As
filed with the Securities and Exchange Commission on February 10,
2021
Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
Cassava
Sciences, Inc.
(Exact
name of Registrant as specified in its charter)
|
Delaware |
|
91-1911336 |
|
(State
or other jurisdiction of
incorporation or
organization)
|
|
(I.R.S.
Employer
Identification
Number)
|
7801 N
Capital of Texas Highway, Suite 260
Austin,
TX 78731
(512)
501-2444
(Address, including
zip code, and telephone number, including area code, of
Registrant’s principal executive offices)
Remi
Barbier
President, Chief
Executive Officer and Chairman of the Board of
Directors
Cassava
Sciences, Inc.
7801 N
Capital of Texas Highway, Suite 260
Austin,
TX 78731
(512)
501-2444
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies
to:
Alfredo
B. D. Silva, Esq.
Morrison &
Foerster LLP
425
Market Street
San
Francisco, CA 94105
(415)
268-7000
Approximate date of
commencement of proposed sale to the public: From time to time,
after the effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of
the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same
offering. [ ]
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following
box. [X]
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
Large
accelerated
filer [ ] |
Accelerated
filer [ ] |
Non-accelerated
filer [X] |
Smaller
reporting
company [X] |
Emerging
growth
company [ ] |
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities
Act. [ ]
CALCULATION OF
REGISTRATION FEE
Title of
each class of
securities to be registered |
|
Amount To
Be
Registered |
|
|
Proposed
Maximum
Offering Price
Per Unit |
|
|
Proposed
Maximum
Aggregate
Offering Price |
|
|
Amount
of
Registration Fee |
|
|
Common
Stock, $0.001 par value per share |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Preferred
Stock, $0.001 par value per share |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Depositary
Shares |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Warrants
(3) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Rights |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Debt
Securities |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
Units
(4) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(1 |
) |
|
|
(2 |
) |
|
(1) |
Omitted
pursuant to General Instructions II.E. of Form S-3. An
indeterminate aggregate initial offering price or number of the
securities of each identified class is being registered as may from
time to time be issued at indeterminate prices. Pursuant to Rule
416 under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such
indeterminate number of shares of common stock and preferred stock
as may be issuable with respect to the securities being registered
hereunder as a result of stock splits, stock dividends or similar
transactions. This registration statement also covers an
indeterminate amount of securities that may be issued in exchange
for, or upon conversion or exercise of, as the case may be, any
securities registered hereunder that provide for conversion,
exercise or exchange. |
|
(2) |
In
accordance with Rules 456(b) and 457(r), the Registrant is
deferring payment of all of the registration fee. |
|
(3) |
Includes
warrants to purchase common stock, warrants to purchase preferred
stock and warrants to purchase debt securities. |
|
(4) |
The
securities registered hereunder may be sold separately, or as units
with other securities registered hereby. The proposed maximum
offering price per unit will be determined by us in connection with
the issuance of the securities. |
PROSPECTUS
Common
stock
Preferred
stock
Depositary
shares
Warrants
Rights
Debt
securities
Units
From time
to time, we may offer and sell, in one or more offerings, in
amounts, at prices and on terms determined at the time of any such
offering, common stock, preferred stock, depositary shares,
warrants, debt securities, and rights to purchase such securities,
either individually or in units.
This
prospectus may not be used to sell securities unless accompanied by
a prospectus supplement, which will describe the method and the
terms of the offering. We will provide you with specific the
amount, price and terms of the applicable offered securities in one
or more supplements to this prospectus. You should read this
prospectus and any supplement carefully before you purchase any of
our securities.
Our common stock is listed on the Nasdaq Capital Market under the
symbol “SAVA.” On February 9, 2021, the closing price of our common
stock on the Nasdaq Capital Market was $57.56 per share.
The
trading price of our common shares has recently increased
significantly, which we believe is attributable to our recently
announced positive results from an interim analysis from an
open-label study of simufilam, our lead drug candidate for the
treatment of Alzheimer’s disease. On December 31, 2020, the last
reported sale price of our common shares on the Nasdaq Capital
Market was $6.82 per share.
Investing in our
securities involves risk. Please carefully read the information
under “Risk Factors” beginning on page 4 for information you should
consider before investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
We may
offer the securities in amounts, at prices and on terms determined
at the time of offering. We may sell the securities directly to
you, through agents we select, or through underwriters and dealers
we select. If we use agents, underwriters or dealers to sell the
securities, we will name them and describe their compensation in a
prospectus supplement. In addition, the underwriters may overallot
a portion of the securities. For additional information regarding
the methods of sale of our securities, you should refer to the
section entitled “Plan of Distribution” in this
prospectus.
This
prospectus is dated February 10, 2021.
Table
of Contents
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission, or the SEC,
using a “shelf” registration process. Under this shelf process, we
may, from time to time, offer or sell any combination of the
securities described in this prospectus in one or more
offerings.
This
prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may also add to, update or change information contained
in the prospectus or in the documents incorporated by reference in
the prospectus. To the extent inconsistent, information in this
prospectus is superseded by the information in the prospectus
supplement.
The
prospectus supplement to be attached to the front of this
prospectus may describe, as applicable: the terms of the securities
offered; the initial public offering price; the price paid for the
securities; net proceeds; and the other specific terms related to
the offering of the securities.
You should
only rely on the information contained or incorporated by reference
in this prospectus and any prospectus supplement or issuer free
writing prospectus relating to a particular offering. No person has
been authorized to give any information or make any representations
in connection with this offering other than those contained or
incorporated by reference in this prospectus, any accompanying
prospectus supplement and any related issuer free writing
prospectus in connection with the offering described herein and
therein, and, if given or made, such information or representations
must 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 constitute an offer to sell or
a solicitation of an offer to buy offered securities in any
jurisdiction in which it 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.
You should read the entire prospectus and any prospectus supplement
and any related issuer free writing prospectus, as well as the
documents incorporated by reference into this prospectus or any
prospectus supplement or any related issuer free writing
prospectus, before making an investment decision. Neither the
delivery of this prospectus or any prospectus supplement or any
issuer free writing prospectus nor any sale made hereunder shall
under any circumstances imply that the information contained or
incorporated by reference herein or in any prospectus supplement or
issuer free writing prospectus is correct as of any date subsequent
to the date hereof or of such prospectus supplement or issuer free
writing prospectus, as applicable.
PROSPECTUS SUMMARY
The
following summary highlights information contained in this
prospectus or incorporated by reference. While we have included
what we believe to be the most important information about the
company and this offering, the following summary may not contain
all the information that may be important to you. You should read
this entire prospectus carefully, including the risks of investing
discussed under “Risk Factors” beginning on page 4, the information
to which we refer you and the information incorporated into this
prospectus by reference, for a complete understanding of our
business and this offering. References in this prospectus to “our
company,” “we,” “our,” “Cassava Sciences” and “us” refer to Cassava
Sciences, Inc.
Cassava
Sciences, Inc.
Overview
Cassava
Sciences, Inc. is a clinical stage biotechnology company. Our
mission is to detect and treat neurodegenerative diseases, such as
Alzheimer’s disease. Our novel science is based on stabilizing –
but not removing – a critical protein in the brain.
Over the
past 10 years, we have combined state-of-the-art technology with
new insights in neurobiology to develop novel solutions for
Alzheimer’s disease and other neurodegenerative diseases. Our
strategy is to leverage our unique scientific/clinical platform to
develop a first-in-class program for treating neurodegenerative
diseases, such as Alzheimer’s.
We
currently have two clinical-stage biopharmaceutical assets under
development:
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● |
our
lead therapeutic product candidate, called simufilam, for the
treatment of Alzheimer’s disease; and
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our lead
investigational diagnostic product candidate, called SavaDx, to
detect Alzheimer’s disease from a small sample of blood, possibly
years before the overt appearance of clinical symptoms. |
Our
scientific approach for the treatment of Alzheimer’s disease seeks
to simultaneously improve both neurodegeneration and
neuroinflammation. We believe our ability to improve multiple vital
functions in the brain represents a new, different and crucial
approach to address Alzheimer’s disease.
Corporate
Information
We were
incorporated in Delaware in May 1998. Our principal executive
offices are located at 7801 N Capital of Texas Highway, Suite 260,
Austin, TX, 78731 and our telephone number at that address is (512)
501-2444.
The
securities we may offer
We may
offer common stock, preferred stock, depositary shares, warrants,
debt securities, and rights to purchase such securities, either
individually or in units, in one or more offerings and in any
combination. This prospectus provides you with a general
description of the securities we may offer. A prospectus
supplement, which we will provide each time we offer securities,
will describe the specific amounts, prices and terms of these
securities.
We may
sell the securities to or through underwriters, dealers or agents
or directly to purchasers or as otherwise set forth below under
“Plan of Distribution.” We, as well as any agents acting on our
behalf, reserve the sole right to accept and to reject in whole or
in part any proposed purchase of securities. Each prospectus
supplement will set forth the names of any underwriters, dealers,
agents or other entities involved in the sale of securities
described in that prospectus supplement and any applicable fee,
commission or discount arrangements with them.
Common
stock
We may
offer shares of our common stock, par value $0.001 per share,
either alone or underlying other registered securities convertible
into our common stock. Holders of our common stock are entitled to
receive dividends declared by our board of directors out of funds
legally available for the payment of dividends, subject to rights,
if any, of preferred stockholders. Currently, we do not pay a
dividend. Each holder of common stock is entitled to one vote per
share. The holders of common stock have no preemptive
rights.
Preferred stock and
depositary shares
We may
issue preferred stock in one or more series. Our board of directors
or a committee designated by the board will determine the dividend,
voting and conversion rights and other provisions at the time of
sale. Each series of preferred stock will be more fully described
in the particular prospectus supplement that will accompany this
prospectus, including redemption provisions, rights in the event of
liquidation, dissolution or the winding up of Cassava Sciences,
Inc., voting rights and rights to convert into common stock. We may
also issue fractional shares of preferred stock that will be
represented by depositary shares and depositary receipts. Each
particular series of depositary shares will be more fully described
in the prospectus supplement that will accompany this
prospectus.
Warrants
We may
issue warrants for the purchase of common stock, preferred stock or
debt securities. We may issue warrants independently or together
with other securities.
Rights
We may
issue rights to purchase our debt securities, common stock,
preferred stock or other securities. We may issue rights
independently or together with other securities.
Debt
securities
We may
offer secured or unsecured obligations in the form of one or more
series of senior or subordinated debt. The senior debt securities
and the subordinated debt securities are together referred to in
this prospectus as the “debt securities.” The senior debt
securities will have the same rank as all of our other
unsubordinated debt. The subordinated debt securities generally
will be entitled to payment only after payment of our senior debt.
Senior debt generally includes all debt for money borrowed by us,
except debt that is stated in the instrument governing the terms of
that debt to be not senior to, or to have the same rank in right of
payment as, or to be expressly junior to, the subordinated debt
securities. We may issue debt securities that are convertible into
shares of our common stock.
The senior
and subordinated debt securities will be issued under separate
indentures between us and a trustee. We have summarized the general
features of the debt securities to be governed by the indentures.
These indentures have been filed as exhibits to the registration
statement of which this prospectus forms a part. We encourage you
to read these indentures. Instructions on how you can get copies of
these documents are provided under the heading “Where You Can Find
More Information.”
Units
We may
offer units comprised of common stock, preferred stock, depositary
shares, warrants, debt securities, or any combination
thereof.
RISK FACTORS
An
investment in our securities involves a high degree of risk. The
prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment
in our securities. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors
discussed under the heading “Risk Factors” in the applicable
prospectus supplement, together with all of the other information
contained or incorporated by reference in the prospectus supplement
or appearing or incorporated by reference in this prospectus. You
should also consider the risks, uncertainties and assumptions
discussed under Item 1A, “Risk Factors,” in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019 which are
incorporated herein by reference, and may be amended, supplemented
or superseded from time to time by other reports we file with the
SEC in the future and any prospectus supplement related to a
particular offering. The risks and uncertainties we have described
are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may
also affect our operations.
FORWARD-LOOKING
STATEMENTS
This
prospectus and the registration statement of which it forms a part,
any prospectus supplement, any related issuer free writing
prospectus and the documents incorporated by reference into these
documents contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Forward-looking statements deal
with our current plans, intentions, beliefs and expectations and
statements of future economic performance. Statements containing
terms such as “believe,” “do not believe,” “plan,” “expect,”
“intend,” “estimate,” “anticipate” and other phrases of similar
meaning are considered to contain uncertainty and are
forward-looking statements. In addition, from time to time we or
our representatives have made or will make forward-looking
statements orally or in writing. Furthermore, such forward-looking
statements may be included in various filings that we make with the
SEC, or press releases or oral statements made by or with the
approval of one of our authorized executive officers. These
forward-looking statements are subject to certain known and unknown
risks and uncertainties, as well as assumptions that could cause
actual results to differ materially from those reflected in these
forward-looking statements. Factors that might cause actual results
to differ include, but are not limited to, those set forth under
Item 1A, “Risk Factors,” and Item 7, “Management’s Discussion and
Analysis of Financial Condition and Results of Operation,” in our
most recent Annual Report on Form 10-K and in our future filings
made with the SEC. Readers are cautioned not to place undue
reliance on any forward-looking statements contained in this
prospectus, any prospectus supplement or any related issuer free
writing prospectus, which reflect management’s opinions only as of
their respective dates. Except as required by law, we undertake no
obligation to revise or publicly release the results of any
revisions to any forward-looking statements. You are advised,
however, to consult any additional disclosures we have made or will
make in our reports to the SEC on Forms 10-K, 10-Q and 8-K. All
subsequent written and oral forward-looking statements attributable
to us or persons acting on our behalf are expressly qualified in
their entirety by the cautionary statements contained in this
prospectus, any prospectus supplement or any related issuer free
writing prospectus.
USE OF PROCEEDS
Unless
otherwise indicated in the prospectus supplement, the net proceeds
from the sale of securities offered by this prospectus will be used
for general corporate purposes and working capital requirements,
which may include, among other things, the repayment or repurchase
of debt obligations and other capital expenditures. We may also use
a portion of the net proceeds for licensing or acquiring
intellectual property or technologies to incorporate into our
products and product candidates or our research and development
programs, capital expenditures, to fund possible investments in and
acquisitions of complementary businesses or partnerships. We have
not determined the amounts we plan to spend on the areas listed
above or the timing of these expenditures, and we have no current
plans with respect to acquisitions as of the date of this
prospectus. As a result, unless otherwise indicated in the
prospectus supplement, our management will have broad discretion to
allocate the net proceeds of the offerings. Pending their ultimate
use, we intend to invest the net proceeds in a variety of
securities, including commercial paper, government and
non-government debt securities and/or money market funds that
invest in such securities.
DIVIDEND POLICY
Other than
our special nondividend distributions in December 2012 and December
2010, we have not paid cash dividends on our common stock. We do
not anticipate paying periodic cash dividends on our common stock
for the foreseeable future. We intend to use all available cash and
liquid assets in the operation and growth of our business. Any
future determination about the payment of dividends will be made at
the discretion of our board of directors and will depend upon our
earnings, if any, capital requirements, operating and financial
conditions and on such other factors as our board of directors
deems relevant.
DESCRIPTION OF CAPITAL
STOCK
General
As of the
date of this prospectus, our authorized capital stock consists of
130,000,000 shares. Those shares consist of 120,000,000 shares
designated as common stock, $0.001 par value, and 10,000,000 shares
designated as preferred stock, $0.001 par value. The only equity
securities currently outstanding are shares of common stock. As of
September 30, 2020, there were 25,578,673 shares of common stock
issued and outstanding.
The
following is a summary of the material provisions of the common
stock and preferred stock provided for in our amended and restated
certificate of incorporation (including the certificate of
designation relating to the Series A Preferred) and bylaws. For
additional detail about our capital stock, please refer to our
amended and restated certificate of incorporation (including the
certificate of designation relating to the Series A Preferred), and
bylaws, each as amended, copies of which are incorporated by
reference into the registration statement to which this prospectus
relates.
Common
stock
The
holders of common stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Subject to
preferences that may be applicable to any outstanding preferred
stock, the holders of common stock are entitled to receive ratably
any dividends that may be declared from time to time by the board
of directors out of funds legally available for that purpose.
However, we are not currently paying any dividends. In the event of
our liquidation, dissolution or winding up, the holders of common
stock are entitled to share ratably in all assets remaining after
payment of liabilities, subject to prior distribution rights of
preferred stock then outstanding. The common stock has no
preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the
common stock. The outstanding shares of common stock are fully paid
and non-assessable, and any shares of common stock to be issued
upon an offering pursuant to this prospectus and the related
prospectus supplement will be fully paid and nonassessable upon
issuance.
Our common
stock is listed on the Nasdaq Capital Market under the symbol
“SAVA.” The transfer agent and registrar for the common stock is
Computershare Shareowner Services LLC. Its address is 330 N Brand
Boulevard, Suite 701, Glendale, California, 91203-2389.
Preferred
stock
The
following description of preferred stock and the description of the
terms of any particular series of preferred stock that we choose to
issue hereunder and that will be set forth in the related
prospectus supplement are not complete. These descriptions are
qualified in their entirety by reference to our amended and
restated certificate of incorporation and the certificate of
designation relating to that series. The rights, preferences,
privileges and restrictions of the preferred stock of each series
will be fixed by the certificate of designation relating to that
series. The prospectus supplement also will contain a description
of certain U.S. federal income tax consequences relating to the
purchase and ownership of the series of preferred stock that is
described in the prospectus supplement.
We
currently have no shares of preferred stock outstanding. Our board
of directors has the authority, without further action by the
stockholders, to issue up to 10,000,000 shares of preferred stock
in one or more series and to fix the rights, preferences,
privileges and restrictions granted to or imposed upon the
preferred stock. Any or all of these rights may be greater than the
rights of the common stock.
The board
of directors, without stockholder approval, can issue preferred
stock with voting, conversion or other rights that could negatively
affect the voting power and other rights of the holders of common
stock. Preferred stock could thus be issued quickly with terms
calculated to delay or prevent a change in control of us or make it
more difficult to remove our management. Additionally, the issuance
of preferred stock may have the effect of decreasing the market
price of the common stock.
The
prospectus supplement for a series of preferred stock will
specify:
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the
maximum number of shares;
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the
designation of the shares;
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the annual
dividend rate, if any, whether the dividend rate is fixed or
variable, the date or dates on which dividends will accrue, the
dividend payment dates, and whether dividends will be
cumulative;
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the price
and the terms and conditions for redemption, if any, including
redemption at our option or at the option of the holders, including
the time period for redemption, and any accumulated dividends or
premiums;
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the
liquidation preference, if any, and any accumulated dividends upon
the liquidation, dissolution or winding up of our
affairs;
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any
sinking fund or similar provision, and, if so, the terms and
provisions relating to the purpose and operation of the
fund;
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the terms
and conditions, if any, for conversion or exchange of shares of any
other class or classes of our capital stock or any series of any
other class or classes, or of any other series of the same class,
or any other securities or assets, including the price or the rate
of conversion or exchange and the method, if any, of
adjustment;
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the voting
rights; and
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any or all
other preferences and relative, participating, optional or other
special rights, privileges or qualifications, limitations or
restrictions.
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Preferred
stock will be fully paid and nonassessable upon
issuance.
Anti-takeover
effects of some provisions of Delaware law
Provisions
of Delaware law and our currently in effect amended and restated
certificate of incorporation and amended bylaws could make the
acquisition of our company through a tender offer, a proxy contest
or other means more difficult and could make the removal of
incumbent officers and directors more difficult. We expect these
provisions to discourage coercive takeover practices and inadequate
takeover bids and to encourage persons seeking to acquire control
of our company to first negotiate with our board of directors. We
believe that the benefits provided by our ability to negotiate with
the proponent of an unfriendly or unsolicited proposal outweigh the
disadvantages of discouraging these proposals. We believe the
negotiation of an unfriendly or unsolicited proposal could result
in an improvement of its terms.
We are
subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years
following the date the person became an interested stockholder,
unless:
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Prior to
the date of the transaction, the board of directors of the
corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
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The
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding (a) shares owned by persons who are directors and also
officers, and (b) shares owned by employee stock plans in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
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On or
subsequent to the date of the transaction, the business combination
is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the
affirmative vote of at least two-thirds of the outstanding voting
stock that is not owned by the interested stockholder. |
Generally,
a “business combination” includes a merger, asset or stock sale, or
other transaction resulting in a financial benefit to the
interested stockholder. 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 outstanding voting
securities. We expect the existence of this provision to have an
anti-takeover effect with respect to transactions our board of
directors does not approve in advance. We also anticipate that
Section 203 may also discourage attempts that might result in a
premium over the market price for the shares of common stock held
by stockholders.
Anti-takeover
effects of provisions of our charter documents
Our
amended and restated certificate of incorporation provides for our
board of directors to be divided into three classes serving
staggered terms. Approximately one-third of the board of directors
will be elected each year. The provision for a classified board
could prevent a party who acquires control of a majority of the
outstanding voting stock from obtaining control of the board of
directors until the second annual stockholders meeting following
the date the acquirer obtains the controlling stock interest. The
classified board provision could discourage a potential acquirer
from making a tender offer or otherwise attempting to obtain
control of our company and could increase the likelihood that
incumbent directors will retain their positions. Our amended and
restated certificate of incorporation provides that directors may
be removed with cause by the affirmative vote of the holders of the
outstanding shares of common stock.
Our
amended and restated certificate of incorporation requires that
certain amendments of the amended and restated certificate of
incorporation and certain amendments by the stockholders of our
bylaws require the approval of at least 66 2/3% of the voting power
of all outstanding stock. These provisions could discourage a
potential acquirer from making a tender offer or otherwise
attempting to obtain control of our company and could delay changes
in our management.
Our
amended bylaws establish an advance notice procedure for
stockholder proposals to be brought before an annual meeting of our
stockholders, including proposed nominations of persons for
election to the board of directors. At an annual meeting,
stockholders may only consider proposals or nominations specified
in the notice of meeting or brought before the meeting by or at the
direction of the board of directors. Stockholders may also consider
a proposal or nomination by a person who was a stockholder of
record on the record date for the meeting, who is entitled to vote
at the meeting and who has given to our Secretary timely written
notice, in proper form, of his or her intention to bring that
business before the meeting. The amended bylaws do not give the
board of directors the power to approve or disapprove stockholder
nominations of candidates or proposals regarding other business to
be conducted at a special or annual meeting of the stockholders.
However, our bylaws may have the effect of precluding the conduct
of business at a meeting if the proper procedures are not followed.
These provisions may also discourage or deter a potential acquirer
from conducting a solicitation of proxies to elect the acquirer’s
own slate of directors or otherwise attempting to obtain control of
our company.
Our
amended bylaws provide that only our board of directors, the
chairman of the board, the president or the chief executive officer
may call a special meeting of stockholders. Because our
stockholders do not have the right to call a special meeting, a
stockholder could not force stockholder consideration of a proposal
over the opposition of the board of directors by calling a special
meeting of stockholders prior to such time as a majority of the
board of directors believed or the chief executive officer believed
the matter should be considered or until the next annual meeting
provided that the requestor met the notice requirements. The
restriction on the ability of stockholders to call a special
meeting means that a proposal to replace the board also could be
delayed until the next annual meeting.
Our
amended and restated certificate of incorporation does not allow
stockholders to act by written consent without a meeting. Without
the availability of stockholder’s actions by written consent, a
holder controlling a majority of our capital stock would not be
able to amend our bylaws or remove directors without holding a
stockholders’ meeting. The holder would have to obtain the consent
of a majority of the board of directors, the chairman of the board
or the chief executive officer to call a stockholders’ meeting and
satisfy the notice periods determined by the board of
directors.
DESCRIPTION OF THE DEPOSITARY
SHARES
General
At our
option, we may elect to offer fractional shares of preferred stock,
rather than full shares of preferred stock. If we do elect to offer
fractional shares of preferred stock, we will issue receipts for
depositary shares and each of these depositary shares will
represent a fraction of a share of a particular series of preferred
stock, as specified in the applicable prospectus supplement. Each
owner of a depositary share will be entitled, in proportion to the
applicable fractional interest in shares of preferred stock
underlying that depositary share, to all rights and preferences of
the preferred stock underlying that depositary share. These rights
may include dividend, voting, redemption and liquidation
rights.
The shares
of preferred stock underlying the depositary shares will be
deposited with a bank or trust company selected by us to act as
depositary, under a deposit agreement by and among us, the
depositary and the holders of the depositary receipts. The
depositary will be the transfer agent, registrar and dividend
disbursing agent for the depositary shares.
The
depositary shares will be evidenced by depositary receipts issued
pursuant to the depositary agreement. Holders of depositary
receipts agree to be bound by the deposit agreement, which requires
holders to take certain actions such as filing proof of residence
and paying certain charges.
The
summary of terms of the depositary shares contained in this
prospectus is not complete, and is subject to modification in any
prospectus supplement for any issuance of depositary shares. You
should refer to the forms of the deposit agreement, our amended and
restated certificate of incorporation and the certificate of
designation that are, or will be, filed with the SEC for the
applicable series of preferred stock.
Dividends
The
depositary will distribute cash dividends or other cash
distributions, if any, received in respect of the series of
preferred stock underlying the depositary shares to the record
holders of depositary receipts in proportion to the number of
depositary shares owned by those holders on the relevant record
date. The relevant record date for depositary shares will be the
same date as the record date for the preferred stock.
In the
event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of
depositary receipts that are entitled to receive the distribution,
unless the depositary determines that it is not feasible to make
the distribution. If this occurs, the depositary, with our
approval, may adopt another method for the distribution, including
selling the property and distributing the net proceeds to the
holders.
Liquidation
preference
If a
series of preferred stock underlying the depositary shares has a
liquidation preference, in the event of our voluntary or
involuntary liquidation, dissolution or winding up, holders of
depositary shares will be entitled to receive the fraction of the
liquidation preference accorded each share of the applicable series
of preferred stock, as set forth in the applicable prospectus
supplement.
Redemption
If a
series of preferred stock underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from
the proceeds received by the depositary resulting from the
redemption, in whole or in part, of the preferred stock held by the
depositary. Whenever we redeem any preferred stock held by the
depositary, the depositary will redeem, as of the same redemption
date, the number of depositary shares representing the preferred
stock so redeemed. The depositary will mail the notice of
redemption to the record holders of the depositary receipts
promptly upon receiving the notice from us and not fewer than 20 or
more than 60 days, unless otherwise provided in the applicable
prospectus supplement, prior to the date fixed for redemption of
the preferred stock.
Voting
Upon
receipt of notice of any meeting at which the holders of preferred
stock are entitled to vote, the depositary will mail the
information contained in the notice of meeting to the record
holders of the depositary receipts underlying the preferred stock.
Each record holder of those depositary receipts on the record date
will be entitled to instruct the depositary as to the exercise of
the voting rights pertaining to the amount of preferred stock
underlying that holder’s depositary shares. The record date for the
depositary will be the same date as the record date for the
preferred stock. The depositary will, to the extent practicable,
vote the preferred stock underlying the depositary shares in
accordance with these instructions. We will agree to take all
action that may be deemed necessary by the depositary in order to
enable the depositary to vote the preferred stock in accordance
with these instructions. The depositary will not vote the preferred
stock to the extent that it does not receive specific instructions
from the holders of depositary receipts.
Withdrawal of
preferred stock
Owners of
depositary shares will be entitled to receive upon surrender of
depositary receipts at the principal office of the depositary and
payment of any unpaid amount due to the depositary, the number of
whole shares of preferred stock underlying their depositary
shares.
Partial
shares of preferred stock will not be issued. Holders of preferred
stock will not be entitled to deposit the shares under the deposit
agreement or to receive depositary receipts evidencing depositary
shares for the preferred stock.
Amendment and
termination of the deposit agreement
The form
of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement
between the depositary and us. However, any amendment which
materially and adversely alters the rights of the holders of
depositary shares, other than fee changes, will not be effective
unless the amendment has been approved by at least a majority of
the outstanding depositary shares. The deposit agreement may be
terminated by the depositary or us only if:
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all
outstanding depositary shares have been redeemed; or
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there
has been a final distribution of the preferred stock in connection
with our dissolution and such distribution has been made to all the
holders of depositary shares.
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Charges
of depositary
We will
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangement. We will
also pay charges of the depositary in connection with:
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the
initial deposit of the preferred stock;
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the
initial issuance of the depositary shares;
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any
redemption of the preferred stock; and
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all
withdrawals of preferred stock by owners of depositary
shares.
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Holders of
depositary receipts will pay transfer, income and other taxes and
governmental charges and other specified charges as provided in the
deposit agreement for their accounts. If these charges have not
been paid, the depositary may:
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refuse
to transfer depositary shares;
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withhold
dividends and distributions; and
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sell
the depositary shares evidenced by the depositary
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Miscellaneous
The
depositary will forward to the holders of depositary receipts all
reports and communications we deliver to the depositary that we are
required to furnish to the holders of the preferred stock. In
addition, the depositary will make available for inspection by
holders of depositary receipts at the principal office of the
depositary, and at such other places as it may from time to time
deem advisable, any reports and communications we deliver to the
depositary as the holder of preferred stock.
Neither
the depositary nor we will be liable if either the depositary or we
are prevented or delayed by law or any circumstance beyond the
control of either the depositary or us in performing our respective
obligations under the deposit agreement. Our obligations and the
depositary’s obligations will be limited to the performance in good
faith of our or the depositary’s respective duties under the
deposit agreement. Neither the depositary nor we will be obligated
to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity
is furnished. The depositary and we may rely on:
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written
advice of counsel or accountants;
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information
provided by holders of depositary receipts or other persons
believed in good faith to be competent to give such information;
and
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documents
believed to be genuine and to have been signed or presented by the
proper party or parties.
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Resignation and
removal of depositary
The
depositary may resign at any time by delivering a notice to us. We
may remove the depositary at any time. Any such resignation or
removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. The successor
depositary must be appointed within 60 days after delivery of the
notice for resignation or removal. The successor depositary must be
a bank and trust company having its principal office in the United
States of America and having a combined capital and surplus of at
least $50,000,000.
Federal
income tax consequences
Owners of
the depositary shares will be treated for U.S. federal income tax
purposes as if they were owners of the preferred stock underlying
the depositary shares. As a result, owners will be entitled to take
into account for U.S. federal income tax purposes and deductions to
which they would be entitled if they were holders of such preferred
stock. No gain or loss will be recognized for U.S. federal income
tax purposes upon the withdrawal of preferred stock in exchange for
depositary shares. The tax basis of each share of preferred stock
to an exchanging owner of depositary shares will, upon such
exchange, be the same as the aggregate tax basis of the depositary
shares exchanged. The holding period for preferred stock in the
hands of an exchanging owner of depositary shares will include the
period during which such person owned such depositary
shares.
DESCRIPTION OF THE
WARRANTS
General
We may
issue warrants for the purchase of our debt securities, preferred
stock or common stock, or any combination thereof. Warrants may be
issued independently or together with our debt securities,
preferred stock or common stock and may be attached to or separate
from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us
and a bank or trust company, as warrant agent. The warrant agent
will act solely as our agent in connection with the warrants. The
warrant agent will not have any obligation or relationship of
agency or trust for or with any holders or beneficial owners of
warrants. This summary of certain provisions of the warrants is not
complete. For the terms of a particular series of warrants, you
should refer to the prospectus supplement for that series of
warrants and the warrant agreement for that particular
series.
Debt
warrants
The
prospectus supplement relating to a particular issue of warrants to
purchase debt securities will describe the terms of the debt
warrants, including the following:
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the
title of the debt warrants;
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the
offering price for the debt warrants, if any;
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the
aggregate number of the debt warrants;
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the
designation and terms of the debt securities, including any
conversion rights, purchasable upon exercise of the debt
warrants;
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if
applicable, the date from and after which the debt warrants and any
debt securities issued with them will be separately
transferable;
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the
principal amount of debt securities that may be purchased upon
exercise of a debt warrant and the exercise price for the warrants,
which may be payable in cash, securities or other
property;
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the
dates on which the right to exercise the debt warrants will
commence and expire;
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if
applicable, the minimum or maximum amount of the debt warrants that
may be exercised at any one time;
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whether
the debt warrants represented by the debt warrant certificates or
debt securities that may be issued upon exercise of the debt
warrants will be issued in registered or bearer form; |
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information
with respect to book-entry procedures, if any; the currency or
currency units in which the offering price, if any, and the
exercise price are payable;
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if
applicable, a discussion of material U.S. federal income tax
considerations;
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the
antidilution provisions of the debt warrants, if any;
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the
redemption or call provisions, if any, applicable to the debt
warrants;
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any
provisions with respect to the holder’s right to require us to
repurchase the warrants upon a change in control or similar event;
and
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any
additional terms of the debt warrants, including procedures, and
limitations relating to the exchange, exercise and settlement of
the debt warrants.
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Debt
warrant certificates will be exchangeable for new debt warrant
certificates of different denominations. Debt warrants may be
exercised at the corporate trust office of the warrant agent or any
other office indicated in the prospectus supplement. Prior to the
exercise of their debt warrants, holders of debt warrants will not
have any of the rights of holders of the debt securities
purchasable upon exercise and will not be entitled to payment of
principal or any premium, if any, or interest on the debt
securities purchasable upon exercise.
Equity
warrants
The
prospectus supplement relating to a particular series of warrants
to purchase our common stock or preferred stock, including
preferred stock underlying depositary shares, will describe the
terms of the warrants, including the following:
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the
title of the warrants;
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the
offering price for the warrants, if any;
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the
aggregate number of warrants;
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the
designation and terms of the common stock or preferred stock that
may be purchased upon exercise of the warrants;
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if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
security;
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if
applicable, the date from and after which the warrants and any
securities issued with the warrants will be separately
transferable;
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the
number of shares of common stock or preferred stock that may be
purchased upon exercise of a warrant and the exercise price for the
warrants;
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the
dates on which the right to exercise the warrants shall commence
and expire;
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if
applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time;
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the
currency or currency units in which the offering price, if any, and
the exercise price are payable;
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if
applicable, a discussion of material U.S. federal income tax
considerations;
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the
antidilution provisions of the warrants, if any;
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the
redemption or call provisions, if any, applicable to the
warrants;
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any
provisions with respect to the holder’s right to require us to
repurchase the warrants upon a change in control or similar event;
and
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any
additional terms of the warrants, including procedures, and
limitations relating to the exchange, exercise and settlement of
the warrants.
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Holders of
equity warrants will not be entitled:
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to
vote, consent or receive dividends;
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receive
notice as stockholders with respect to any meeting of stockholders
for the election of our directors or any other matter;
or
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exercise
any rights as stockholders of us. |
DESCRIPTION OF RIGHTS
We may issue rights to purchase our debt securities, common stock,
preferred stock or other securities. These rights may be issued
independently or together with any other security offered hereby
and may or may not be transferable by the stockholder receiving the
rights in such offering. In connection with any offering of such
rights, we may enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
Each series of rights will be issued under a separate rights
agreement which we will enter into with a bank or trust company, as
rights agent, all which will be set forth in the relevant offering
material. The rights agent will act solely as our agent in
connection with the certificates relating to the rights and will
not assume any obligation or relationship of agency or trust with
any holders of rights certificates or beneficial owners of
rights.
The following description is a summary of selected provisions
relating to rights that we may offer. The summary is not complete.
When rights are offered in the future, a prospectus supplement,
information incorporated by reference or a free writing prospectus,
as applicable, will explain the particular terms of those
securities and the extent to which these general provisions may
apply. The specific terms of the rights as described in a
prospectus supplement, information incorporated by reference, or
free writing prospectus will supplement and, if applicable, may
modify or replace the general terms described in this section.
This summary and any description of rights in the applicable
prospectus supplement, information incorporated by reference or
free writing prospectus is subject to and is qualified in its
entirety by reference to the rights agreement and the rights
certificates. We will file each of these documents, as applicable,
with the SEC and incorporate them by reference as an exhibit to the
registration statement of which this prospectus is a part on or
before the time we issue a series of rights. See “Where You Can
Find More Information” and “Incorporation of Certain Documents by
Reference” below for information on how to obtain a copy of a
document when it is filed.
The applicable prospectus supplement, information incorporated by
reference or free writing prospectus may describe:
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in the case of a distribution of rights to our
stockholders, the date of determining the stockholders entitled to
the rights distribution; |
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in the case of a distribution of rights to our
stockholders, the number of rights issued or to be issued to each
stockholder; |
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the exercise price payable for the underlying
debt securities, common stock, preferred stock or other securities
upon the exercise of the rights; |
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the number and terms of the underlying debt
securities, common stock, preferred stock or other securities which
may be purchased per each right; |
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the extent to which the rights are
transferable; |
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the date on which the holder’s ability to
exercise the rights shall commence, and the date on which the
rights shall expire; |
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the extent to which the rights may include an
over-subscription privilege with respect to unsubscribed
securities; |
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if applicable, the material terms of any standby
underwriting or purchase arrangement entered into by us in
connection with the offering of such rights; and |
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any other terms of the rights, including, but not
limited to, the terms, procedures, conditions and limitations
relating to the exchange and exercise of the rights. |
The provisions described in this section, as well as those
described under “Description of Debt Securities” and “Description
of Capital Stock” above, will apply, as applicable, to any rights
we offer.
DESCRIPTION OF THE DEBT
SECURITIES
The debt
securities may be either secured or unsecured and will either be
our senior debt securities or our subordinated debt securities. The
debt securities will be issued under one or more separate
indentures between us and a trustee to be specified in an
accompanying prospectus supplement. Senior debt securities will be
issued under a senior indenture and subordinated debt securities
will be issued under a subordinated indenture. Together, the senior
indenture and the subordinated indenture are called indentures in
this description. This prospectus, together with the applicable
prospectus supplement, will describe the terms of a particular
series of debt securities.
The
following is a summary of selected provisions and definitions of
the indentures and debt securities to which any prospectus
supplement may relate. The summary of selected provisions of the
indentures and the debt securities appearing below is not complete
and is subject to, and qualified entirely by reference to, all of
the provisions of the applicable indenture and certificates
evidencing the applicable debt securities. For additional
information, you should look at the applicable indenture and the
certificate evidencing the applicable debt security that is filed
as an exhibit to the registration statement that includes the
prospectus. In this description of the debt securities, the words
“Cassava Sciences,” “we,” “us,” or “our” refer only to Cassava
Sciences, Inc. and not to any of our subsidiaries, unless we
expressly state or the context otherwise requires.
The
following description sets forth selected general terms and
provisions of the applicable indenture and debt securities to which
any prospectus supplement may relate. Other specific terms of the
applicable indenture and debt securities will be described in the
applicable prospectus supplement. If any particular terms of the
indenture or debt securities described in a prospectus supplement
differ from any of the terms described below, then the terms
described below will be deemed to have been superseded by that
prospectus supplement.
General
Debt
securities may be issued in separate series without limitation as
to aggregate principal amount. We may specify a maximum aggregate
principal amount for the debt securities of any series.
We are not
limited as to the amount of debt securities we may issue under the
indentures. Unless otherwise provided in a prospectus supplement, a
series of debt securities may be reopened to issue additional debt
securities of such series.
The
prospectus supplement relating to a particular series of debt
securities will set forth:
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whether
the debt securities are senior or subordinated;
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the
offering price;
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the
title;
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any
limit on the aggregate principal amount;
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the
person who shall be entitled to receive interest, if other than the
record holder on the record date;
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the
date or dates the principal will be payable;
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the
interest rate or rates, which may be fixed or variable, if any, the
date from which interest will accrue, the interest payment dates
and the regular record dates, or the method for calculating the
dates and rates;
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the
place where payments may be made;
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any
mandatory or optional redemption provisions or sinking fund
provisions and any applicable redemption or purchase prices
associated with these provisions;
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if
issued other than in denominations of U.S. $1,000 or any multiple
of U.S. $1,000, the denominations in which the debt securities
shall be issuable;
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if
applicable, the method for determining how the principal, premium,
if any, or interest will be calculated by reference to an index or
formula;
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if
other than U.S. currency, the currency or currency units in which
principal, premium, if any, or interest will be payable and whether
we or a holder may elect payment to be made in a different
currency;
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the
portion of the principal amount that will be payable upon
acceleration of maturity, if other than the entire principal
amount;
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if
the principal amount payable at stated maturity will not be
determinable as of any date prior to stated maturity, the amount or
method for determining the amount which will be deemed to be the
principal amount;
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if
applicable, whether the debt securities shall be subject to the
defeasance provisions described below under “Satisfaction and
discharge; defeasance” or such other defeasance provisions
specified in the applicable prospectus supplement for the debt
securities;
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any
conversion or exchange provisions;
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whether
the debt securities will be issuable in the form of a global
security;
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any
subordination provisions applicable to the subordinated debt
securities if different from those described below under
“Subordinated debt securities;”
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any
paying agents, authenticating agents, security registrars or other
agents for the debt securities, if other than the
trustee;
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any
provisions relating to any security provided for the debt
securities, including any provisions regarding the circumstances
under which collateral may be released or substituted;
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any
deletions of, or changes or additions to, the events of default,
acceleration provisions or covenants;
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any
provisions relating to guaranties for the securities and any
circumstances under which there may be additional obligors;
and
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any
other specific terms of such debt securities.
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Unless
otherwise specified in the prospectus supplement, the debt
securities will be registered debt securities. Debt securities may
be sold at a substantial discount below their stated principal
amount, bearing no interest or interest at a rate which, at the
time of issuance, is below market rates. The U.S. federal income
tax considerations applicable to debt securities sold at a discount
will be described in the applicable prospectus
supplement.
Exchange and
transfer
Debt
securities may be transferred or exchanged at the office of the
security registrar or at the office of any transfer agent
designated by us.
We will
not impose a service charge for any transfer or exchange, but we
may require holders to pay any tax or other governmental charges
associated with any transfer or exchange.
In the
event of any partial redemption of debt securities of any series,
we will not be required to:
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issue,
register the transfer of, or exchange, any debt security of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption and ending at
the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt security of that series
selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part.
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We will
appoint the trustee as the initial security registrar. Any transfer
agent, in addition to the security registrar initially designated
by us, will be named in the prospectus supplement. We may designate
additional transfer agents or change transfer agents or change the
office of the transfer agent. However, we will be required to
maintain a transfer agent in each place of payment for the debt
securities of each series.
Global
securities
The debt
securities of any series may be represented, in whole or in part,
by one or more global securities. Each global security
will:
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be
registered in the name of a depositary, or its nominee, that we
will identify in a prospectus supplement;
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be
deposited with the depositary or nominee or custodian;
and
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bear any
required legends.
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No global
security may be exchanged in whole or in part for debt securities
registered in the name of any person other than the depositary or
any nominee unless:
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the
depositary has notified us that it is unwilling or unable to
continue as depositary or has ceased to be qualified to act as
depositary;
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an event
of default is continuing with respect to the debt securities of the
applicable series; or
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any other
circumstance described in a prospectus supplement has occurred
permitting or requiring the issuance of any such
security.
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As long as
the depositary, or its nominee, is the registered owner of a global
security, the depositary or nominee will be considered the sole
owner and holder of the debt securities represented by the global
security for all purposes under the indentures. Except in the above
limited circumstances, owners of beneficial interests in a global
security will not be:
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entitled
to have the debt securities registered in their names;
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entitled
to physical delivery of certificated debt securities; or
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considered
to be holders of those debt securities under the
indenture.
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Payments
on a global security will be made to the depositary or its nominee
as the holder of the global security. Some jurisdictions have laws
that require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may
impair the ability to transfer beneficial interests in a global
security.
Institutions
that have accounts with the depositary or its nominee are referred
to as “participants.” Ownership of beneficial interests in a global
security will be limited to participants and to persons that may
hold beneficial interests through participants. The depositary will
credit, on its book-entry registration and transfer system, the
respective principal amounts of debt securities represented by the
global security to the accounts of its participants.
Ownership
of beneficial interests in a global security will be shown on and
effected through records maintained by the depositary, with respect
to participants’ interests, or any participant, with respect to
interests of persons held by participants on their
behalf.
Payments,
transfers and exchanges relating to beneficial interests in a
global security will be subject to policies and procedures of the
depositary. The depositary policies and procedures may change from
time to time. Neither any trustee nor we will have any
responsibility or liability for the depositary’s or any
participant’s records with respect to beneficial interests in a
global security.
Payment
and paying agents
Unless
otherwise indicated in a prospectus supplement, the provisions
described in this paragraph will apply to the debt securities.
Payment of interest on a debt security on any interest payment date
will be made to the person in whose name the debt security is
registered at the close of business on the regular record date.
Payment on debt securities of a particular series will be payable
at the office of a paying agent or paying agents designated by us.
However, at our option, we may pay interest by mailing a check to
the record holder. The trustee will be designated as our initial
paying agent.
We
may also name any other paying agents in a prospectus supplement.
We may designate additional paying agents, change paying agents or
change the office of any paying agent. However, we will be required
to maintain a paying agent in each place of payment for the debt
securities of a particular series.
All
moneys paid by us to a paying agent for payment on any debt
security that remain unclaimed for a period ending the earlier
of:
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10
business days prior to the date the money would be turned over to
the applicable state; or |
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at
the end of two years after such payment was due,
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will
be repaid to us thereafter. The holder may look only to us for such
payment.
No
protection in the event of a change of control
Unless
otherwise indicated in a prospectus supplement with respect to a
particular series of debt securities, the debt securities will not
contain any provisions that may afford holders of the debt
securities protection 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.
Covenants
Unless
otherwise indicated in a prospectus supplement with respect to a
particular series of debt securities, the debt securities will not
contain any financial or restrictive covenants.
Consolidation,
merger and sale of assets
Unless
we indicate otherwise in a prospectus supplement with respect to a
particular series of debt securities, we may not consolidate with
or merge into any other person (other than a subsidiary of us), in
a transaction in which we are not the surviving corporation, or
convey, transfer or lease our properties and assets substantially
as an entirety to, any person (other than a subsidiary of us),
unless:
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the
successor entity, if any, is a U.S. corporation, limited liability
company, partnership, trust or other business entity;
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the
successor entity assumes our obligations on the debt securities and
under the indentures; |
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immediately
after giving effect to the transaction, no default or event of
default shall have occurred and be continuing; and
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certain
other conditions specified in the indenture are met.
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Events
of default
Unless
we indicate otherwise in a prospectus supplement, the following
will be events of default for any series of debt securities under
the indentures:
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(1) |
we
fail to pay principal of or any premium on any debt security of
that series when due; |
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(2) |
we
fail to pay any interest on any debt security of that series for 60
days after it becomes due; |
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(3) |
we
fail to deposit any sinking fund payment when due; |
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(4) |
we
fail to perform any other covenant in the indenture and such
failure continues for 90 days after we are given the notice
required in the indentures; and |
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(5) |
certain
events involving our bankruptcy, insolvency or
reorganization. |
Additional
or different events of default applicable to a series of debt
securities may be described in a prospectus supplement. An event of
default of one series of debt securities is not necessarily an
event of default for any other series of debt
securities.
The
trustee may withhold notice to the holders of any default, except
defaults in the payment of principal, premium, if any, interest,
any sinking fund installment on, or with respect to any conversion
right of, the debt securities of such series. However, the trustee
must consider it to be in the interest of the holders of the debt
securities of such series to withhold this notice.
Unless
we indicate otherwise in a prospectus supplement, if an event of
default, other than an event of default described in clause (5)
above, shall occur and be continuing with respect to any series of
debt securities, either the trustee or the holders of at least a 25
percent 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, 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,
if any, thereon, to be due and payable immediately.
Unless
we indicate otherwise in a prospectus supplement, if an event of
default described in clause (5) above shall occur, the principal
amount and premium, if any, of all the debt securities of that
series, 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, if any, thereon, 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.”
Notwithstanding
the foregoing, each indenture will provide that we may, at our
option, elect that the sole remedy for an event of default relating
to our failure to comply with our obligations described under the
section entitled “Reports” below or our failure to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act will
for the first 180 days after the occurrence of such an event of
default consist exclusively of the right to receive additional
interest on the relevant series of debt securities at an annual
rate equal to (i) 0.25% of the principal amount of such series of
debt securities for the first 90 days after the occurrence of such
event of default and (ii) 0.50% of the principal amount of such
series of debt securities from the 91st day to, and including, the
180th day after the occurrence of such event of default, which we
call “additional interest.” If we so elect, the additional interest
will accrue on all outstanding debt securities from and including
the date on which such event of default first occurs until such
violation is cured or waived and shall be payable on each relevant
interest payment date to holders of record on the regular record
date immediately preceding the interest payment date. On the 181st
day after such event of default (if such violation is not cured or
waived prior to such 181st day), the debt securities will be
subject to acceleration as provided above. In the event we do not
elect to pay additional interest upon any such event of default in
accordance with this paragraph, the debt securities will be subject
to acceleration as provided above.
In
order to elect to pay the additional interest as the sole remedy
during the first 180 days after the occurrence of any event of
default relating 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.
After
acceleration, the holders of a majority in aggregate principal
amount of the outstanding securities of that series may, under
certain circumstances, rescind and annul such acceleration if all
events of default, other than the non-payment of accelerated
principal, or other specified amounts or interest, have been cured
or waived.
Other
than the duty to act with the required care during an event of
default, the trustee will not be obligated to exercise any of its
rights or powers at the request of the holders unless the holders
shall have offered to the trustee reasonable indemnity. Generally,
the holders of a majority in aggregate principal amount of the
outstanding debt securities of any series will have the right to
direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or
power conferred on the trustee.
A
holder of debt securities of any series will not have any right to
institute any proceeding under the indentures, or for the
appointment of a receiver or a trustee, or for any other remedy
under the indentures, unless:
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the
holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of
that series; |
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(2) |
the
holders of at least 25 percent in aggregate principal amount of the
outstanding debt securities of that series have made a written
request and have offered reasonable indemnity to the trustee to
institute the proceeding; and |
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the
trustee has failed to institute the proceeding and has not received
direction inconsistent with the original request from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series within 60 days after the original
request. |
Holders
may, however, sue to enforce the payment of principal, premium 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
listed in (1) through (3) above.
We
will furnish the trustee an annual statement from our officers as
to whether or not we are in default in the performance of the
conditions and covenants under the indenture and, if so, specifying
all known defaults.
Modification
and waiver
Unless
we indicate otherwise in a prospectus supplement, the applicable
trustee and we may make modifications and amendments to an
indenture with the consent of the holders of a majority in
aggregate principal amount of the outstanding securities of each
series affected by the modification or amendment.
We
may also make modifications and amendments to the indentures for
the benefit of holders without their consent, for certain purposes
including, but not limited to:
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providing
for our successor to assume the covenants under the
indenture;
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adding
covenants or events of default;
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making
certain changes to facilitate the issuance of the
securities;
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securing
the securities;
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providing
for a successor trustee or additional trustees;
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curing
any ambiguities or inconsistencies;
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providing
for guaranties of, or additional obligors on, the
securities;
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permitting
or facilitating the defeasance and discharge of the securities;
and
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other
changes specified in the indenture.
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However,
neither the trustee nor we may make any modification or amendment
without the consent of the holder of each outstanding security of
that series affected by the modification or amendment if such
modification or amendment would:
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change
the stated maturity of any debt security;
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reduce
the principal, premium, if any, or interest on any debt security or
any amount payable upon redemption or repurchase, whether at our
option or the option of any holder, or reduce the amount of any
sinking fund payments;
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reduce
the principal of an original issue discount security or any other
debt security payable on acceleration of maturity;
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change
the place of payment or the currency in which any debt security is
payable;
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impair
the right to enforce any payment after the stated maturity or
redemption date;
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if
subordinated debt securities, modify the subordination provisions
in a materially adverse manner to the holders;
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adversely
affect the right to convert any debt security if the debt security
is a convertible debt security; or
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change
the provisions in the indenture that relate to modifying or
amending the indenture. |
Satisfaction
and discharge; defeasance
We
may be discharged from our obligations on the debt securities,
subject to limited exceptions, of any series that have matured or
will mature or be redeemed within one year if we deposit enough
money with the trustee to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the
debt securities.
Each
indenture contains a provision that permits us to elect either or
both of the following:
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we
may elect to be discharged from all of our obligations, subject to
limited exceptions, with respect to any series of debt securities
then outstanding. If we make this election, the holders of the debt
securities of the series will not be entitled to the benefits of
the indenture, except for the rights of holders to receive payments
on debt securities or the registration of transfer and exchange of
debt securities and replacement of lost, stolen or mutilated debt
securities.
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we
may elect to be released from our obligations under some or all of
any financial or restrictive covenants applicable to the series of
debt securities to which the election relates and from the
consequences of an event of default resulting from a breach of
those covenants. |
To
make either of the above elections, we must irrevocably deposit in
trust with the trustee enough money to pay in full the principal,
interest and premium on the debt securities. This amount may be
made in cash and/or U.S. government obligations or, in the case of
debt securities denominated in a currency other than U.S. dollars,
cash in the currency in which such series of securities is
denominated and/or foreign government obligations. As a condition
to either of the above elections, 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.
With
respect to debt securities of any series that are denominated in a
currency other than United States dollars, “foreign government
obligations” means:
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direct
obligations of the government that issued or caused to be issued
the currency in which such securities are denominated and for the
payment of which obligations its full faith and credit is pledged,
or, with respect to debt securities of any series which are
denominated in Euros, direct obligations of certain members of the
European Union for the payment of which obligations the full faith
and credit of such members is pledged, which in each case are not
callable or redeemable at the option of the issuer thereof;
or
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obligations
of a person controlled or supervised by or acting as an agency or
instrumentality of a government described in the bullet above the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which are not
callable or redeemable at the option of the issuer
thereof.
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Reports
The
indentures provide that any reports or documents that we file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act will be
filed with the trustee within 15 days after the same is filed with
the SEC. Documents filed by us with the SEC via the EDGAR system
will be deemed filed with the trustee as of the time such documents
are filed with the SEC.
Notices
Notices
to holders will be given by mail to the addresses of the holders in
the security register.
Governing
law
The
indentures and the debt securities will be governed by, and
construed under, the laws of the State of New York.
No
personal liability of directors, officers, employees and
stockholders
No
incorporator, stockholder, employee, agent, officer, director or
subsidiary of ours will have any liability for any obligations of
ours, or because of the creation of any indebtedness under the debt
securities, the indentures or supplemental indentures. The
indentures provide that all such liability is expressly waived and
released as a condition of, and as a consideration for, the
execution of such indentures and the issuance of the debt
securities.
Regarding
the trustee
The
indentures limit the right of the trustee, should it become our
creditor, to obtain payment of claims or secure its
claims.
The
trustee will be permitted to engage in certain other transactions
with us. However, if the trustee acquires any conflicting interest,
and there is a default under the debt securities of any series for
which it is trustee, the trustee must eliminate the conflict or
resign.
Subordinated
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
indebtedness evidenced by the subordinated debt securities of any
series is subordinated, to the extent provided in the subordinated
indenture and the applicable prospectus supplement, to the prior
payment in full, in cash or other payment satisfactory to the
holders of senior debt, of all senior debt, including any senior
debt securities.
Upon
any distribution of our assets upon any dissolution, winding up,
liquidation or reorganization, whether voluntary or involuntary,
marshalling of assets, assignment for the benefit of creditors, or
in bankruptcy, insolvency, receivership or other similar
proceedings, payments on the subordinated debt securities will be
subordinated in right of payment to the prior payment in full in
cash or other payment satisfactory to holders of senior debt of all
senior debt.
In
the event of any acceleration of the subordinated debt securities
of any series because of an event of default with respect to the
subordinated debt securities of that series, holders 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.
In
addition, the subordinated debt securities will be structurally
subordinated to all indebtedness and other liabilities of our
subsidiaries, including trade payables and lease obligations. This
occurs because our right to receive any assets of our subsidiaries
upon their liquidation or reorganization, and your right to
participate in those assets, will be effectively subordinated to
the claims of that subsidiary’s creditors, including trade
creditors, except to the extent that we are recognized as a
creditor of such subsidiary. If we are recognized as a creditor of
that subsidiary, our claims would still be subordinate to any
security interest in the assets of the subsidiary and any
indebtedness of the subsidiary senior to us.
We
are required to promptly notify holders of senior debt or their
representatives under the subordinated indenture if payment of the
subordinated debt securities is accelerated because of an event of
default.
Under
the subordinated indenture, we may also not make payment on the
subordinated debt securities if:
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a
default in our obligations to pay principal, premium, if any,
interest or other amounts on our senior debt occurs and the default
continues beyond any applicable grace period, which we refer to as
a payment default; or
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any
other default occurs and is continuing with respect to designated
senior debt that permits holders of designated senior debt to
accelerate its maturity, which we refer to as a non-payment
default, and the trustee receives a payment blockage notice from us
or some other person permitted to give the notice under the
subordinated indenture.
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We
will resume payments on the subordinated debt
securities:
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in
case of a payment default, when the default is cured or waived or
ceases to exist, and
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in
case of a nonpayment default, the earlier of when the default is
cured or waived or ceases to exist or 179 days after the receipt of
the payment blockage notice. |
No
new payment blockage period may commence on the basis of a
nonpayment default unless 365 days have elapsed from the
effectiveness of the immediately prior payment blockage notice. No
nonpayment default that existed or was continuing on the date of
delivery of any payment blockage notice to the trustee shall be the
basis for a subsequent payment blockage notice.
As a
result of these subordination provisions, in the event of our
bankruptcy, dissolution or reorganization, holders of senior debt
may receive more, ratably, and holders of the subordinated debt
securities may receive less, ratably, than our other creditors. The
subordination provisions will not prevent the occurrence of any
event of default under the subordinated indenture.
The
subordination provisions will not apply to payments from money or
government obligations held in trust by the trustee for the payment
of principal, interest and premium, if any, on subordinated debt
securities pursuant to the provisions described under the section
entitled “Satisfaction and discharge; defeasance,” if the
subordination provisions were not violated at the time the money or
government obligations were deposited into trust.
If
the trustee or any holder receives any payment that should not have
been made to them in contravention of subordination provisions
before all senior debt is paid in full in cash or other payment
satisfactory to holders of senior debt, then such payment will be
held in trust for the holders of senior debt.
Senior
debt securities will constitute senior debt under the subordinated
indenture.
Additional
or different subordination provisions may be described in a
prospectus supplement relating to a particular series of debt
securities.
Definitions
“Designated
senior debt” means our obligations under any particular senior debt
in which the instrument creating or evidencing the same or the
assumption or guarantee thereof, or related agreements or documents
to which we are a party, expressly provides that such indebtedness
shall be designated senior debt for purposes of the subordinated
indenture. The instrument, agreement or other document evidencing
any designated senior debt may place limitations and conditions on
the right of such senior debt to exercise the rights of designated
senior debt.
“Indebtedness”
means the following, whether absolute or contingent, secured or
unsecured, due or to become due, outstanding on the date of the
indenture for such series of securities or thereafter created,
incurred or assumed:
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our
indebtedness evidenced by a credit or loan agreement, note, bond,
debenture or other written obligation;
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all
of our obligations for money borrowed;
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all
of our obligations evidenced by a note or similar instrument given
in connection with the acquisition of any businesses, properties or
assets of any kind,
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our
obligations:
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as
lessee under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles,
or
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as
lessee under leases for facilities, capital equipment or related
assets, whether or not capitalized, entered into or leased for
financing purposes;
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all
of our obligations under interest rate and currency swaps, caps,
floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements;
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all
of our obligations with respect to letters of credit, bankers’
acceptances and similar facilities, including reimbursement
obligations with respect to the foregoing;
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all
of our obligations issued or assumed as the deferred purchase price
of property or services, but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of
business;
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all
obligations of the type referred to in the above clauses of another
person, the payment of which, in either case, we have assumed or
guaranteed, for which we are responsible or liable, directly or
indirectly, jointly or severally, as obligor, guarantor or
otherwise, or which are secured by a lien on our property;
and
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renewals,
extensions, modifications, replacements, restatements and
refundings of, or any indebtedness or obligation issued in exchange
for, any such indebtedness or obligation described in the above
clauses of this definition.
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“Senior
debt” means the principal of, premium, if any, and interest,
including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such
proceeding, and rent payable on or in connection with, and all fees
and other amounts payable in connection with, our indebtedness.
However, senior debt shall not include:
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any
debt or obligation if its terms or the terms of the instrument
under which or pursuant to which it is issued expressly provide
that it shall not be senior in right of payment to the subordinated
debt securities or expressly provide that such indebtedness is on
the same basis or “junior” to the subordinated debt securities;
or
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debt
to any of our subsidiaries, a majority of the voting stock of which
is owned, directly or indirectly, by us.
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“Subsidiary”
means a corporation more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by us or by one or more
or our other subsidiaries or by a combination of us and our other
subsidiaries. For purposes of this definition, “voting stock” means
stock or other similar interests which ordinarily has or have
voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no
senior class of stock or other interests has or have such voting
power by reason of any contingency.
DESCRIPTION OF THE
UNITS
General
At
our option, we may elect to issue units comprised of common stock,
preferred stock, depositary shares, warrants, debt securities, or
any combination thereof. 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.
The
summary of terms of the units contained in this section of the
prospectus is not complete, and is subject to modification in any
prospectus supplement for any issuance of Units. We will describe
in the applicable prospectus supplement the terms of the series of
units, including:
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the
designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately;
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Any
provisions of the governing unit agreement that differ from those
described below; and
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Any
provisions for the issuance, settlement, transfer or exchange of
the units or of the securities comprising the units. |
In
addition, the provisions described under “Description of Capital
Stock,” “Description of the Depositary Shares,” “Description of the
Warrants” and “Description of the Debt Securities” will apply to
each unit and to any common stock, preferred stock, debt security
or warrants included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct
series as we determine.
Enforceability
of Rights by Holders of Units
Any
unit agent will act solely as our agent under the applicable unit
agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust
company may act as unit agent for more than one series of units. A
unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a
unit may, without the consent of the related unit agent or the
holder of any other unit, enforce by appropriate legal action its
rights as holder under any security included in the
unit.
Title
We,
any unit agents and any of their agents may treat the registered
holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the units so
requested, despite any notice to the contrary.
Outstanding
Units
We
have no outstanding units.
PLAN OF DISTRIBUTION
We
may sell the securities offered through this prospectus (1) to or
through underwriters or dealers, (2) directly to purchasers,
including our affiliates, (3) through agents, or (4) through a
combination of any these methods. The securities may be distributed
at a fixed price or prices, which may be changed, market prices
prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. The prospectus supplement will
include the following information:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
name or names of any managing underwriter or
underwriters;
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the
purchase price of the securities;
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the
net proceeds from the sale of the securities;
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any
delayed delivery arrangements;
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any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
commissions paid to agents.
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Sale
through underwriters or dealers
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account, including through
underwriting, purchase, security lending or repurchase agreements
with us. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order 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 underwriters to
purchase the securities will be subject to certain conditions, and
the underwriters will be obligated to purchase all the 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.
If
dealers are used in the sale of securities offered through this
prospectus, we will sell the securities to them as principals. They
may then resell those securities to the public at varying prices
determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of
the transaction.
Direct
sales and sales through agents
We
may sell the securities offered through this prospectus directly.
In this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. The prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any
commissions payable to the agent. Unless otherwise indicated in the
prospectus supplement, any agent will agree to use its reasonable
best efforts to solicit purchases for the period of its
appointment.
We
may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale of those securities.
The terms of any such sales will be described in the prospectus
supplement.
Underwriter,
dealer or agent discounts and commissions
Underwriters,
dealers or agents may receive compensation in the form of
discounts, concessions or commissions from us or our purchasers as
their agents in connection with the sale of securities. These
underwriters, dealers or agents may be considered to be
underwriters under the Securities Act. As a result, discounts,
commissions, or profits on resale received by the underwriters,
dealers or agents may be treated as underwriting discounts and
commissions. Each prospectus supplement will identify any such
underwriter, dealer or agent, and describe any compensation
received by them from us. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time. The maximum commission or
discount to be received by any underwriter, dealer or agent will
not be greater than eight percent (8%) of the maximum gross
proceeds of the securities that may be sold under this
prospectus.
Delayed
delivery contracts
If
the prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price
under delayed delivery contracts. These contracts would provide for
payment and delivery on a specified date in the future. The
contracts would be subject only to those conditions described in
the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
Market
making, stabilization and other transactions
Unless
the applicable prospectus supplement states otherwise, each series
of offered securities will be a new issue and will have no
established trading market. We may elect to list any series of
offered securities on an exchange. Any underwriters that we use in
the sale of offered securities may make a market in such
securities, but may discontinue such market making at any time
without notice. Therefore, we cannot assure you that the securities
will have a liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with Rule 104
under the Securities Exchange Act. Stabilizing transactions involve
bids to purchase the underlying security in the open market for the
purpose of pegging, fixing or maintaining the price of the
securities. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been
completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
Derivative
transactions and hedging
We,
the underwriters or other agents may engage in derivative
transactions involving the securities. These derivatives may
consist of short sale transactions and other hedging activities.
The underwriters or agents may acquire a long or short position in
the securities, hold or resell securities acquired and purchase
options or futures on the securities and other derivative
instruments with returns linked to or related to changes in the
price of the securities. In order to facilitate these derivative
transactions, we may enter into security lending or repurchase
agreements with the underwriters or agents. The underwriters or
agents may affect the derivative transactions through sales of the
securities to the public, including short sales, or by lending the
securities in order to facilitate short sale transactions by
others. The underwriters or agents may also use the securities
purchased or borrowed from us or others (or, in the case of
derivatives, securities received from us in settlement of those
derivatives) to directly or indirectly settle sales of the
securities or close out any related open borrowings of the
securities.
Electronic
auctions
We
may also make sales through the Internet or through other
electronic means. Since we may from time to time elect to offer
securities directly to the public, with or without the involvement
of agents, underwriters or dealers, while utilizing the Internet or
other forms of electronic bidding or ordering systems for the
pricing and allocation of such securities, you should pay
particular attention to the description of that system we will
provide in a prospectus supplement.
Such
electronic system may allow bidders to directly participate,
through electronic access to an auction site, by submitting
conditional offers to buy that are subject to acceptance by us, and
which may directly affect the price or other 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 assist in making a bid, such as the
clearing spread at which the offering would be sold, based on the
bids submitted, and whether a bidder’s individual bids would be
accepted, prorated or rejected. For example, 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.
Upon
completion of such an electronic auction process, securities will
be allocated based on prices bid, terms of bid or other factors.
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.
General
information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
The
validity of the securities offered by this prospectus will be
passed upon by Morrison & Foerster LLP, San Francisco,
California.
EXPERTS
The financial statements of Cassava Sciences, Inc. appearing in its
Annual Report (Form 10-K) for the year ended December 31, 2019 have
been audited by Ernst & Young LLP, independent registered
public accounting firm, as set forth in their report thereon,
included therein, and incorporated herein by reference. Such
financial statements as of December 31, 2019 are incorporated
herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and other reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at
http://www.sec.gov. Our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, and Current Reports on Form 8-K, including
any amendments to those reports, and other information that we file
with or furnish to the SEC pursuant to Section 13(a) or 15(d) of
the Exchange Act can also be accessed free of charge through the
Internet by visiting our website at www. www.cassavasciences.com.
These filings will be available as soon as reasonably practicable
after we electronically file such material with, or furnish it to,
the SEC. Information and materials contained on our website,
except for our SEC filings
expressly described below, are not part of this prospectus
and are not incorporated by
reference into this prospectus.
INFORMATION INCORPORATED BY
REFERENCE
The
SEC allows us to incorporate by reference into this prospectus
certain information we file with it, which means that we can
disclose important information by referring you to those documents.
The information incorporated by reference is considered to be a
part of this prospectus, and information that we file later with
the SEC will automatically update and supersede information
contained in this prospectus and any accompanying prospectus
supplement. We incorporate by reference the documents listed below
that we have previously filed with the SEC (excluding any portions
of any Form 8-K that are not deemed “filed” pursuant to the General
Instructions of Form 8-K):
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2019, filed on March 26, 2020;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2020, June 30, 2020 and September 30, 2020, filed on May 6, 2020,
August 12, 2020 and November 9, 2020;
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our
definitive Proxy Statement on Schedule 14A, filed with the SEC on
March 26, 2020;
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our Current Reports on Form 8-K filed with the SEC on May 11, 2020,
May 15, 2020, June 3, 2020, June 19, 2020, September 1, 2020,
September 10, 2020, September 14, 2020, November 4, 2020, November
13, 2020, December 11, 2020, January 6, 2021; and February 8, 2021;
and
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the
description of our common stock contained in our Registration
Statement on Form 8-A as filed with the SEC on March 15, 2000, and
any further amendment or report filed hereafter for the purpose of
updating such description pursuant to Section 12(b) of the Exchange
Act.
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We also incorporate by reference into this prospectus additional
documents that we may file with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the completion or
termination of the offering, including all such documents we may
file with the SEC on or after the date of the initial registration
statement and prior to the effectiveness of the registration
statement, but excluding any information deemed furnished and not
filed with the SEC. Any statements contained in a previously filed
document incorporated by reference into this prospectus is deemed
to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus, or in a
subsequently filed document also incorporated by reference herein,
modifies or supersedes that statement.
We will provide at no cost to each person who requests, including
any beneficial owner, to whom this prospectus is delivered a copy
of any document we incorporate by reference, excluding all exhibits
to such incorporated documents (unless we have specifically
incorporated by reference such exhibits either in this prospectus
or in the incorporated document). You may request a copy of these
filings by telephoning us at (512) 501-2444 or by writing us at the
following address:
Cassava
Sciences, Inc.
7801
N Capital of Texas Highway, Suite 260
Austin,
TX 78731
United
States of America
Attn:
Investor Relations
Part
II
Information
Not Required in the Prospectus
Item
14. Other Expenses of Issuance and Distribution
The
aggregate estimated expenses (other than underwriting discounts and
commissions) which will be paid or have been paid by the Company in
connection with a distribution of securities registered hereby are
as follows:
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Securities
and Exchange Commission registration fee |
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$ |
* |
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FINRA
filing fee |
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** |
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Accounting
fees and expenses |
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** |
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Legal fees
and expenses |
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** |
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Printing
expenses |
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** |
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Transfer
agent fees and expenses |
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** |
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Miscellaneous |
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** |
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Total |
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$ |
* |
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*
The Registrant is registering an indeterminate amount of securities
under this Registration Statement and in accordance with Rules
456(b) and 457(r), the Registrant is deferring payment of all of
the registration fee.
**
The applicable prospectus supplement will set forth the estimated
aggregate amount of expenses payable in respect of any offering of
securities.
Item
15. Indemnification of Directors and Officers
Our
amended and restated certificate of incorporation contains
provisions that eliminate, to the maximum extent permitted by the
General Corporation Law of the State of Delaware, the personal
liability of directors and executive officers for monetary damages
for breach of their fiduciary duties as a director or officer. Our
amended and restated certificate of incorporation and bylaws
provide that we shall indemnify our directors and executive
officers and may indemnify our employees and other agents to the
fullest extent permitted by the General Corporation Law of the
State of Delaware.
Sections
145 and 102(b)(7) of the General Corporation Law of the State of
Delaware provide that a corporation may indemnify any person made a
party to an action by reason of the fact that he or she was a
director, executive officer, employee or agent of the corporation
or is or was serving at the request of the corporation against
expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her
in connection with such action if he or she acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful, except that, in the case of an
action by or in right of the corporation, no indemnification may
generally be made in respect of any claim as to which such person
is adjudged to be liable to the corporation.
We
have entered into indemnification agreements with our directors and
executive officers, in addition to the indemnification provided for
in our amended and restated certificate of incorporation and
bylaws, and intend to enter into indemnification agreements with
any new directors and executive officers in the future.
We
have purchased and intend to maintain insurance on behalf of any
person who is or was a director or officer of our company against
any loss arising from any claim asserted against him or her and
incurred by him or her in any such capacity, subject to certain
exclusions.
See
also the undertakings set out in our response to Item 17
herein.
Item
16. Exhibits
The
following exhibits are filed herewith or incorporated by reference
herein:
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To be
filed by amendment or as an exhibit to a report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
and 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:
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(i) |
To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; |
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(ii) |
To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement; and |
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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) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3
or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the 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 part of the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B,
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to the effective date;
or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer and sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a)
or 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 registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding), is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such
issue.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e)
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the Trust Indenture Act.
Signatures
Pursuant
to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Austin,
State of Texas, on the 10th day of February, 2021.
| |
CASSAVA
SCIENCES, INC. |
| |
|
|
|
By: |
/s/
Remi Barbier |
| |
Name: |
Remi
Barbier |
| |
Title: |
President,
Chief Executive Officer and Chairman of the Board of
Directors |
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
/s/
Remi Barbier |
|
President,
Chief Executive Officer and |
|
February
10, 2021 |
|
Remi
Barbier |
|
Chairman
of the Board of Directors |
|
|
|
|
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
|
|
/s/
Eric Schoen |
|
Chief
Financial Officer |
|
February
10, 2021 |
|
Eric
J. Schoen |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
|
|
/s/
Nadav Friedmann* |
|
Chief
Operating and Medical Officer |
|
February
10, 2021 |
|
Nadav
Friedmann, Ph.D., M.D. |
|
and
Director |
|
|
|
|
|
|
|
|
|
/s/
Robert Z. Gussin* |
|
Director |
|
February
10, 2021 |
|
Robert
Z. Gussin, Ph.D. |
|
|
|
|
|
|
|
|
|
|
|
/s/
Michael J. O’Donnell* |
|
Director |
|
February
10, 2021 |
|
Michael
J. O’Donnell, Esq. |
|
|
|
|
|
|
|
|
|
|
|
/s/
Sanford R. Robertson* |
|
Director |
|
February
10, 2021 |
|
Sanford
R. Robertson |
|
|
|
|
|
|
|
|
|
|
|
/s/
Patrick Scannon* |
|
Director |
|
February
10, 2021 |
|
Patrick
Scannon, M.D., Ph.D. |
|
|
|
|
|
*
By: |
/s/
Remi Barbier |
|
| |
Remi
Barbier |
|
| |
Attorney-in-Fact |
|
