you may not sellSELLING STOCKHOLDERS
The shares of ourcommon stock whether received upon exercise of an option, settlement of a restricted stock unit award or otherwise, before such information is disclosedbeing offered by the selling stockholder are those issuable to the public.
Generally, “inside information” is information that is both material (very important) and non-public (not disclosed through press releases, newspaper articles, or otherwise to the public that buys and sells securities). Material information may include projections, estimates, and proposals. Whether information is material will depend on the specific circumstances. A general test is whether dissemination of the information to the public would likely affect the market price of our stock or would likely be considered important by people who are considering whether to buy or sell our stock. Certainly, if the information makes you want to buy or sell, it would probably have the same effect on others.
If you are contemplating selling your shares and you think you might have inside information, you should discuss the matter with your supervisor or your employer’s in house legal counsel. If, after this discussion, it is determined that such information is inside information, you must wait to sell your shares until after the information has been made public or the information is no longer inside information, or longer if otherwise required under applicable law.
25.
Do I have to pay a commission when I exercise my option or when I later sell my stock?
You generally pay no commission when you exercise your option unless you engage in a same day sale. When you sell your shares, generally you must use a broker, and you can expect to be charged a commission. We will not buy from you, sell on your behalf (other than in certain circumstances to cover applicable exercise price or tax withholding obligations), or assist you in selling stock that you have received under the Plan.
Corporate Transactions
26.
What happens to my award if there is a change in the Company’s capital structure?
If certain changes occur to the Company’s capitalization (e.g., a stock split, or a reverse stock split of our common stock), the Board will proportionately adjust the exercise price or purchase price (if applicable) and number and class of shares subject to your stock award.
27.
What happens to my award in the event of a corporate transaction?
Unless otherwise provided in your stock award agreement, your stock award will receive the following treatment, as applicable, as to all or any portion of your stock award in the event of a corporate transaction (as described below), contingent upon the closing or completion of the corporate transaction:
Stock Awards May be Assumed. Subject to applicable law, in the event of a corporate transaction, any surviving or acquiring corporation may assume or continue your stock award or substitute a similar award for your stock award.
Treatment. In the event of a corporate transaction, your vested stock award will terminate if not exercised prior to the occurrence of the corporate transaction. Any portion of your stock award that is unvested will be automatically forfeited without consideration.
Payment for Stock Awards Instead of Exercise. Notwithstanding the above treatment of your stock award in connection with a corporate transaction, in the event your stock award will terminate if not exercised prior to the occurrence of a corporate transaction, the Board may provide, in its sole discretion, that you may not exercise your stock award but will receive a payment, in such form the Board determines, equal in value, at the occurrence of the corporate transaction, to the excess, if any, of (A) the value of the property you would have receivedstockholder upon the exercise of your stock award (including, at the Board’s discretion, any unvested portion of your stock award), over (B)Purchase Warrant, upon the exercise price payable by youof the Exchange Warrant and the shares of common stock issued as a financing fee in August 2020 in connection with such exercise.
A “corporate transaction” occurs in the eventissuance of the consummation2024 Notes, or the Financing Fee Shares. For additional information regarding the Exchange Warrant, the Purchase Warrant and Financing Fee Shares, see “Prospectus Summary — Recent Developments” above. We are registering the shares of (a)common stock in order to permit the selling stockholder to offer the shares for resale from time to time.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by the selling stockholder. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock, the Exchange Warrant and the Purchase Warrant, as of May 15, 2023, assuming full exercise of the warrants held by the selling stockholder on that date.
In accordance with the terms of registration rights agreements with the selling stockholder, this prospectus generally covers the resale of that number of shares of common stock equal to the number of shares of common stock: (i) issued to the selling stockholder in respect of a salefee in connection with the issuance of the 2024 Notes, or the Financing Fee Shares and (ii) issuable upon exercise of the Purchase Warrant, and (iii) issuable upon exercise of the Exchange Warrant.
For purposes of this prospectus, “selling stockholder” includes the stockholder listed below and their permitted pledgees, donees, transferees, designees or successors-in-interest who may acquire securities through a pledge, gift, partnership distribution or other dispositionnon-sale related transfer from the selling stockholder. Our registration of the resale of the shares of common stock, including common stock issuable upon exercise of the Purchase Warrant and Exchange Warrant, does not necessarily mean that the selling stockholder will sell all or any of such common stock. The following table sets forth certain information as of May 15, 2023 concerning the shares of common stock that may be offered from time to time by the selling stockholder with this prospectus. The information is based on information provided by or on behalf of the selling stockholder.
Selling Stockholder information for each additional selling stockholder, if any, will be set forth by prospectus supplement to the extent required prior to the time of any offer or sale of such selling stockholder’s shares pursuant to this prospectus. Information about the selling stockholder may change over time. Any changed or new information given to us by the selling stockholder, including the identity of each selling stockholder and the number of shares registered on its behalf, will be set forth in supplements to this prospectus or amendments to the registration statement of which this prospectus is a part, if and when necessary.
| | | Shares Beneficially Owned After the Offering | | | Number of Shares Being Offered for Resale | | | Shares Beneficially Owned Prior to the Offering | |
Name and Address of Selling Stockholder | | | Shares | | | Percentage(1) | | | Shares(2) | | | Percentage(1) | |
PHC Holdings Corporation(3) | | | | | 86,892,237(4) | | | | | | 15.4 | | | | | | 86,892,237(4) | | | | | | — | | | | | | — | | |
*
Less than 1%
(1)
The percentage is based on 479,871,695 shares of common stock outstanding as of May 5, 2023, adjusted in accordance with Rule 13d-3 under the Exchange Act.
(2)
Assumes the sale of all or substantially allshares offered pursuant to this prospectus.
(3)
PHC Holdings Corporation, as the selling stockholder exercises voting and investment control over these shares. The address of the consolidated assetsselling stockholder is 2-38-5 Nishishimbashi, Minato-ku, Tokyo 105-8433 Japan.
(4)
Consists of (i) 2,941,176 shares of common stock held by the Companyselling stockholder and our subsidiaries; (b) a sale or other disposition(ii) 83,951,061 shares of at least 50%common stock issuable upon exercise of the Company’s outstanding securities; (c) a merger, consolidation, or similarwarrants.