreement, dated March 17, 2008, by and among the Registrant, certain stockholders and the investors listed on the signature pages thereto (filed as Exhibit 4.3 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (SEC File No. 333-162782), as filed on December 23, 2009, and incorporated herein by reference) |
| | |
4.5 | | Omnibus Amendment, dated October 25, 2009, by and among the Registrant, certain stockholders and the investors listed on the signature pages thereto (filed as Exhibit 4.5 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (SEC File No. 333-162782), as filed on December 23, 2009, and incorporated herein by reference) |
| | |
| | Form of Senior Indenture |
| | |
4.7** | | Certificate of designation of Preferred Stock |
| | |
4.8** | | Form of Warrant |
| | |
| | Form of Subordinated Indenture |
| | |
| | Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP |
| | |
12.1** | | Computation of Ratios of Earnings to Fixed Charges and Preference Dividends |
| | |
| | Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (included in Exhibit 5.1) |
| | |
| | Consent of Grant Thornton, LLP |
|
| | |
| | |
| | Power of Attorney (included on the signature page of this registration statement) |
| | |
25.1** | | Statement of Eligibility under the Trust Indenture Act of 1930, as amended, of the Trustee, as Trustee under the Indenture |
| | |
| | |
|
| | |
| | |
* | | Filed herewith. |
| | |
** | | To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities. |
