The information in this prospectus is not complete and may be changed. WeThese securities may not sell the securitiesbe sold until the Registration Statementregistration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not solicitingnor does it seek an offer to buy these securities in any statejurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 25, 2018
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
$250,000,000
____________________________
We may offer and sell up to $250,000,000 in the aggregate of the securities identified above from time to time in one or more series or issuancesofferings. This prospectus provides you with a general description of the securities.
Each time we offer and on terms thatsell securities, we will determine atprovide a supplement to this prospectus that contains specific information about the timeoffering and the amounts, prices and terms of the offering,securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any combination of our securities.
We may offer and sell the securities described in this prospectus upand any prospectus supplement to an aggregate maximum amount of $200,000,000.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” SECTION ON PAGE 5 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our common stock is listed on Thethe Nasdaq Global Select Market under the symbol “VTL.“IMUX.” On May 21, 2018,November 12, 2020 the last reported sale price of our common stock on The Nasdaq Global Market was $6.25 per share. There is currently no market for the other securities we may offer; however, we will provide information in any applicable prospectus supplement regarding any listing of securities other than shares of our common stock on any securities exchange.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2018.2020.
TABLE OF CONTENTS
Page
| ABOUT THIS PROSPECTUS | 1 |
| WHERE YOU CAN FIND MORE INFORMATION | 2 |
| INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE | |
| THE COMPANY | 4 |
| 5 | |
| 5 | |
| 9 | |
| 15 | |
| 18 | |
| 19 | |
| 22 | |
| 23 | |
| 23 |
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the United StatesU.S. Securities and Exchange Commission or the SEC,(the “SEC”), using a “shelf” registration process. Under thisBy using a shelf process,registration statement, we may sell securities from time to time sell any combination of the securities described in this prospectusand in one or more offerings up to an aggregatea total dollar amount of $200,000,000. In addition, the selling stockholders may from$250,000,000 of securities as described in this prospectus. Each time to time, afterthat we announce topline data for our VTL-308 clinical study,offer and sell up to an aggregate amount of 2,500,000 shares of our common stock in one or more offerings, subject to market conditions and prices, liquidity objectives and other investment considerations.
We have not authorized anyone to a particular offering. No person has been authorized to giveprovide you with any information or to make any representations in connection with this offering other than those contained or incorporated by reference in this prospectus, any accompanyingapplicable prospectus supplement andor any related issuer free writing prospectus in connection withprospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the offering described herein and therein, and, if given or made, suchreliability of, any other information or representations mustthat others may give you. We will not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus supplement nor any related issuer free writing prospectus shall constitutemake an offer to sell or a solicitation of an offer to buy offeredthese securities in any jurisdiction in which itwhere the offer or sale is unlawful for such person to make such an offering or solicitation. This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits.
When we refer to “we,” “we,“our,” “us” and “our” and similar terms or Vital Therapies refer to Vital Therapies, Inc.
This prospectus contains references to our trademarks and to trademarks belonging to other entities, which are protected under applicable intellectual property laws. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear without the ® or ™ symbols, but such references are not intended to indicate that we or their respective owners will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, reference. any such companies.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our website address is www.imux.com. The information on our website, however, is not, and should not be deemed to be, a part of this prospectus.
This summary doesprospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information you should consider before decidingin the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to investthe registration statement or documents incorporated by reference in our securities.the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should carefully readrefer to the actual documents for a more complete description of the relevant matters. You may obtain a copy of the registration statement through the SEC’s website, as provided above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC’s rules allow us to “incorporate by reference” information into this entireprospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any applicableaccompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC (but excluding any information in such documents that has been furnished to, rather than filed with, the SEC):
| · | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as filed with the SEC on March 16, 2020; |
| · | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, as filed with the SEC on May 8, 2020; our amended Quarterly Report on Form 10-Q/A for the quarter ended June 30, 2020, as filed with the SEC on August 3, 2020; and September 30, 2020, as filed with the SEC on November 6, 2020; |
| · | our Current Reports on Form 8-K filed with the SEC on January 8, 2020, April 20, 2020, April 22, 2020, April 27, 2020, May 13, 2020, May 19, 2020, June 12, 2020, June 19, 2020, July 7, 2020, August 3, 2020, August 7, 2020, October 20, 2020 and November 13, 2020; and |
| · | the description of our common stock contained in our registration statement on Form 8-A12B, filed with the SEC on November 15, 2013 (File No. 001-36201), and all amendments or reports filed for the purpose of updating such description. |
All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the termination of this offering, including eachall such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated herein or therein by reference before making an investment decision. Investors should carefully consider the information set forth under “Risk Factors” on page 6 ofin this prospectus andby writing or telephoning us at the following address:
Immunic, Inc.
Attn: Corporate Secretary
1200 Avenue of the Americas, Suite 200
New York, New York 10036
(332) 255-9818
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference to our annual report on Form 10-K and our quarterly reports on Form 10-Q.in this prospectus or any accompanying prospectus supplement.
THE COMPANY
We are a clinical-stage biotechnologybiopharmaceutical company focusingdeveloping a pipeline of selective oral immunology therapies aimed at treating chronic inflammatory and autoimmune diseases. Our main operations are in Gräfelfing near Munich, Germany. We currently have approximately 25 employees.
We are currently pursuing three development programs. These include the IMU-838 program, which is focused on the discovery, development and commercialization of cell-based therapies capableoral formulations of transformingsmall molecule inhibitors of dihydroorotate dehydrogenase (“DHODH”); the management of life-threatening conditions. Our initial product candidate, the ELAD® System, or ELAD, is a human-cell-based, bio-artificial liverIMU-935 program, which is focused on an inverse agonist of RORγt, an immune cell-specific isoform of retinoic acid receptor-related orphan nuclear receptor gamma (“RORγ”), and the IMU-856 program, which involves the development of a drug targeting the restoration of intestinal barrier function. These product candidates are being developed to improve ratesaddress diseases such as relapsing-remitting multiple sclerosis (“RRMS”), ulcerative colitis (“UC”), Crohn’s disease (“CD”), and psoriasis. In addition to these large markets, our products are also being developed to address certain rare diseases with high unmet medical needs, such as primary sclerosing cholangitis (“PSC”), and Guillain-Barré syndrome (“GBS”). We are also investigating IMU-838 as a potential treatment option for coronavirus disease 2019 (“COVID-19”).
Prior to April 12, 2019, we were a clinical-stage biotherapeutic company known as Vital Therapies, Inc. that had historically been focused on the development of survival among patients with acute forms of liver failure.
Our principal executive officescorporate headquarters are located at 150101200 Avenue of Science,the Americas, Suite 200, San Diego, California 92128.New York, New York 10036. We also have an office at Lochhamer Schlag 21, 82166 Gräfelfing, Germany. Our telephone number is (858) 673-6840. Our(332) 255-9818. We maintain a website address is
RISK FACTORS
Investment in any fiscal year. We refer to the Jumpstart Our Business Startups Act of 2012 herein as the “JOBS Act,” and references herein to “emerging growth company” are intended to have the meaning associated with it in the JOBS Act.
| Fiscal Year Ended December 31, | Three Months Ended March 31, | ||||||||||||||
| 2015 | 2016 | 2017 | 2018 | ||||||||||||
| Deficiency of earnings available to cover combined fixed charges and preference dividends | $ | (52,023 | ) | $ | (40,969 | ) | $ | (52,078 | ) | $ | (14,388 | ) | |||
USE OF PROCEEDS
We intend to use the net proceeds from the sale of securities offered by this prospectus for general corporate purposes, which may include working capital, capital expenditures and other corporate expenses. We may also use a portion of the net proceeds for the licensing or acquisition of complementary products, technologies or businesses. However, we have no present plans, agreements or commitments with respect to any potential acquisition, investment or license.
DESCRIPTION OF CAPITAL STOCK WE MAY OFFER
General
Our authorized capital stock consists of 130,000,000 shares of common stock, par value $0.0001 per share, and 20,000,000 shares of preferred stock, par value $0.0001 per share.
The following description of our common stock outstanding, held by approximately 69 stockholdersand preferred stock, together with the additional information included in any applicable prospectus supplements or related free writing prospectuses, summarizes the material terms and provisions of record, and no sharesthese types of securities, but it is not complete. For the complete terms of our common stock and preferred stock, outstanding. Our boardplease refer to our certificate of directors is authorized, without stockholder approval except as requiredincorporation and our bylaws that are incorporated by reference into the listing standardsregistration statement which includes this prospectus and, with respect to preferred stock, any certificate of The Nasdaq Global Market,designation that we may file with the SEC for a series of preferred stock we may designate, if any.
We will describe, in a prospectus supplement or related free writing prospectuses, the specific terms of any common stock or preferred stock we may offer pursuant to issue additionalthis prospectus. If indicated in a prospectus supplement, the terms of such common stock or preferred stock may differ from the terms described below.
Common Stock
As of November 13, 2020, there were 20,718,340 shares of our capital stock.
Subject to preferences that may be applicable to any then outstanding shares of preferred stock, holders of common stock are entitled to receive ratably such dividends as may be declared by the board of directors out of funds legally available therefor. In the event of a liquidation, dissolution or winding up of us, holders of the common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any then outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to our common stock. All outstanding shares of common stock are, and all shares of common stock to be issued under this prospectus will be, fully paid and non-assessable. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any of our outstanding preferred stock.
Listing
Our common stock is listed on the Nasdaq Global Select Market under the symbol “IMUX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC (“AST”). The transfer agent and registrar’s address is 6201 15th Avenue, Brooklyn, New York 11219.
Dividends
We have not declared any cash dividends on our common stock since inception and we do not anticipate paying any cash dividends on our common stock in the foreseeable future.
Preferred Stock
We are authorized to issue a total of 20,000,000 shares of preferred stock. As of November 13, 2020, there were no shares of preferred stock issued and outstanding.
Preferred stock may be issued from time to time, in one or more series, as authorized by the board of directors, without stockholder approval. The prospectus supplement relating to the preferred shares offered thereby will include specific terms of any preferred shares offered, including, if applicable:
| · | the title of the shares of preferred stock; |
| · | the number of shares of preferred stock offered, the liquidation preference per share and the offering price of the shares of preferred stock; |
| · | the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the shares of preferred stock; |
| · | whether the dividends on shares of preferred stock are cumulative or not and, if cumulative, the date from which dividends on the shares of preferred stock shall accumulate; |
| · | the procedures for any auction and remarketing, if any, for the shares of preferred stock; |
| · | the provision for a sinking fund, if any, for the shares of preferred stock; |
| · | the provision for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights of the shares of preferred stock; |
| · | any listing of the shares of preferred stock on any securities exchange; |
| · | the terms and conditions, if applicable, upon which the shares of preferred stock will be convertible into common shares, including the conversion price (or manner of calculation thereof); |
| · | discussion of federal income tax considerations applicable to the shares of preferred stock; |
| · | the relative ranking and preferences of the shares of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; |
| · | any limitations on issuance of any series or class of shares of preferred stock ranking senior to or on a parity with such series or class of shares of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; |
| · | any other specific terms, preferences, rights, limitations or restrictions of the shares of preferred stock; and |
| · | any voting rights of such preferred stock. |
The transfer agent and registrar for any series or class of preferred stock will be set forth in the applicable prospectus supplement.
Possible Anti-Takeover Effects of Delaware Law and our Charter Documents
Some provisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws could make the following transactions more difficult: an acquisition of us by means of a tender offer, an acquisition of us by means of a proxy contest or otherwise, or the removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interest, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law (the “DGCL”), an anti-takeover statute. In general, Section 203 of the DGCL prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years following the time the person became an interested stockholder, unless the business combination or the acquisition of shares that resulted in a stockholder becoming an interested stockholder is approved in a prescribed manner. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns (or within three years prior to the determination of interested stockholder status did own) 15% or more of a corporation’s voting stock. The existence of this provision would be expected to have an anti-takeover effect with respect to transactions not approved in advance by our board of directors, including discouraging attempts that might result in a premium over the market price for the shares of common stock held by our stockholders.
Undesignated Preferred Stock.
The ability of our board of directors, without action by the stockholders, to issue up to 20,000,000 shares of undesignated preferred stock with voting or other rights or preferences as designated by our board of directors could impede the success of any attempt to effect a change in control of us. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our company.
Requirements for Advance Notification of Stockholder Nominations and Proposals.
Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals to be brought before a stockholder meeting and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent.
Our amended and restated certificate of incorporation eliminates the right of stockholders to act by written consent without a meeting.
Staggered Board.
Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders. This system of electing and secondremoving directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.
Removal of Directors.
Our amended and restated bylaws docertificate of incorporation provides that no member of our board of directors may be removed from office by our stockholders except for cause and, in addition to any other vote required by law, upon the approval of the holders of at least two-thirds in voting power of the outstanding shares of stock entitled to vote in the election of directors.
Stockholders Not Entitled to Cumulative Voting.
Our amended and restated certificate of incorporation does not provide for cumulative voting rights. Becausepermit stockholders to cumulate their votes in the election of this absence of cumulative voting,directors. Accordingly, the holders of a majority of the outstanding shares of our common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they should so choose. Currently, certain stockholders affiliated with Muneer A. Satter,choose, other than any directors that holders of our preferred stock may be entitled to elect.
Authorized but Unissued Shares
Our authorized but unissued shares of common stock and preferred stock will be available for future issuance without stockholder approval. We may use additional shares for a membervariety of purposes, including future public offerings to raise additional capital, to fund acquisitions and as employee compensation. The existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors haveto render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the rightdue exercise of its fiduciary obligations, our board of directors were to nominate some membersdetermine that a takeover proposal is not in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to our board. See “Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation, Bylaws and Fourth Amended and Restated Investors’ Rights Agreement--
Director Liability
Our bylaws limit the extent to which our companydirectors are personally liable to us and our stockholders, to the fullest extent permitted by the DGCL. The inclusion of this provision in our bylaws may reduce the likelihood of derivative litigation against directors and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock. No shares of preferred stock are outstanding, and we have no present plan to issue any shares of preferred stock.
The provisions of Delaware law, our amended and restated certificate of incorporation and our second amended and restated bylaws and the Senior Preferred IRA contain provisions that could have the effect of delaying, deferring or discouraging another partyothers from acquiring control of us. These provisions, which are summarized below, are expected to discourage certain types of coercive takeover practicesattempting hostile takeovers and, inadequate takeover bids. These provisions areas a consequence, they may also designedinhibit temporary fluctuations in part to encourage anyone seeking to acquire control of us to first negotiate with our board of directors. We believe
DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
The following description, together with the additional information we include in any applicable prospectus supplements or special meetingfree writing prospectuses, summarizes the material terms and not by written consent;
We will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is a summary of selected provisionspart, and definitions of thesupplemental indentures and forms of debt securities to which any prospectus supplement may relate. Other specificcontaining the terms of the applicable indenture and debt securities being offered will be described infiled as exhibits to the applicableregistration statement of which this prospectus supplement. is a part or will be incorporated by reference to reports that we file with the SEC.
The summaryindentures will be qualified under the Trust Indenture Act of selected1939, as amended (the “Trust Indenture Act”). We use the term “trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the indenturessenior debt securities, the subordinated debt securities and the debt securities appearing below is not complete and isindentures are subject to, and qualified entirelyin their entirety by reference to, all of the provisions of the applicable indenture and certificates evidencingany supplemental indentures applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities. If any particularsecurities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the indenture or debt securities described in a prospectus supplement differ from anysecurities. Except as we may otherwise indicate, the terms of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. For additional information, you should look at the applicablesenior indenture and the subordinated indenture are identical.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in an officers’ certificate evidencing the applicable debt security that is filed as an exhibit to the registration statement that includes the prospectus.
| · | the title; |
| · | the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding; |
| · | any limit on the amount that may be issued; |
| · | whether or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be; |
| · | the maturity date; |
| · | whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
| · | the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | the terms of the subordination of any series of subordinated debt; |
| · | the place where payments will be payable; |
| · | restrictions on transfer, sale or other assignment, if any; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
| · | provisions for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
| · | provisions relating to modification of the terms of the security or the rights of the security holder; |
| · | whether the indenture will restrict our ability or the ability of our subsidiaries to: |
| · | incur additional indebtedness; |
| · | issue additional securities; |
| · | create liens; |
| · | pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries; |
| · | redeem capital stock; |
| · | place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
| · | make investments or other restricted payments; |
| · | sell, transfer or otherwise dispose of assets; |
| · | enter into sale-leaseback transactions; |
| · | engage in transactions with stockholders or affiliates; |
| · | issue or sell stock of our subsidiaries; or |
| · | effect a consolidation or merger; |
| · | whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
| · | information describing any book-entry features; |
| · | the applicability of the provisions in the indenture on discharge; |
| · | whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; |
| · | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
| · | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations. |
U.S. federal income tax considerationsconsequences applicable to debt securities sold at aan original issue discount will be described in the applicable prospectus supplement.
Conversion or Exchange and Transfer
We will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be transferredconvertible into or exchangedexchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will include provisions as to whether conversion or exchange is mandatory, at the officeoption of the security registrarholder or at our option. We may include provisions pursuant to which the officenumber of any transfer agent designated by us.
Consolidation, Merger or Sale
Unless we will not be required to:
Events of Default under the Indenture
Unless we provide otherwise in the event we have a change in control or in the event of a highly-leveraged transaction, whether or not such transaction results in a change in control.
| · | if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended; |
| · | if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable and the time for payment has not been extended; |
| · | if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| · | if specified events of bankruptcy, insolvency or reorganization occur. |
We will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities. If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding securities of that series may declare the principal amount and premium, if any, of the debt securities of that series, orby notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities of that series are
The holders of a majority in a prospectus supplement, ifprincipal amount of the outstanding debt securities of an affected series may waive any default or event of default described in clause (5) above shall occur,with respect to the series and its consequences, except defaults or events of default regarding payment of principal, amount and premium, if any, of allor interest, unless we have cured the debt securities of that series,default or if any debt securities of that series are original issue discount securities, such other amount as may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid interest thereon, if any, will automatically become immediately due and payable. Any payment by us on the subordinated debt securities following any such acceleration will be subject to the subordination provisions described below under “Subordinated Debt Securities.”
Subject to the failure to comply with the reporting obligations in accordance with the preceding paragraph, we must notify all holders of debt securities and the trustee and paying agent of such election prior to the close of business on the first business day following the date on which such event of default occurs. Upon our failure to timely give such notice or pay the additional interest, the debt securities will be immediately subject to acceleration as provided above.
| · | the direction so given by the holders is not in conflict with any law or the applicable indenture; and |
| · | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might subject it to personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
The indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder of the relevant series of debt securities, or that would subject the trustee to personal liability. Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking such action.
A holder of the debt securities of any series will not have anythe right to institute anya proceeding under the indentures or for the appointment ofto appoint a receiver or a trustee, or for anyto seek other remedy under the indentures, unless:
| the holder has |
| the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and such holders have offered reasonable indemnity to the trustee or security satisfactory to |
| the trustee |
These limitations do not apply to enforcea proceeding instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each holder notice of the default within 45 days after it occurs, unless such default has been cured. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security on or after the due date or to enforce the right, if any, to convert any debt security (if the debt security is convertible) without following the procedures listedcertain other defaults specified in (1) through (3) above.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders with respect to the following specific matters:
| · | to fix any ambiguity, defect or inconsistency in the indenture; |
| · | to comply with the provisions described above under “-Consolidation, Merger or Sale”; |
| · | to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
| · | to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, as set forth in such indenture; |
| · | to provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided above under “-General,” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
| · | to evidence and provide for the acceptance of appointment hereunder by a successor trustee; |
| · | to provide for uncertificated debt securities in addition to or in place of certificated debt securities and to make all appropriate changes for such purpose; |
| · | to add such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the indenture; or |
| · | to change anything that does not materially adversely affect the interests of any holder of debt securities of any series in any material respect; provided that any amendment made solely to conform the provisions of the indenture to the corresponding description of the debt securities contained in the applicable prospectus or prospectus supplement shall be deemed not to adversely affect the interests of the holders of such debt securities; provided further, that in connection with any such amendment we will provide the trustee with an officers’ certificate certifying that such amendment will not adversely affect the rights or interests of the holders of such debt securities. |
In addition, under the indentureindentures, the rights of holders of a series of debt securities may be changed by us and if so, specifying all known defaults.
| · | extending the fixed maturity of the series of debt securities; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any debt securities; |
| · | reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver; |
| · | changing any of our obligations to pay additional amounts; |
| · | reducing the amount of principal of an original issue discount security or any other note payable upon acceleration of the maturity thereof; |
| · | changing the currency in which any note or any premium or interest is payable; |
| · | impairing the right to enforce any payment on or with respect to any note; |
| · | adversely changing the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, such note, if applicable; |
| · | in the case of the subordinated indenture, modifying the subordination provisions in a manner adverse to the holders of the subordinated debt securities; |
| · | if the debt securities are secured, changing the terms and conditions pursuant to which the debt securities are secured in a manner adverse to the holders of the secured debt securities; |
| · | reducing the requirements contained in the applicable indenture for quorum or voting; |
| · | changing any of our obligations to maintain an office or agency in the places and for the purposes required by the indentures; or |
| · | modifying any of the above provisions set forth in this paragraph. |
Discharge
Each indenture provides that, subject to such provision or (B) shall become effective only when there is no such security outstanding;
| · | register the transfer or exchange of debt securities of the series; |
| · | replace stolen, lost or mutilated debt securities of the series; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | recover excess money held by the trustee; |
| · | compensate and indemnify the trustee; and |
| · | appoint any successor trustee. |
In order to exercise our rights to be discharged, we make this election,must deposit with the holderstrustee money or government obligations sufficient to pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be entitled torequired to:
| · | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
| · | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the benefits ofTrustee
The trustee, other than during the indenture, except for the rights of holders to receive payments on debt securities or the registration of transferoccurrence and exchange of debt securities and replacement of lost, stolen or mutilated debt securities.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest payment.
We will pay in full the principal interestof and any premium and interest on the debt securities. This amount may be made in cash and/or U.S. government obligations or,securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the case of debt securities denominated in a currency other than U.S. dollars, cashapplicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the currency in which such series of securities is denominated and/or foreign government obligations. As a condition to eitherapplicable prospectus supplement, we will designate the corporate trust office of the above elections,trustee in the City of New York as our sole paying agent for debt securities denominated in U.S. dollars, we must deliver to the trustee an opinion of counsel that the holders of the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the action.
All money we pay to a paying agent or the European Uniontrustee for the payment of which obligations the full faith and creditprincipal of such members is pledged, which in each case are not callable or redeemableany premium or interest on any debt securities that remains unclaimed at the optionend of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the issuer thereof; or
Governing Law
The indentures and the debt securities will be governed by and construed under,in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ranking Debt Securities
The following provisions will be applicable with respect to each series of subordinated debt securities, unless otherwise stated in the prospectus supplement relating to that series of subordinated debt securities.
The senior debt securities will be unsecured and will rank equally in right of payment to all of our other senior unsecured debt. The senior indenture does not limit the prior paymentamount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS WE MAY OFFER
We may issue warrants to purchase debt securities, preferred stock, common stock or any combination of the foregoing. We may issue warrants independently or together with any other securities we offer under a prospectus supplement. The warrants may be attached to or separate from the securities. We will issue each series of warrants under a separate warrant agreement to be entered into between a warrant agent and us. The warrant agent will act solely as our agent in fullconnection with the warrants and will not have any obligations or relationship of agency or trust for or with holders or beneficial owners of warrants. The following outlines some of the general terms and provisions of the warrants that we may issue from time to time. When we issue warrants, we will provide the specific terms of the warrants and the applicable warrant agreement in casha prospectus supplement and any related free writing prospectuses and such terms may differ from those described below. To the extent the information contained in the prospectus supplement differs or free writing prospectuses from this summary description, you should rely on the information in the prospectus supplement or free writing prospectuses.
The following description, and any description of the warrants included in a prospectus supplement, may not be complete and is subject to and qualified in its entirety by reference to the terms and provisions of the applicable warrant agreement.
Equity Warrants
We will describe in the applicable prospectus supplement and any related free writing prospectuses the terms of the preferred stock warrants or common stock warrants being offered, the warrant agreement relating to the preferred stock warrants or common stock warrants and the warrant certificates representing the preferred stock warrants or common stock warrants, including, as applicable:
| · | the title of the warrants; |
| · | the securities for which the warrants are exercisable; |
| · | the price or prices at which the warrants will be issued; |
| · | if applicable, the number of warrants issued with each share of preferred stock or share of common stock; |
| · | if applicable, the date on and after which the warrants and the related preferred stock or common stock will be separately transferable; |
| · | the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
| · | the maximum or minimum number of warrants which may be exercised at any time; |
| · | information with respect to book-entry procedures, if any; |
| · | a discussion of the material U.S. federal income tax considerations applicable to exercise of the warrants; and |
| · | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Unless otherwise provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, holders of equity warrants will not be entitled, by virtue of being such holders, to vote, consent, receive dividends, receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other payment satisfactorymatter, or to exercise any rights whatsoever as stockholders.
Except as provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, the exercise price payable and the number of shares of common stock or preferred stock purchasable upon the exercise of each warrant will be subject to adjustment in certain events, including the issuance of a stock dividend to holders of senior debtcommon stock or preferred stock or a stock split, reverse stock split, combination, subdivision or reclassification of common stock or preferred stock. In lieu of adjusting the number of shares of common stock or preferred stock purchasable upon exercise of each warrant, we may elect to adjust the number of warrants. Unless otherwise provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, no adjustments in the number of shares purchasable upon exercise of the warrants will be required until all senior debt.
Debt Warrants
We will describe in the applicable prospectus supplement and any related free writing prospectuses the terms of the debt warrants being offered, the warrant agreement relating to the debt warrants and the debt warrant certificates representing the debt warrants, including, as applicable:
| · | the title of the debt warrants; |
| · | the aggregate number of the debt warrants; |
| · | the price or prices at which the debt warrants will be issued; |
| · | the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants, and the procedures and conditions relating to the exercise of the debt warrants; |
| · | the designation and terms of any related debt securities with which the debt warrants are issued, and the number of the debt warrants issued with each security; |
| · | the date, if any, on and after which the debt warrants and the related debt securities will be separately transferable; |
| · | the principal amount of debt securities purchasable upon exercise of each debt warrant, and the price at which the principal amount of the debt securities may be purchased upon exercise; |
| · | the date on which the right to exercise the debt warrants will commence, and the date on which the right will expire; |
| · | the maximum or minimum number of the debt warrants that may be exercised at any time; |
| · | information with respect to book-entry procedures, if any; |
| · | changes to or adjustments in the exercise price of the debt warrants; |
| · | a discussion of the material U.S. federal income tax considerations applicable to the exercise of the debt warrants; and |
| · | any other terms of the debt warrants and terms, procedures and limitations relating to the exercise of the debt warrants. |
As may be permitted under the warrant agreement, holders may exchange debt warrant certificates for new debt warrant certificates of different denominations, and may exercise debt warrants at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement and any related free writing prospectuses. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the securities purchasable upon the exercise and will not be entitled to payments of principal, premium or interest on the securities purchasable upon the exercise of debt warrants.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase for cash at the exercise price provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses the principal amount of debt securities or shares of preferred stock or shares of common stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date provided in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses. After the close of business on the expiration date, unexercised warrants will be void.
Holders may exercise warrants as described in the applicable warrant agreement and corresponding prospectus supplement or any free writing prospectuses relating to the warrants being offered. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable warrant agreement and corresponding prospectus supplement or any related free writing prospectuses, we will, as soon as practicable, forward the debt securities, shares of preferred stock or shares of common stock purchasable upon the exercise of the warrant. If less than all of the warrants represented by the warrant certificate are exercised, we will issue a new warrant certificate for the remaining warrants.
DESCRIPTION OF UNITS WE MAY OFFER
The following description, together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series because of an event of default with respect tounits in more detail in the subordinated debt securities of that series, holdersapplicable prospectus supplement. The terms of any senior debt would be entitled to payment in full in cash or other payment satisfactory to holders of senior debt of all senior debt before the holders of subordinated debt securities are entitled to receive any payment or distribution.
We will file as exhibits to the moneyregistration statement of which this prospectus is a part, or government obligations were deposited into trust.
General
We may issue units comprised of one or more shares of the other classescommon stock, shares of preferred stock, debt securities described in this prospectusand warrants in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
| · | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| · | any provisions of the governing unit agreement that differ from those described below; and |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in this section, as well as those described under “Description of Capital Stock We May Offer,” “Description of Debt Securities We May Offer” and “Description of Warrants We May Offer” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in the event of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so registered, despite any notice to the contrary.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary (“DTC”), and registered in the name of Cede & Co., the partnership nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
| · | a limited-purpose trust company organized under the New York Banking Law; |
| · | a “banking organization” within the meaning of the New York Banking Law; |
| · | a member of the Federal Reserve System; |
| · | a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
| · | a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be issued under unit agreementsrequested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be entered into between usthe beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and a unit agent, as detailedmay transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement relating tofor the units being offered. The prospectus supplement will describe:
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities comprisingof a particular series are being redeemed, DTC’s practice is to determine by lot the units mayamount of the interest of each direct participant in the securities of such series to be heldredeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or transferred separately;
So long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless otherwise provided in the description of the termsapplicable securities herein or in the applicable prospectus supplement, we will have the option of any unit agreement governingmaking payments by check mailed to the units;
Redemption proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the payment, settlement,account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
| · | DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be; |
| · | we determine, in our sole discretion, not to have such securities represented by one or more global securities; or |
| · | an event of default has occurred and is continuing with respect to such series of securities, |
we will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank S.A./N.V., as operator of the units;
Clearstream and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments, deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as the case may be, will, if applicable;the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the global securities through DTC, and
Due to time zone differences, the units if issuedsecurities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a separateresult of sales of interests in a global security by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be issued in fully registered or global form.
Other
The information in this section titled “Whereof this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities and none of us takes any responsibility for their activities. You Can Find More Information.”
PLAN OF DISTRIBUTION
We may sell the securities from time to time after we announce topline data for our VTL-308 clinical study, by the stockholders named herein, who we referpursuant to in this prospectus as the “selling
| Name | Shares Beneficially Owned Prior to the Date of this Prospectus | Shares Subject to Sale Pursuant to this Prospectus | Shares Beneficially Owned After Sale of All Shares Subject to Sale Pursuant to this Prospectus | |||||||||
| Number of Shares | Percent | Number of Shares | Percent | |||||||||
Satter Medical Technology Partners, L.P. | 4,250,000 (1)(3) | 10.0 | 933,469 | 3,316,531 | 7.8 | |||||||
Trusts and Other Entities Affiliated with Muneer A. Satter | 7,347,719 (2)(3) | 17.3 | 1,566,531 | 5,781,188 | 13.6 | |||||||
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to such prevailing market prices; or |
| · | at negotiated prices. |
Each time that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including negotiated transactions. Underwriters may sellthe offering price of the securities in orderand the proceeds to facilitate transactions in any of our other securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwritersus, if applicable.
Offers to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all thebeing offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers. The prospectus supplement will include the names of the principal underwriters the respective amount of securities underwritten, the nature of the obligation of the underwriters to take the securities and the nature of any material relationship between an underwriter and us.
If a dealer is utilized in the sale of the securities being offered by this prospectus, the securities and will describe any commissions payablebe sold to the agentdealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by usthe dealer at the time of resale.
If an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we or the selling stockholders.purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in thea prospectus supplement, anyan agent will agree to use its reasonablebe acting on a best efforts to solicit purchases for the period of its appointment.
Any compensation paid to underwriters, dealers or others whoagents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act withof 1933, as amended (the “Securities Act”), and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to any sale ofreimburse those securities. The terms of any such salespersons for certain expenses.
Any common stock will be describedlisted on the Nasdaq Global Select Market, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the prospectus supplement.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4). To under the extent thatSecurities Act. In addition, we or the selling stockholders make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other at-the-market offering arrangement between us or the selling stockholders, on one hand, and the underwriters or agents, on the other. If we engage in at-the-market sales pursuant to any such agreement, we or the selling stockholders will sell our securities through one or more underwriters or agents, which may act on an agency basisenter into derivative transactions with third parties, or a principal basis. During the term of any such agreement, we or the selling stockholders may sell securities on a daily basisnot covered by this prospectus to third parties in exchange transactions or otherwise as we agree with the underwriters or agents. Any such agreement will provide that any securities sold will be sold at prices related to the then prevailing market prices for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined as of the date of this prospectus. Pursuant to the terms of the agreement, we or the selling stockholders may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our common stock or other securities. The terms of any such agreement will be set forth in more detail in the applicable prospectus or prospectus supplement.
The specific terms and conditions at which such securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant information to assistof any lock-up provisions in making a bid, such as the clearing spread at which therespect of any given offering wouldwill be sold, based on the bids submitted, and whether a bidder’s individual bids would be accepted, prorated or rejected. For example,described in the case of a debt security, the clearing spread could be indicated as a number of “basis points” above an index treasury note. Of course, many pricing methods can and may also be used.
The final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole or in part on the results of the Internet or other electronic bidding process or auction.
LEGAL MATTERS
The validity of the securities being offered by this prospectushereby will be passed uponon by Wilson Sonsini Goodrich & Rosati, Professional Corporation, San Diego, California. Additional legal matters may be passed upon for us or anyDentons US LLP. Any underwriters, dealers or agents will also be advised about the validity of the securities and other legal matters by their own counsel, that wewhich will namebe named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Immunic, Inc. as of December 31, 2019 and 2018 and for each of the two years in the period ended December 31, 2019 incorporated in this prospectus by reference to theour Annual Report on Form 10-K for the year ended December 31, 20172019, have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s requirement for additional financing to fund future operations as described in Note 1 to the consolidated financial statements) of PricewaterhouseCoopersBaker Tilly US, LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
| Assumed public offering price per share | $ | 6.25 | ||||
| Historical net tangible book value per share | $ | 0.88 | ||||
| Increase per share attributable to new investors | 0.95 | |||||
| As adjusted net tangible book value per share after this offering | 1.83 | |||||
| Dilution per share to new investors | $ | 4.42 | ||||
PART II
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimatedall costs and expenses, (other than the actual SEC registration fee), other than underwriting discounts and commissions, payable by the registrantus in connection with the sale of the securities being registered.
| Securities and Exchange Commission registration fee | $ | 13,759 | |
| Accounting fees and expenses | 6,000 | ||
| Legal fees and expenses | 135,500 | ||
| Transfer agent fees and expenses | 15,000 | ||
| Miscellaneous | 5,241 | ||
| Total | $ | 175,500 | |
| SEC Registration Fee | $ | 27,275 | |
| FINRA filing fee | ** | ||
| The Nasdaq Global Select Market supplemental listing fee | ** | ||
| Printing expenses | ** | ||
| Legal fees and expenses | ** | ||
| Accounting fees and expenses | ** | ||
| Blue Sky, qualification fees and expenses | ** | ||
| Transfer agent fees and expenses | ** | ||
| Trustee fees and expenses | ** | ||
| Warrant agent fees and expenses | ** | ||
| Miscellaneous | ** | ||
| Total | ** |
** The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
We are incorporated under the maximum extent permitted by the General Corporation Lawlaws of the Statestate of Delaware, the personal liabilityDelaware. Section 145(a) of the Registrant’s directors and executive officers for monetary damages for breach of their fiduciary duties as directors or officers. The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provideDGCL provides that the Registrant must indemnify its directors and executive officers and may indemnify its employees and other agents to the fullest extent permitted by the General Corporation Law of the State of Delaware.
Section 145(b) of the DGCL provides that in the case of ana Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may generallyshall be made in respect of any claim, issue or matter as to which such person isshall have been adjudged to be liable to the corporation.
Further subsections of DGCL Section 145 provide that:
(1) to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith;
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(2) the indemnification and advancement of expenses provided for in its amendedpursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and restated certificate of incorporation
(3) the corporation shall have the power to purchase and amended and restated bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future.
Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify our officers and directors under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Our bylaws provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, we will indemnify any person (and the estate of any person) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of our company or is or was serving at our request as a director or officer of another corporation or enterprise. We may, in our discretion, similarly indemnify its employees and agents.
We have entered into indemnification agreements with our officers and directors.
Our certificate of incorporation relieves our directors from monetary damages to us or our stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for acts or omissions not in good faith, or which involve intentional misconduct or a knowing violation of law, (iii) for willful or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends, or (iv) for any transactions from which the director derived an improper personal benefit.
We currently maintain an insurance policy which, within the limits and subject to the terms and conditions thereof, covers certain exclusions.
Item 16. Exhibits
See the exhibit index that immediately precedes such exhibitsExhibit Index attached to this registration statement and is incorporated herein by reference.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(ii) of this section(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SECCommission by the registrant pursuant to Sectionsection 13 or Sectionsection 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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 to any purchaser: (i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, |
(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, 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.
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(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 Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrantregistrants pursuant to the foregoing provisions described in Item 15, or otherwise, the registrant hasregistrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrantregistrants of expenses incurred or paid by a director, officer or controlling person of theany 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, theeach appropriate 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.
(d) The undersigned registrantregistrants hereby undertakesundertake to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Sectionsection 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SECCommission under Sectionsection 305(b)(2) of the Trust Indenture Act.
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| Incorporated by Reference | |||||
Exhibit Number | Exhibit Title | Form | File No. | Exhibit | Filing Date |
| 1.1* | Form of Underwriting Agreement. | ||||
| 1.2 | S-3 | 333-204097 | 1.2 | May 12, 2015 | |
| 3.1 | S-1/A | 333-191711 | 3.2 | November 6, 2013 | |
| 3.2 | S-1/A | 333-191711 | 3.4 | November 6, 2013 | |
| 4.1 | S-1/A | 333-191711 | 4.1 | November 6, 2013 | |
| 4.2 | S-1 | 333-191711 | 4.2 | October 11, 2013 | |
| 4.3 | S-1 | 333-191711 | 4.3 | October 11, 2013 | |
| 4.4 | S-1 | 333-191711 | 4.4 | October 11, 2013 | |
| 4.5* | Form of Certificate of Designation. | ||||
| 4.6* | Form of Preferred Stock Certificate. | ||||
| 4.7 | S-3 | 333-204097 | 4.7 | May 12, 2015 | |
| 4.8* | Form of Senior Note. | ||||
| 4.9 | S-3 | 333-204097 | 4.9 | May 12, 2015 | |
| 4.10* | Form of Subordinated Note. | ||||
| 4.11* | Form of Warrant. | ||||
| 4.12* | Form of Unit Agreement. | ||||
| 5.1** | |||||
| 12.1** | |||||
| 23.1** | |||||
| 23.2** | |||||
| 24.1** | |||||
EXHIBIT INDEX
| Exhibit Number | Exhibit |
| 1.1* | Form of Underwriting Agreement |
| 3.1 | Amended and Restated Certificate of Incorporation (incorporated by reference to the Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 17, 2019) |
| 3.2 | Third Amended and Restated Bylaws (incorporated by reference to the Exhibit 3.2 of the Company’s Current Report on Form 8-K filed with the SEC on July 17, 2019) |
| 4.1+ | Form of Indenture |
| 4.2* | Form of Warrant |
| 4.3* | Form of Warrant Agreement |
| 4.4* | Form of Unit Agreement |
| 5.1+ | Opinion of Dentons US LLP |
| 23.1+ | Consent of Baker Tilly US, LLP |
| 23.3+ | Consent of Dentons US LLP (contained in Exhibit 5.1) |
| 24.1+ | Power of Attorney (included on signature page) |
| 25.l† | Form T-l Statement of Eligibility and Qualification of the Trustee under the Indenture with respect to the debt securities |
| + Filed herewith. | |
| * To be filed by amendment hereto or pursuant to a Current Report on Form 8-K to be incorporated herein by reference. | |
| † To be filed by amendment or | |
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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 statement on Form S-3Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego,New York, State of California,New York, on May 25, 2018.
| IMMUNIC, INC. | ||
| By: | /s/ Daniel Vitt | |
| Name: | Daniel Vitt | |
| Title: | President and Chief Executive Officer | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Russell J. CoxDaniel Vitt and Michael V. Swanson,Duane Nash, and each of them acting individually, as his or her true and lawful attorneys-in-factattorneys- in-fact and agents,agent, with full power of each to act alone, with full powers of substitution and re-substitution,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 to this registration statement on Form S-3(including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act), and to file the same with all exhibits thereto, and allother documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone,and 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all that said attorneys-in-fact and agents, or his, herany of them or their substitutes,substitute or resubstitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons and in the capacities and on the datesdate indicated.
| Signature | Title | Date | ||
| /s/ | ||||
| ( | ||||
| /s/ | ||||
| /s/ | ||||
| (principal financial and accounting officer) | ||||
| /s/ | Director | |||
| /s/ | Director | |||
| /s/ | Director | |||
| November 13, 2020 | ||||
| /s/ | Director | |||
| /s/ | Director | |||
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