Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-255943
PROSPECTUS
SUPPLEMENT
(To Prospectus dated May 14, 2021)
Up
to $100,000,000
Shares
of Common Stock
We
previously entered into an Open Market Sale AgreementSM, or the Sale Agreement, with Jefferies LLC, or Jefferies, relating
to the sale of shares of our common stock, par value $0.001 per share, offered by this prospectus supplement. In accordance with the
terms of the Sale Agreement, as amended, we may offer and sell shares of our common stock from time to time through Jefferies, acting
as sales agent.
Sales
of the shares of our common stock, if any, under this prospectus supplement will be made by any method permitted that is deemed an “at
the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act.
Jefferies is not required to sell any specific amount, but will act as our sales agent using commercially reasonable efforts consistent
with its normal trading and sales practices. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies
will be entitled to compensation at a commission rate of 3% of the gross sales price of the shares sold under the Sale Agreement. See
“Plan of Distribution” beginning on page S-13 for additional information
regarding the compensation to be paid to Jefferies. In connection with the sale of shares of our common stock on our behalf, Jefferies
will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Jefferies will be
deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Jefferies with
respect to certain liabilities, including civil liabilities under the Securities Act.
Our
common stock trades on the Nasdaq Global Market under the symbol “SESN”. On July 12,
2021, the last reported sale price of our common stock on the Nasdaq Global Market was $3.88
per share.
Investing
in our common stock involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
“Risk Factors” beginning on page S-8 of this prospectus supplement, page 5 of the accompanying base prospectus, and under
similar headings in the documents incorporated by reference into this prospectus supplement and the accompanying base prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined
if this prospectus supplement and the accompanying base prospectus is truthful or complete. Any representation to the contrary is a criminal
offense.
Jefferies
The
date of this prospectus supplement is July 14, 2021
TABLE
OF CONTENTS
PROSPECTUS SUPPLEMENT
Page
PROSPECTUS
EXPLANATORY
NOTE
On
June 1, 2021, we entered into Amendment No. 3 to the Sale Agreement pursuant to which we may offer and sell shares of our common
stock from time to time through Jefferies. Also on June 1, 2021, we filed with the Securities and Exchange Commission, or SEC, a
separate prospectus supplement for the offer and sale of up to $100,000,000 of shares of our common stock pursuant to the Sale
Agreement, or the June 2021 Prospectus Supplement, under our shelf registration statement on Form S-3 (Registration Statement No.
333-255943) that was declared effective by the SEC on May 14, 2021. The terms of such offering are contained in the June 2021
Prospectus Supplement. As of the date of this prospectus supplement, we have sold approximately $69.6 million of shares of our
common stock pursuant to the Sale Agreement under the June 2021 Prospectus Supplement. Therefore, approximately $30.4 million of
shares of our common stock remain available for issuance pursuant to the Sale Agreement under the June 2021 Prospectus Supplement.
Up to $100,000,000 of additional shares of our common stock are being offered by this prospectus supplement.
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
document is in two parts. The first part is this prospectus supplement, which describes the terms of this offering of shares of our common
stock and also adds to and updates information contained in the accompanying base prospectus and the documents incorporated by reference
into this prospectus supplement and the accompanying base prospectus. The second part, the accompanying base prospectus, dated May 14,
2021, including the documents incorporated by reference into it, provides more general information, some of which may not apply to the
shares of common stock offered by this prospectus supplement. Generally, when we refer to this “prospectus”, we are referring
to both parts of this document combined.
To
the extent there is a conflict between the information contained in this prospectus supplement, on the one hand, and the information
contained in the accompanying base prospectus or in any document incorporated by reference that was filed with the SEC before the date
of this prospectus supplement, on the other hand, or the information contained in any free writing prospectus prepared by us or on our
behalf that we have authorized for use in connection with this offering, you should rely on the information in this prospectus supplement.
If any statement in one of these documents is inconsistent with a statement in another document having a later date – for example,
a document incorporated by reference in this prospectus supplement or the accompanying base prospectus – the statement in the document
having the later date modifies or supersedes the earlier statement unless otherwise specified.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference into this prospectus were made solely for the benefit of the parties to such agreement, including,
in some cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
You
should rely only on the information contained in or incorporated by reference into this prospectus and any free writing prospectus prepared
by us or on our behalf that we have authorized for use in connection with this offering. We have not, and Jefferies has not, authorized
any dealer, salesperson or other person to provide any information or to make any representation other than those contained or incorporated
by reference into this prospectus or into any free writing prospectus prepared by or on our behalf or to which we have referred you.
If anyone provides you with additional, different or inconsistent information, you should not rely on it. We and Jefferies take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not, and Jefferies
is not, making an offer to sell shares of our common stock in any jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing or incorporated by reference into this prospectus or in any free writing prospectus prepared by us or
on our behalf that we have authorized for use in connection with this offering is accurate only as of the date of each such respective
document. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read
this prospectus, including the documents incorporated by reference herein, and any free writing prospectus prepared by us or on our behalf
that we have authorized for use in connection with this offering, in their entirety before making an investment decision. You should
also read and consider the information in the documents we have referred you to in the sections of this prospectus supplement entitled,
“Documents Incorporated By Reference” and “Where You Can Find More Information” and the sections of the accompanying
base prospectus entitled “Incorporation By Reference” and “Where You Can Find Additional Information.”
Other
than in the United States, no action has been taken by us or Jefferies that would permit a public offering of shares of our common stock
offered by this prospectus in any jurisdiction where action for that purpose is required. The shares of our common stock offered by this
prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements
in connection with the offer and sale of the shares be distributed or published in any jurisdiction, except under circumstances that
will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus
comes are advised to inform themselves about and to observe any restrictions relating to this offering and the distribution of this prospectus.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy shares of our common stock offered by this
prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
Unless
stated otherwise or the context otherwise requires, references in this prospectus to “Sesen,” the “Company,”
“we,” “our” and “us” and other similar terms refer to Sesen Bio, Inc. and our wholly owned subsidiaries
through which we conduct our business, unless we state otherwise or the context indicates otherwise. Sesen Bio, Viventia Bio, Vicineum,
Vysyneum and the Viventia and Sesen logos are our trademarks. We may indicate U.S. trademark registrations and U.S. trademarks with the
symbol “™”. Other third-party logos and product/trade names are registered trademarks or trade names of their respective
owners.
FORWARD-LOOKING
STATEMENTS
This
prospectus supplement and the accompanying base prospectus contain “forward-looking statements” or “forward-looking
information” within the meaning of applicable securities laws (we collectively refer to these items as “forward-looking statements”).
Forward-looking statements are generally identifiable by use of the words “believes,” “goals,” “may,”
“might,” “plans,” “predicts,” “will,” “would,” “anticipates,”
“intends,” “budgets,” “could,” “should,” “estimates,” “continues,”
“expects,” “forecasts,” “targets,” “potential,” “projects” and similar expressions
that are not based on historical fact or that are predictions of or indicate future events and trends, and the negative of such expressions.
Forward-looking statements in this prospectus supplement and the accompanying base prospectus, including the documents incorporated by
reference, include statements about, among other things:
|
•
|
|
our
plans and ability to commercialize VicineumTM for the treatment of bacillus Calmette-Guérin, or BCG, unresponsive
non-muscle invasive bladder cancer, or NMIBC, if approved;
|
|
|
|
|
|
•
|
|
the
expectation that the United States Food and Drug Administration, or FDA, will make a decision regarding our Biologics License Application,
or BLA, for Vicineum for the treatment of BCG-unresponsive NMIBC on or before the target Prescription Drug User Fee Act, or PDUFA,
date of August 18, 2021;
|
|
|
|
|
|
•
|
|
the
expectation that the FDA will not hold an advisory committee meeting to discuss the BLA for Vicineum;
|
|
|
|
|
|
•
|
|
our
expectation for the potential commercial launch of Vicineum for the treatment of BCG-unresponsive NMIBC in the U.S., if approved,
by the fourth quarter of 2021;
|
|
|
|
|
|
•
|
|
the
potential impact of the COVID-19 pandemic on our business;
|
|
|
|
|
|
•
|
|
our
expected future loss and accumulated deficit levels;
|
|
|
|
|
|
•
|
|
the
difficulties and expenses associated with obtaining and maintaining regulatory approval of Vicineum for the treatment of BCG-unresponsive
NMIBC in the United States and other foreign jurisdictions, and the labeling under any approval we may obtain;
|
|
|
|
|
|
•
|
|
our
projected financial position and estimated cash burn rate;
|
|
|
|
|
|
•
|
|
our
estimates regarding expenses, future revenues, capital requirements and needs for, and ability to obtain, additional financing;
|
|
|
|
|
|
•
|
|
our
ability to continue as a going concern;
|
|
|
|
|
|
•
|
|
our
need to raise substantial additional capital to fund our operations;
|
|
|
|
|
|
•
|
|
the
potential impairment of our goodwill and indefinite lived intangible assets;
|
|
|
|
|
|
•
|
|
the
success, cost and timing of our pre-clinical studies and clinical trials in the United States and other foreign jurisdictions;
|
|
|
|
|
|
•
|
|
the
potential that results of pre-clinical studies and clinical trials indicate our product candidates are unsafe or ineffective;
|
|
|
|
|
|
•
|
|
our
dependence on third parties, including contract research organizations in the conduct of our pre-clinical studies and clinical trials;
|
|
|
|
|
|
•
|
|
the
timing and costs associated with our manufacturing process and technology transfer to FUJIFILM Diosynth Biotechnologies
U.S.A., Inc., or Fujifilm, for the production of Vicineum drug substance, and our reliance on Fujifilm to perform under our agreement
with Fujifilm;
|
|
|
|
|
|
•
|
|
the
timing and costs associated with our manufacturing process and technology transfer to Baxter Oncology GmbH, or Baxter, for the production
of Vicineum drug product, and our reliance on Baxter to perform under our agreement with Baxter;
|
|
|
|
|
|
•
|
|
the
timing and costs associated with our manufacturing process and technology transfer to Qilu Pharmaceutical Co., Ltd. (“Qilu”)
for the production of Vicineum drug substance and drug product, and our reliance on Qilu to perform under our agreement with Qilu;
|
|
|
|
|
|
•
|
|
our
expectation that the FDA will determine that the commercial supply of Vicineum is comparable to the clinical supply of
Vicineum, and that no additional clinical trials are warranted;
|
|
|
|
|
|
•
|
|
market
acceptance of our product candidates, including Vicineum for the treatment of BCG-unresponsive NMIBC, the size and growth of the
potential markets for our product candidates, and our ability to serve those markets;
|
|
|
|
|
|
•
|
|
obtaining
and maintaining intellectual property protection for our product candidates and our proprietary technology;
|
|
|
|
|
|
•
|
|
the
successful development of our commercialization capabilities, including sales and marketing capabilities for Vicineum for the treatment
of BCG-unresponsive NMIBC in the United States;
|
|
|
|
|
|
•
|
|
our
expectation that the European Medicines Agency, or EMA, will potentially approve our marketing authorization application for Vicineum
(under the proprietary brand name VysyneumTM, which has been conditionally approved by the EMA) for the treatment of BCG-unresponsive
NMIBC in early 2022;
|
|
|
|
|
|
•
|
|
our
expectations regarding the amount and timing of milestone and royalty payments pursuant to our out-license agreements and business
development partnership agreements, including our license agreement with F. Hoffmann-La Roche Ltd and Hoffmann-La Roche Inc. and
our exclusive license agreement with Qilu Pharmaceutical Co., Ltd. for the development, manufacture and commercialization of Vicineum
in Greater China;
|
|
|
|
|
|
•
|
|
our
plans to seek additional business development partnerships;
|
|
|
|
|
|
•
|
|
the
success of competing therapies and products that are or become available; and
|
|
|
|
|
|
•
|
|
our
use of proceeds from this offering.
|
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place
undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations
disclosed in the forward-looking statements we make.
Risks
and other important factors that could cause actual results or events to differ materially from those indicated in our forward-looking
statements include the following:
|
•
|
|
we
may not achieve profitable operations or access needed capital;
|
|
|
|
|
|
•
|
|
clinical
trials of Vicineum for the treatment of BCG-unresponsive NMIBC may not demonstrate safety and efficacy to the satisfaction of the
FDA or other foreign regulatory authorities or otherwise produce favorable results;
|
|
|
|
|
|
•
|
|
we
may not obtain marketing approval of Vicineum for the treatment of BCG-unresponsive NMIBC in the United States or other foreign jurisdictions;
|
|
|
|
|
|
•
|
|
Vicineum
may not gain market acceptance for the treatment of BCG-unresponsive NMIBC in the United States or other foreign jurisdictions;
|
|
|
|
|
|
•
|
|
market
opportunity for Vicineum may be limited to those patients who are ineligible for established therapies or for whom prior therapies
have failed;
|
|
|
|
|
|
•
|
|
we
may experience issues or delays with implementation of commercial-scale manufacturing of Vicineum;
|
|
|
|
|
|
•
|
|
we
may be unable to establish sales, marketing and distribution capabilities or scale up and validate external manufacturing capabilities
of Vicineum (including completing the manufacturing process and technology transfer to any third-party manufacturers) for the treatment
of BCG-unresponsive NMIBC in the United States;
|
|
|
|
|
|
•
|
|
our
competitors may discover, develop or commercialize products before, or more successfully than, we do;
|
|
|
|
|
|
•
|
|
we
may be unable to obtain, maintain, defend and enforce patent claims and other intellectual property rights;
|
|
|
|
|
|
•
|
|
we
may fail to comply with all regulatory requirements or experience unanticipated problems with our products; and
|
|
|
|
|
|
•
|
|
other
factors described in the cautionary statements included in this prospectus supplement and the accompanying base prospectus under
the heading “Risk Factors”, and in the documents incorporated by reference into this prospectus supplement and the accompanying
base prospectus.
|
Moreover,
we operate in a very competitive and rapidly changing environment, and new risks emerge from time to time. It is not possible for us
to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially and adversely from those contained in any forward-looking statements we may make.
In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus may
not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.
You
should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events
and circumstances reflected in the forward-looking statements will be achieved or occur. Moreover, neither we nor any other person assumes
responsibility for the accuracy and completeness of the forward-looking statements. Except as required by law, we undertake no obligation
to update publicly any forward-looking statements for any reason after the date of this prospectus, including to conform these statements
to actual results or to changes in our expectations.
You
should read this prospectus, including the documents incorporated by reference herein, and any free writing prospectus prepared by us
or on our behalf that we have authorized for use in connection with this offering with the understanding that our actual future results,
levels of activity, performance and events and circumstances may be materially different from what we expect. We qualify all forward-looking
statements by these cautionary statements.
SUMMARY
This summary highlights certain
information about us, this offering and selected information contained elsewhere in or incorporated by reference into this prospectus
supplement and the accompanying base prospectus. This summary is not complete and does not contain all of the information that you should
consider in making your investment decision. For a more complete understanding of our company and this offering, you should read carefully
this entire prospectus supplement and the accompanying base prospectus, including the information incorporated by reference into this prospectus supplement and the accompanying base prospectus, and any free writing prospectus prepared by us or on our behalf that we have authorized for use in connection with this offering,
including the “Risk Factors” section beginning on page S-8 of this prospectus
supplement, page 5 of the accompanying base prospectus, our consolidated financial statements and the related notes and the other
documents incorporated by reference into this prospectus supplement and the accompanying base prospectus.
Overview
We are a late-stage clinical
company advancing targeted fusion protein therapeutics, or TFPTs, for the treatment of patients with cancer. We genetically fuse the targeting
antibody fragment and the cytotoxic protein payload into a single molecule that is produced through our proprietary one-step, microbial
manufacturing process. We target tumor cell surface antigens with limited expression on normal cells. Binding of the target antigen by
the TFPT allows for rapid internalization into the targeted cancer cell. We have designed our targeted proteins to overcome the fundamental
efficacy and safety challenges inherent in existing antibody-drug conjugates where a payload is chemically attached to a targeting antibody.
Our most advanced product
candidate, Vicineum, also known as VB4-845, is a locally-administered targeted fusion protein composed of an anti-epithelial cell adhesion
molecule antibody fragment tethered to a truncated form of Pseudomonas exotoxin A for the treatment of BCG-unresponsive
NMIBC. On December 18, 2020, we submitted the completed BLA for Vicineum to the FDA. On February 12, 2021, the FDA notified us that it
has accepted for filing the BLA. The FDA also granted Priority Review for the BLA and the target PDUFA date for a decision on the BLA
is August 18, 2021. In addition to the file acceptance and granting of Priority Review, the FDA also indicated that it is not currently
planning to hold an advisory committee meeting to discuss the BLA for Vicineum.
Corporate Information
We were incorporated under the
laws of the state of Delaware on February 25, 2008 under the name NewCo LS14, Inc. We subsequently changed our name to DeNovo Therapeutics,
Inc. in September 2008, to Eleven Biotherapeutics, Inc. in February 2010 and to Sesen Bio, Inc. in May 2018. Our principal executive offices
are located at 245 First Street, Suite 1800, Cambridge, Massachusetts 02142, and our telephone number is (617) 444-8550. Our website
address is www.sesenbio.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus
supplement. We have included our website address in this prospectus supplement solely as an inactive textual reference.
THE OFFERING
Common stock offered by us:
|
Shares having an aggregate offering price of up to $100,000,000.
|
|
|
Common stock to be outstanding
following the offering:
|
Up to 205,597,618 shares
(as more fully described below in “Outstanding Shares”), assuming sales of (i) 7,845,623 shares of our common stock in the offering under the June 2021 Prospectus Supplement and (ii) 25,773,196 shares of our common stock in this
offering at an offering price of $3.88 per share, which was the last reported sale price of our common stock on the Nasdaq
Global Market on July 12, 2021. The actual number of shares issued will vary depending on the sales prices
under this offering and the offering under the June 2021 Prospectus Supplement.
|
|
|
Manner of offering:
|
“At the market offering” that may be made from time to time on the Nasdaq Global Market or other existing trading markets for our common stock through our sales agent, Jefferies. See “Plan of Distribution” on page S-13 of this prospectus supplement.
|
|
|
Use of proceeds:
|
We intend to use the net proceeds from this offering for the preparation for and commercialization of Vicineum, if approved, in the United States for the treatment of BCG-unresponsive NMIBC, for regulatory activities in support of obtaining FDA approval for Vicineum in the United States for the treatment of BCG-unresponsive NMIBC, regulatory activities in support of obtaining EMA approval for Vicineum in the European Union for the treatment of BCG-unresponsive NMIBC (under the proprietary brand name Vysyneum, which has been conditionally approved by the EMA), and general corporate purposes, which may include capital expenditures and other operating expenses. See “Use of Proceeds.”
|
|
|
Risk factors:
|
Investing in our common
stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk
Factors” beginning on page S-8 of this prospectus supplement, the “Risk Factors”
section beginning on page 5 of the accompanying base prospectus and the documents incorporated by referenced into this prospectus supplement
and the accompanying base prospectus.
|
|
|
Nasdaq Global Market symbol:
|
“SESN”
|
Outstanding Shares
|
The number of shares of our
common stock to be outstanding after this offering is based on 171,978,799 shares of our common stock outstanding as of March 31, 2021,
and excludes:
• 14,379,634
shares of our common stock issuable upon the exercise of stock options outstanding as of March 31, 2021 at a weighted-average exercise
price of $1.82 per share plus 3,122,800 shares of our common stock issuable upon the exercise of stock options granted subsequent to
March 31, 2021 and through July 12, 2021;
• 1,393,754
shares of our common stock issuable upon the exercise of common stock warrants outstanding as of March 31, 2021 at a weighted-average
exercise price of $0.98 per share less 1,195,219 shares of our common stock that were issued upon the exercise of common stock warrants
subsequent to March 31, 2021 and through July 12, 2021;
• 760,162
shares of our common stock available for future issuance under our 2014 Stock Incentive Plan, or 2014 Plan, as of March 31, 2021 (i)
less 470,000 shares of our common stock issuable upon the exercise of stock options granted subsequent to March 31, 2021 and through
July 12, 2021 and (ii) plus 12,000,000 shares of our common stock that became available
for future issuance under the 2014 Plan as of May 3, 2021 pursuant to an amendment thereto;
• 2,300,000 shares of our common stock that became available for future issuance under our 2014 Employee Stock Purchase Plan, or 2014 ESPP,
as of May 3, 2021 pursuant to an amendment thereto; and
• 18,023,198
shares of our common stock issued under the Sale Agreement subsequent to March 31, 2021 through July 12,
2021 at a weighted-average price of $4.05 per share.
|
RISK
FACTORS
Investing
in our common stock is speculative and involves a high degree of risk. Before making an investment decision, you should carefully consider
the risks described in this prospectus supplement and the accompanying base prospectus, including the documents incorporated by reference
into this prospectus supplement and the accompanying base prospectus, including the “Risk Factors” section of our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference into this prospectus supplement and
the accompanying base prospectus, as updated by annual, quarterly and other reports and documents we file with the SEC after the date
of this prospectus supplement and that are incorporated by reference into this prospectus supplement and the accompanying base prospectus. If any of these risks actually occurs, our business, financial condition or results of operations could be materially adversely
affected. These risks and uncertainties are not the only ones faced by us. Additional risks and uncertainties, including those of which
we are currently unaware or that are currently deemed immaterial, may also materially and adversely affect our business, financial condition,
cash flows, prospects and the price of our common stock.
Risks
Related to this Offering and the Ownership of Our Common Stock
A
substantial number of shares of our common stock may be sold in the market following this offering, which may depress the market price
for our common stock.
Sales of a substantial
number of shares of our common stock in the public market following this offering could cause the market price of our common stock
to decline. Although there can be no assurance that any of the $100.0 million of shares of our common stock being offered under this
prospectus supplement, or approximately $30.4 million of shares of our common stock that remain available for issuance under the June 2021 Prospectus Supplement, will be sold or the price at which any such shares might be sold, assuming that an aggregate of (i) 7,845,623 shares of our common stock are sold pursuant to the June 2021 Prospectus Supplement and (ii) 25,773,196 shares of common
stock in this offering shares
of our common stock are sold pursuant to this prospectus supplement, in each case, for example, at a price of $3.88 per
share, the last reported sale price of our common stock on the Nasdaq Global Market on July 12,
2021, upon completion of this offering, based on 171,978,799 shares outstanding as of March 31, 2021, we will have outstanding an
aggregate of 205,597,618 shares of our common stock, assuming no exercise of outstanding stock options or common stock warrants. A
substantial majority of our outstanding shares of common stock are, and all of the shares sold in this offering upon issuance will
be, freely tradable without restriction or further registration under the Securities Act, unless these shares of common stock are
owned or purchased by “affiliates” as that term is defined in Rule 144 under the Securities Act.
In addition, as of March 31,
2021, there were outstanding (i) stock options to purchase an aggregate of 14,379,634 shares of our common stock at a weighted-average
exercise price of $1.82 per share, of which stock options to purchase 4,802,906 shares of our common stock were then exercisable and (ii) common
stock warrants to purchase 1,393,754 shares of our common stock at a weighted-average exercise price of $0.98 per share, of which all
such common stock warrants were then exercisable. If these securities are exercised, you will incur further dilution.
Moreover, if we issue stock options
or common stock warrants to purchase or acquire our common stock in the future and those stock options or common stock warrants are exercised
you will experience further dilution. Holders of shares of our common stock have no preemptive rights that entitle them to purchase their
pro rata share of any offering of shares of any class or series.
You
may experience future dilution as a result of future equity offerings.
In order to raise additional
capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for shares
of our common stock at prices that may not be the same as the price per share in this offering. We may sell shares of our common stock
or other securities convertible into or exchangeable for shares of our common stock in any other offering at a price per share that is
less than the price per share paid by investors in this offering, and investors purchasing shares of our common stock or other securities
convertible into or exchangeable for shares of our common stock in the future could have rights superior to existing shareholders. The
price per share at which we sell additional shares of our common stock or other securities convertible or exchangeable into shares of
our common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
We
have broad discretion in how we use the net proceeds of this offering, and we may not use these proceeds effectively or in ways with
which you agree.
Our management will have broad
discretion as to the use of the net proceeds from this offering. Because of the number and variability of factors that will determine
our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Accordingly,
you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity,
as part of your investment decision, to assess whether the proceeds will be used appropriately. These net proceeds could be applied in
ways that do not improve our operating results or increase the value of your investment. See “Use of Proceeds” on page S-10
of this prospectus supplement for a description of our proposed use of proceeds from this offering.
Investors
in this offering will experience immediate dilution in the book value per share of our common stock purchased in this offering.
The shares of our common
stock sold in this offering, if any, will be sold from time to time at various prices. However, the expected offering price of our
common stock will be substantially higher than the net tangible book deficit per share of our outstanding common stock. After giving
effect to the sale of (i) shares of our common stock pursuant to the June 2021 Prospectus Supplement in the aggregate amount of
approximately $30.4 million to be sold under the June 2021 Prospectus Supplement and (ii) shares of our common stock in the
aggregate amount of $100.0 million to be sold in this offering, at an assumed offering price of $3.88 per share, the last reported
sale price of our common stock on July 12, 2021 on
the Nasdaq Global Market, and after deducting estimated underwriting discounts and commissions and estimated offering expenses, our
pro forma as adjusted net tangible book value as of March 31, 2021 would have been approximately $146.9 million, or $0.66 per share
of our common stock. This represents an immediate increase in pro forma net tangible book value of approximately $0.95 per share to
our existing shareholders and immediate dilution of approximately $3.22 per share to investors participating in this offering. See
“Dilution” on page S-11 of this
prospectus supplement.
The
actual number of shares we will issue under the Sale Agreement with Jefferies, at any one time or in total, is uncertain.
Subject to certain limitations
in the Sale Agreement with Jefferies and compliance with applicable law, we have the discretion to deliver placement notices to Jefferies
at any time throughout the term of the Sale Agreement. The number of shares that are sold by Jefferies after delivering a placement notice
will fluctuate based on the market price of our common stock during the sales period and limits we set with Jefferies.
We
do not expect to pay dividends in the foreseeable future. As a result, you must rely on stock appreciation for any return on your investment.
We have never paid and do not
anticipate paying cash dividends on shares of our common stock in the foreseeable future. Any payment of cash dividends will also depend
on our financial condition, results of operations, capital requirements and other factors and will be at the discretion of our board of
directors. Accordingly, you will have to rely on capital appreciation, if any, to earn a return on your investment in our common stock.
Furthermore, we may in the future become subject to additional contractual restrictions on, or prohibitions against, the payment of dividends.
USE
OF PROCEEDS
We may issue and sell shares
of our common stock having aggregate sales proceeds of up to $100.0 million from time to time under this prospectus supplement. Because
there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions
and proceeds to us, if any, are not determinable at this time. There can be no assurance that, in the future, we will sell any shares
under or fully utilize the Sale Agreement with Jefferies as a source of financing.
We intend to use the net proceeds
from this offering for the preparation for and commercialization of Vicineum, if approved, in the United States for the treatment of BCG-unresponsive
NMIBC, for regulatory activities in support of obtaining FDA approval for Vicineum in the United States for the treatment of BCG-unresponsive
NMIBC, regulatory activities in support of obtaining EMA approval for Vicineum in the European Union for the treatment of BCG-unresponsive
NMIBC (under the proprietary brand name Vysyneum, which has been conditionally approved by the EMA), and general corporate purposes, which
may include capital expenditures and other operating expenses.
The precise amount and timing
of the application of these net proceeds will depend upon a number of factors, such as the timing and progress of our research and development
efforts and the timing and progress of any partnering efforts. As of the date of this prospectus supplement, we cannot specify with certainty
all of the particular uses for the net proceeds from this offering. Depending on the outcome of our efforts and other unforeseen events,
our plans and priorities may change and we may apply the net proceeds of this offering in different manners than we currently anticipate.
Accordingly, our management will have broad discretion in the timing and application of these net proceeds.
DILUTION
If you invest in our securities
in this offering, you will experience immediate dilution to the extent of the difference between the price per share of our common stock
in this offering and the as adjusted net tangible book value per share of our common stock immediately after this offering.
Our historical net tangible book
deficit as of March 31, 2021 was $50.2 million, or ($0.29) per share of our common stock. We calculate net tangible book deficit per share
by dividing our net tangible book deficit, which is tangible assets less total liabilities, by the number of outstanding shares of our
common stock.
Our pro forma net tangible book
value as of March 31, 2021 was $20.5 million, or $0.11
per share of our common stock. Pro forma net tangible book value per share represents pro forma net tangible book value divided by the
pro forma number of shares of our common stock outstanding, after giving effect to our issuance of 18,023,198
shares of our common stock pursuant to the Sale Agreement subsequent to March 31, 2021 through July 12, 2021.
Dilution per share to new investors
represents the difference between the amount per share paid by investors for our common stock in this offering and the pro forma as adjusted
net tangible book value per share of our common stock immediately following the completion of this offering.
After giving effect to the
assumed sale of (i) shares of our common stock pursuant to the June 2021 Prospectus Supplement in the aggregate amount of approximately $30.4
million to be sold under the June 2021 Prospectus Supplement and (ii) shares of our common stock in the aggregate amount of $100.0
million to be sold in this offering, at an assumed offering price of $3.88 per share, the last reported sale price of our common stock
on July 12, 2021 on the Nasdaq Global Market, and after
deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, our pro forma as adjusted net
tangible book value as of March 31, 2021 would have been approximately $146.9 million, or $0.66 per share of our common stock. This represents
an immediate increase in pro forma net tangible book value of $0.95 per share of our common stock to our existing stockholders and an
immediate dilution of $3.22 per share of our common stock to investors in this offering.
The following table illustrates
this calculation on a per share basis:
Assumed public offering price per share of common stock
|
|
|
|
|
|
$
|
3.88
|
Historical net tangible book deficit per share as of March 31, 2021
|
|
$
|
(0.29
|
)
|
|
|
|
Increase in net tangible book value per share attributable to shares sold pursuant to the Sale Agreement subsequent to March 31, 2021 through July 12, 2021
|
|
$
|
0.40
|
|
|
|
|
Pro forma net tangible book value per share as of March 31, 2021
|
|
$
|
0.11
|
|
|
|
|
Increase in pro
forma net tangible book value per share attributable to investors purchasing (i) shares of our common stock that remain available
for issuance under the June 2021 Prospectus Supplement and (ii) shares of our common stock in this offering
|
|
$
|
0.55
|
|
|
|
|
Pro forma as adjusted net tangible book value per share as of
March 31, 2021, after giving effect to (i) the sale of shares of our common stock that remain available for issuance under the June
2021 Prospectus Supplement and (ii) this offering
|
|
|
|
|
|
$
|
0.66
|
Dilution per share of common stock to investors purchasing shares of our common stock in this offering
|
|
|
|
|
|
$
|
3.22
|
The number of shares of our common
stock to be outstanding after this offering is based on 171,978,799 shares of our common stock outstanding as of March 31, 2021, and excludes:
|
•
|
14,379,634
shares of our common stock issuable upon the exercise of stock options outstanding as of March 31, 2021 at a weighted-average exercise
price of $1.82 per share plus 3,122,800 shares of our common stock issuable upon the exercise of stock options granted subsequent to
March 31, 2021 and through July 12,
2021;
|
|
•
|
1,393,754
shares of our common stock issuable upon the exercise of common stock warrants outstanding as of March 31, 2021 at a weighted-average
exercise price of $0.98 per share less 1,195,219 shares of our common stock that were issued upon the exercise of common stock warrants
subsequent to March 31, 2021 and through July 12,
2021);
|
|
•
|
760,162
shares of our common stock available for future issuance under our 2014 Plan as of March 31, 2021 (i) less 470,000 shares of our common
stock issuable upon the exercise of stock options granted subsequent to March 31, 2021 and through July 12,
2021 and (ii) plus 12,000,000 shares of our common stock that became available for future issuance under the 2014 Plan as of May 3, 2021
pursuant to an amendment thereto;
|
|
•
|
2,300,000 shares of our common stock that became available for future issuance under our 2014 ESPP as of
May 3, 2021 pursuant to an amendment thereto; and
|
|
•
|
18,023,198 shares of our common stock issued under the Sale
Agreement subsequent to March 31, 2021 through July 12, 2021 at a weighted-average price
of $4.05 per share.
|
To the extent that any of our
outstanding common stock warrants or stock options are exercised, new stock options are issued under our 2014 Plan or pursuant to inducement
awards, or we issue additional shares of our common stock in the future, there will be further dilution to investors participating in
this offering. In addition, we may choose to raise additional capital because of market conditions or strategic considerations, even if
we believe that we have sufficient funds for our current or future operating plans. If we raise additional capital through the sale of
equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
PLAN
OF DISTRIBUTION
We have entered into a Sale Agreement,
as amended, with Jefferies, under which we may offer and sell shares of our common stock from time to time through Jefferies acting as
sales agent. Sales of shares of our common stock, if any, under this prospectus supplement and the accompanying base prospectus will be
made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities
Act.
Each time we wish to issue and
sell shares of our common stock under the Sale Agreement, we will notify Jefferies of the number of shares to be issued, the dates on
which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below
which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies
has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to
the amount specified on such terms. The obligations of Jefferies under the Sale Agreement to sell shares of our common stock are subject
to a number of conditions that we must meet.
The settlement of sales of shares
of our common stock between us and Jefferies is generally anticipated to occur on the second trading day following the date on which the
sale was made. Sales of shares of our common stock as contemplated in this prospectus supplement and the accompanying base prospectus
will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There
is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission
equal to 3% of the aggregate gross proceeds we receive from each sale of shares of our common stock in this offering. Because there is
no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds
to us, if any, are not determinable at this time. In addition, we have agreed in the Sale Agreement to reimburse Jefferies for the fees
and disbursements of its counsel in an amount not to exceed $50,000, in addition to an amount up to $15,000 each quarter in connection
with certain due diligence obligations under the Sale Agreement. We estimate that the total expenses for this offering, excluding any
commissions or expense reimbursement payable to Jefferies under the terms of the Sale Agreement, will be approximately $100,000.
The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares.
Jefferies will provide written
confirmation to us before the open on The Nasdaq Global Market on the day following each day on which shares of our common stock are sold
under the Sale Agreement. Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales
and the proceeds to us.
In connection with the sale of
shares of our common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies
against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies
may be required to make in respect of such liabilities.
This offering of shares of our
common stock pursuant to the Sale Agreement will terminate upon the earlier of (i) the sale of all shares of common stock subject to the
Sale Agreement and (ii) the termination of the Sale Agreement as permitted therein. We and Jefferies may each terminate the Sale Agreement
at any time upon ten days’ prior notice.
This summary of the material
provisions of the Sale Agreement does not purport to be a complete statement of its terms and conditions. A copy of the Sale Agreement
is filed as an exhibit to a current report on Form 8-K filed under the Securities Exchange Act of 1934, as amended, or the Exchange Act,
and incorporated by reference in this prospectus supplement and the accompanying base prospectus.
Jefferies and its affiliates
may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our
affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade
our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions
in such securities.
This prospectus supplement and
the accompanying base prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute
this prospectus supplement and the accompanying base prospectus electronically.
LEGAL
MATTERS
The validity of the securities
offered hereby is being passed upon for us by Hogan Lovells US LLP. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. is acting as counsel
for the sales agent in connection with this offering.
EXPERTS
Ernst
& Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10–K for the year ended December 31, 2020, as set forth in their report, which contains an explanatory
paragraph describing conditions that raise substantial doubt about the Company's ability to continue as a going concern as described
in Note 1 to the consolidated financial statements, and which is incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by reference in reliance on
Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC allows us to “incorporate
by reference” information into this prospectus supplement, which means that we can disclose important information to you by referring
you to another document filed separately with the SEC. The SEC file number for each of the documents incorporated by reference in this
prospectus supplement is 001-36296. The documents incorporated by reference into this prospectus supplement contain important information
that you should read.
The following documents are
incorporated by reference into this document::
|
•
|
our
Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying
such reports that relate to such items) filed with the SEC on January
11, 2021, January
13, 2021, January
19, 2021, February
1, 2021, February
16, 2021, February
17, 2021, March
1, 2021,
March 8, 2021, March
15, 2021,
March 22, 2021, March 30,
2021, March 31, 2021,
April 1, 2021, April
5, 2021, April 7, 2021,
April 28, 2021 May
3, 2021, May 4, 2021,
May 10, 2021, June
1, 2021, June 2, 2021,
June 4, 2021, June
8, 2021, and July 14, 2021; and
|
We also incorporate by reference into this prospectus all documents
(other than portions of documents that are either described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and
(e)(5) of Item 407 of Regulation S-K promulgated by the SEC and current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial registration statement of which this prospectus forms a part but prior to the
termination of this offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q and Current Reports on Form 8-K, as well as proxy statements. Please see “Where You Can Find More Information” for additional
information.
Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded
for purposes of the document to the extent that a statement contained in this document or any other subsequently filed document that is
deemed to be incorporated by reference into this prospectus modifies or supersedes the statement.
You may request, orally or
in writing, a copy of any or all of the documents incorporated herein by reference into this prospectus. These documents will be provided
to you at no cost, by contacting: Sesen Bio, Inc., Attn: General Counsel, 245 First Street, Suite 1800, Cambridge, MA 02142. In addition,
copies of any or all of the documents incorporated herein by reference in this prospectus may be accessed at our website at www.sesenbio.com.
The information on such website is not incorporated by reference and is not a part of this prospectus.
WHERE
YOU CAN FIND MORE INFORMATION
We are a reporting
company and file annual, quarterly and current reports, proxy and information statements and other information with the SEC. The
accompanying base prospectus is part of a registration statement that we have filed with the SEC relating to the shares of our
common stock to be offered under this prospectus supplement. This prospectus supplement does not contain all of the information set
forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and
the shares of our common stock to be offered under this prospectus supplement, we refer you to the registration statement and the exhibits and
schedules filed as a part of the registration statement.
The SEC maintains an internet
site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the
SEC, where you may read and copy the registration statement, as well as our reports, proxy and information statements and other information.
The address of the SEC’s web site is www.sec.gov.
Copies of certain information
filed by us with the SEC are also available on our website at www.sesenbio.com. Information contained in or accessible through our website
does not constitute a part of this prospectus and is not incorporated by reference in this prospectus.
PROSPECTUS
$200,000,000
Debt Securities
Common Stock
Preferred Stock
Depository Shares
Warrants
Rights
Units
We may offer and sell up to $200,000,000 in the
aggregate of the securities identified above from time to time in one or more offerings. This prospectus provides a general description
of the securities that we may offer. Each time that we offer securities under this prospectus, we will provide the specific terms of
the securities offered, including the public offering price, in a supplement to this prospectus. Any prospectus supplement may add to,
update or change information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement together
with additional information described under the heading “Where You Can Find More Information” before you make your investment
decision.
The securities may be sold by us to or through
underwriters or dealers, directly to purchasers or through agents designated from time to time. For additional information on the methods
of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and the comparable section of
any applicable prospectus supplement. If any underwriters are involved in the sale of the securities with respect to which this prospectus
is being delivered, the names of such underwriters and any applicable discounts or commissions and over-allotment options will be set
forth in the applicable prospectus supplement. No securities may be sold without delivery of this prospectus and the applicable prospectus
supplement.
Our common stock trades on the Nasdaq Global
Market, or Nasdaq, under the ticker symbol “SESN.” On May 7, 2021, the last reported sale price per share of our common stock
was $2.67 per share.
INVESTING IN OUR SECURITIES INVOLVES A HIGH
DEGREE OF RISK. RISKS ASSOCIATED WITH AN INVESTMENT IN OUR SECURITIES WILL BE DESCRIBED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND CERTAIN
OF OUR FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION INCORPORATED BY REFERENCE INTO THIS PROSPECTUS, AS DESCRIBED UNDER “RISK
FACTORS” ON PAGE 5.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The
date of this prospectus is May
14,
2021.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is a part of a registration statement
that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf
registration process, we may offer to sell any of the securities, or any combination of the securities, described in this prospectus,
in each case in one or more offerings, up to a total dollar amount of $200,000,000.
This prospectus provides you only with a general
description of the securities that we may offer. Each time securities are sold under the shelf registration statement, we will provide
a prospectus supplement or free writing prospectus that will contain specific information about the terms of those securities and the
terms of that offering. The prospectus supplement or free writing prospectus may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus supplement or free writing prospectus, including all documents
incorporated by reference herein and therein, together with the additional information described under “Where You Can Find More
Information” below.
The registration statement that contains this
prospectus, including the exhibits to the registration statement and the information incorporated by reference, contains additional information
about the securities offered under this prospectus. That registration statement can be read at the SEC website mentioned below under
the heading “Where You Can Find More Information.” You should read the exhibits carefully for provisions that may be important
to you.
We have not authorized any underwriter,
agent or dealer or other person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus and any accompanying prospectus supplement or free writing prospectus. You must not rely upon any information or representation
not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement or free writing prospectus. This
prospectus and the accompanying prospectus supplement or free writing prospectus, if any, do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and the accompanying
prospectus supplement or free writing prospectus, if any, constitute an offer to sell or the solicitation of an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume
that the information contained in this prospectus and the accompanying prospectus supplement or free writing prospectus, if any, is accurate
on any date subsequent to the date set forth on the front of such document or that any information we have incorporated by reference
is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying
prospectus supplement or free writing prospectus is delivered or securities are sold on a later date.
References
in this prospectus to the terms “the Company,” “Sesen,” “we,” “our” and “us”
or other similar terms mean Sesen Bio, Inc. and its subsidiaries, unless we state otherwise or the context indicates otherwise.
FORWARD-LOOKING
STATEMENTS
This prospectus, including the documents that
we incorporate by reference herein, includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. For this
purpose, any statements contained herein, other than statements of historical fact, regarding our strategy, future operations, future
product research or development, future financial position, future revenues, projected costs, prospects, plans and objectives of management,
are forward-looking statements. The words “anticipate,” “believe,” “goals,” “estimate,”
“expect,” “intend,” “may,” “might,” “plan,” “predict,” “project,”
“target,” “potential,” “will,” “would,” “could,” “should,” “continue”
and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these
identifying words.
The forward-looking statements in this prospectus
include, among other things, statements about:
|
·
|
our
plans and ability to commercialize VicineumTM for the treatment of bacillus Calmette-Guérin,
or BCG, unresponsive non-muscle invasive bladder cancer, or NMIBC, if approved;
|
|
·
|
the
expectation that the United States Food and Drug Administration, or FDA, will make a decision
regarding the Company’s Biologics License Application, or the BLA, for Vicineum for
the treatment of BCG-unresponsive NMIBC on or before the anticipated target Prescription
Drug User Fee Act, or PDUFA, date of August 18, 2021;
|
|
·
|
the
expectation that the FDA will not hold an advisory committee meeting to discuss the BLA for
Vicineum;
|
|
·
|
our
expectation for the potential commercial launch of Vicineum for the treatment of BCG-unresponsive
NMIBC in the U.S., if approved, in mid-2021;
|
|
·
|
the
potential impact of the COVID-19 pandemic on our business;
|
|
·
|
our
expected future loss and accumulated deficit levels;
|
|
·
|
the
difficulties and expenses associated with obtaining and maintaining regulatory approval of
Vicineum for the treatment of BCG-unresponsive NMIBC in the United States and other foreign
jurisdictions, and the labeling under any approval we may obtain;
|
|
·
|
our
projected financial position and estimated cash burn rate;
|
|
·
|
our
estimates regarding expenses, future revenues, capital requirements and needs for, and ability
to obtain, additional financing;
|
|
·
|
our
ability to continue as a going concern;
|
|
·
|
our
need to raise substantial additional capital to fund our operations;
|
|
·
|
the
potential impairment of our goodwill and indefinite lived intangible assets;
|
|
·
|
the
success, cost and timing of our pre-clinical studies and clinical trials in the United States,
and other foreign jurisdictions;
|
|
·
|
the
potential that results of pre-clinical studies and clinical trials indicate our product candidates
are unsafe or ineffective;
|
|
·
|
our
dependence on third parties, including contract research organizations in the conduct of
our pre-clinical studies and clinical trials;
|
|
·
|
our
ability to achieve certain future regulatory, development and commercialization milestones
under our License Agreement with F. Hoffmann-La Roche Ltd and Hoffmann La-Roche Inc., or
the Roche License Agreement;
|
|
·
|
the
timing and costs associated with our manufacturing process and technology transfer to FUJIFILM
Diosynth Biotechnologies U.S.A., Inc., or Fujifilm, for the production of Vicineum drug substance,
and our reliance on Fujifilm to perform under our agreement with Fujifilm;
|
|
·
|
the
timing and costs associated with our manufacturing process and technology transfer to Baxter
Oncology GmbH, or Baxter, for the production of Vicineum drug product, and our reliance on
Baxter to perform under our agreement with Baxter;
|
|
·
|
market
acceptance of our product candidates, including Vicineum for the treatment of BCG-unresponsive
NMIBC, the size and growth of the potential markets for our product candidates, and our ability
to serve those markets;
|
|
·
|
obtaining
and maintaining intellectual property protection for our product candidates and our proprietary
technology;
|
|
·
|
the
successful development of our commercialization capabilities, including sales and marketing
capabilities;
|
|
·
|
our
expectation that the European Medicines Agency, or the EMA, will potentially approve our
marketing authorization application, or MAA, for Vicineum for the treatment of BCG-unresponsive
NMIBC in early 2022;
|
|
·
|
our
expectations regarding the amount and timing of milestone and royalty payments pursuant to
our out-license agreements and OUS business development partnership agreements, including
our exclusive license agreement with Qilu Pharmaceutical Co., Ltd. for the development, manufacture
and commercialization of Vicineum in Greater China;
|
|
·
|
the
success of competing therapies and products that are or become available; and
|
|
·
|
our
use of proceeds from this offering.
|
Our product candidates are investigational biologics
undergoing clinical development and have not been approved by the FDA or other comparable foreign regulatory authorities. On December
18, 2020, we submitted our completed BLA for Vicineum to the FDA. On February 12, 2021, the FDA notified us that it has accepted for
filing the BLA. The FDA also granted Priority Review for the BLA and the anticipated target PDUFA date for a decision on the BLA is August
18, 2021. In addition to the BLA file acceptance and granting of Priority Review, the FDA also indicated that it is not currently planning
to hold an advisory committee meeting to discuss the BLA for Vicineum. Our product candidates have not been, nor may they ever be, approved
by any regulatory agency or competent authorities nor marketed anywhere in the world.
We may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, and our stockholders should not place undue reliance on our forward-looking
statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking
statements we make. We have included important factors in the cautionary statements included in this prospectus, particularly in the
“Risk Factors” section beginning on page 5 and those identified under the heading “Risk Factors” in our most
recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report
on Form 10-K, that could cause actual results or events to differ materially from the forward-looking statements that we make. Our forward-looking
statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may
make.
Moreover, we operate in a very competitive and
rapidly changing environment, and new risks emerge from time to time. It is not possible for us to predict all risks, nor can we assess
the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ
materially and adversely from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and
assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ
materially and adversely from those anticipated or implied in the forward-looking statements.
You should not rely upon forward-looking statements
as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable,
we cannot guarantee that the future results, levels of activity, performance or events and circumstances reflected in the forward-looking
statements will be achieved or occur. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness
of the forward-looking statements.
You should read this prospectus and the documents
that we have filed as exhibits to the registration statement of which this prospectus forms a part completely and with the understanding
that our actual future results may be materially different from what we expect. The forward-looking statements contained in this prospectus
are made as of the date of this prospectus and we do not assume any obligation to update any forward-looking statements, whether as a
result of new information, future events or otherwise, except as required by applicable law.
THE COMPANY
Overview
We are a late-stage clinical company advancing
targeted fusion protein therapeutics, or TFPTs, for the treatment of patients with cancer. We genetically fuse the targeting antibody
fragment and the cytotoxic protein payload into a single molecule that is produced through our proprietary one-step, microbial manufacturing
process. We target tumor cell surface antigens with limited expression on normal cells. Binding of the target antigen by the TFPT allows
for rapid internalization into the targeted cancer cell. We have designed our targeted proteins to overcome the fundamental efficacy
and safety challenges inherent in existing antibody-drug conjugates, or ADCs, where a payload is chemically attached to a targeting antibody.
Our most advanced product candidate, Vicineum,
also known as VB4-845, is a locally-administered targeted fusion protein composed of an anti-epithelial cell adhesion molecule, or EpCAM,
antibody fragment tethered to a truncated form of Pseudomonas exotoxin A for the treatment of BCG-unresponsive NMIBC.
On December 18, 2020, we submitted our completed
BLA for Vicineum for the treatment of BCG-unresponsive NMIBC to the FDA. On February 12, 2021, the FDA notified us that it had accepted
for the BLA filing. The FDA also granted Priority Review for the BLA and the target PDUFA date for a decision on the BLA is August 18,
2021. In addition to the BLA file acceptance and granting of Priority Review, the FDA also indicated that it is not currently planning
to hold an advisory committee meeting to discuss the BLA for Vicineum.
Corporate
Information
We were incorporated under the laws of the state
of Delaware on February 25, 2008 under the name NewCo LS14, Inc. We subsequently changed our name to DeNovo Therapeutics, Inc. in September
2008, to Eleven Biotherapeutics, Inc. in February 2010 and to Sesen Bio, Inc. in May 2018. Our principal executive offices are located
at 245 First Street, Suite 1800, Cambridge, Massachusetts 02142, and our telephone number is (617) 444-8550. Our website address is www.sesenbio.com.
The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website
address in this prospectus solely as an inactive textual reference.
Sesen Bio, Viventia Bio, Vicineum, Vysyneum and
the Sesen and Viventia logos are our trademarks. The other trademarks, trade names and service marks appearing in this prospectus are
the property of their respective owners.
RISK
FACTORS
Our
business is influenced by many factors that are difficult to predict, and that involve uncertainties that may materially affect actual
operating results, cash flows and financial condition. Before making an investment decision, you should carefully consider these risks,
including those set forth in the “Risk Factors” section of our most recent Annual Report on Form 10-K filed with the SEC,
as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report
on Form 10-K, each of which is incorporated by reference into this prospectus. You should also carefully consider any other information
we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement. Each of the risks described
in these sections and documents could materially and adversely affect our business, financial condition, results of operations and prospects,
and could result in a partial or complete loss of your investment.
USE
OF PROCEEDS
Unless otherwise indicated in a prospectus supplement
or free writing prospectus, we anticipate that the net proceeds from our sale of any securities will be used to fund the preparation
for regulatory activities in support of obtaining FDA approval of Vicineum in the United States for the treatment of BCG-unresponsive
NMIBC, regulatory activities in support of obtaining EMA approval for Vicineum in the European Union for the treatment of BCG-unresponsive
NMIBC, the preparation for and commercialization of Vicineum in the United States for the treatment of BCG-unresponsive NMIBC, if approved,
and for general corporate purposes, which may include capital expenditures and funding our working capital needs. We expect from time
to time to evaluate the acquisition of businesses, products and technologies for which a portion of the net proceeds may be used, although
we currently are not planning or negotiating any such transactions. Pending such uses, we may invest the net proceeds in investment grade
interest-bearing securities.
The amounts actually expended for each purpose
may vary significantly depending upon numerous factors, including the amount and timing of the proceeds from any sale of securities.
Expenditures will also depend upon the establishment of collaborative arrangements with other companies, the availability of additional
financing and other factors. Investors will be relying on the judgment of our management regarding the application of the proceeds of
any sale of securities.
DESCRIPTION
OF OUR DEBT SECURITIES
We may offer debt securities which may be senior
or subordinated. We refer to the senior debt securities and the subordinated debt securities collectively as debt securities. The following
description summarizes the general terms and provisions of the debt securities. We will describe the specific terms of the debt securities
and the extent, if any, to which the general provisions summarized below apply to any series of debt securities in the prospectus supplement
relating to the series and any applicable free writing prospectus that we authorize to be delivered. When we refer to “the Company,”
“we,” “our,” and “us” in this section, we mean Sesen Bio, Inc. excluding, unless the context otherwise
requires or as otherwise expressly stated, our subsidiaries.
We may issue senior debt securities from time
to time, in one or more series under a senior indenture to be entered into between us and a senior trustee to be named in a prospectus
supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time, in one or more series
under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a prospectus supplement, which
we refer to as the subordinated trustee. Together, the senior indenture and the subordinated indenture are referred to as the indentures
and, together, the senior trustee and the subordinated trustee are referred to as the trustees. This prospectus briefly outlines some
of the provisions of the indentures. The following summary of the material provisions of the indentures is qualified in its entirety
by the provisions of the indentures, including definitions of certain terms used in the indentures. Wherever we refer to particular sections
or defined terms of the indentures, those sections or defined terms are incorporated by reference in this prospectus or the applicable
prospectus supplement. You should review the indentures that are incorporated by reference to the registration statement of which this
prospectus forms a part for additional information.
None of the indentures will limit the amount
of debt securities that we may issue. The applicable indenture will provide that debt securities may be issued up to an aggregate principal
amount authorized from time to time by us and may be payable in any currency or currency unit designated by us or in amounts determined
by reference to an index.
General
The senior debt securities will constitute our
unsecured and unsubordinated general obligations and will rank pari passu with our other unsecured and unsubordinated obligations. The
subordinated debt securities will constitute our unsecured and subordinated general obligations and will be junior in right of payment
to our senior indebtedness (including senior debt securities), as described under the heading “—Certain Terms of the Subordinated
Debt Securities-Subordination.” The debt securities will be structurally subordinated to all existing and future indebtedness and
other liabilities of our subsidiaries unless such subsidiaries expressly guarantee such debt securities.
The debt securities will be our unsecured obligations.
Any secured debt or other secured obligations will be effectively senior to the debt securities to the extent of the value of the assets
securing such debt or other obligations.
The applicable prospectus supplement and/or free
writing prospectus will include any additional or different terms of the debt securities of any series being offered, including the following
terms:
|
·
|
the title and type
of the debt securities;
|
|
·
|
whether
the debt securities will be senior or subordinated debt securities, and, with respect to
debt securities issued under the subordinated indenture the terms on which they are subordinated;
|
|
·
|
the aggregate principal
amount of the debt securities;
|
|
·
|
the price or prices
at which we will sell the debt securities;
|
|
·
|
the maturity date
or dates of the debt securities and the right, if any, to extend such date or dates;
|
|
·
|
the rate or rates,
if any, per year, at which the debt securities will bear interest, or the method of determining
such rate or rates;
|
|
·
|
the
date or dates from which such interest will accrue, the interest payment dates on which such
interest will be payable or the manner of determination of such interest payment dates and
the related record dates;
|
|
·
|
the right, if any,
to extend the interest payment periods and the duration of that extension;
|
|
·
|
the manner of paying
principal and interest and the place or places where principal and interest will be payable;
|
|
·
|
provisions for a sinking
fund, purchase fund or other analogous fund, if any;
|
|
·
|
any redemption dates,
prices, obligations and restrictions on the debt securities;
|
|
·
|
the
currency, currencies or currency units in which the debt securities will be denominated and
the currency, currencies or currency units in which principal and interest, if any, on the
debt securities may be payable;
|
|
·
|
any conversion or
exchange features of the debt securities;
|
|
·
|
whether and upon what
terms the debt securities may be defeased;
|
|
·
|
any events of default
or covenants in addition to or in lieu of those set forth in the indenture;
|
|
·
|
whether the debt securities
will be issued in definitive or global form or in definitive form only upon satisfaction
of certain conditions;
|
|
·
|
whether the debt securities
will be guaranteed as to payment or performance;
|
|
·
|
any tax implications
of the debt securities; and
|
|
·
|
any other material
terms of the debt securities.
|
When we refer to “principal” in this
section with reference to the debt securities, we are also referring to “premium, if any.”
We may from time to time, without notice to or
the consent of the holders of any series of debt securities, create and issue further debt securities of any such series ranking equally
with the debt securities of such series in all respects (or in all respects other than (1) the payment of interest accruing prior to
the issue date of such further debt securities or (2) the first payment of interest following the issue date of such further debt securities).
Such further debt securities may be consolidated and form a single series with the debt securities of such series and have the same terms
as to status, redemption or otherwise as the debt securities of such series.
You may present debt securities for exchange
and you may present debt securities for transfer in the manner, at the places and subject to the restrictions set forth in the debt securities
and the applicable prospectus supplement. We will provide you those services without charge, although you may have to pay any tax or
other governmental charge payable in connection with any exchange or transfer, as set forth in the indenture.
Debt securities may bear interest at a fixed
rate or a floating rate. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing
market rate (original issue discount securities) may be sold at a discount below their stated principal amount. U.S. federal income tax
considerations applicable to any such discounted debt securities or to certain debt securities issued at par which are treated as having
been issued at a discount for U.S. federal income tax purposes will be described in the applicable prospectus supplement.
We may
issue debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on any interest
payment date, to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity
prices or indices. You may receive a payment of principal on any principal payment date, or a payment of interest on any interest payment
date, that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending on the value on
such dates of the applicable currency, security or basket of securities, commodity or index. Information as to the methods for determining
the amount of principal or interest payable on any date, the currencies, securities or baskets of securities, commodities or indices
to which the amount payable on such date is linked and certain related tax considerations will be set forth in the applicable prospectus
supplement.
Certain
Terms of the Senior Debt Securities
Covenants.
Unless we indicate otherwise in a prospectus supplement, the senior debt securities will not contain any financial or restrictive covenants,
including covenants restricting either us or any of our subsidiaries from incurring, issuing, assuming or guaranteeing any indebtedness
secured by a lien on any of our or our subsidiaries’ property or capital stock, or restricting either us or any of our subsidiaries
from entering into sale and leaseback transactions.
Consolidation,
Merger and Sale of Assets. Unless we indicate otherwise in a prospectus supplement, we may not consolidate with or merge into any
other person, 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, in either case, unless:
|
·
|
the successor entity,
if any, is a U.S. corporation, limited liability company, partnership or trust (subject to
certain exceptions provided for in the senior indenture);
|
|
·
|
the successor entity
assumes our obligations on the senior debt securities and under the senior indenture;
|
|
·
|
immediately after
giving effect to the transaction, no default or event of default shall have occurred and
be continuing; and
|
|
·
|
certain other conditions
are met.
|
No Protection
in the Event of a Change in Control. Unless we indicate otherwise in a prospectus supplement with respect to a particular series
of senior debt securities, the senior debt securities will not contain any provisions that may afford holders of the senior 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).
Events
of Default. Unless we indicate otherwise in a prospectus supplement with respect to a particular series of senior debt securities,
the following are events of default under the senior indenture for any series of senior debt securities:
|
·
|
failure
to pay interest on any senior debt securities of such series when due and payable, if that
default continues for a period of 30 days (or such other period as may be specified for such
series);
|
|
·
|
failure
to pay principal on the senior debt securities of such series when due and payable whether
at maturity, upon redemption, by declaration or otherwise (and, if specified for such series,
the continuance of such failure for a specified period);
|
|
·
|
default
in the performance of or breach of any of our covenants or agreements in the senior indenture
applicable to senior debt securities of such series, other than a covenant breach which is
specifically dealt with elsewhere in the senior indenture, and that default or breach continues
for a period of 90 days after we receive written notice from the trustee or from the holders
of 25% or more in aggregate principal amount of the senior debt securities of such series;
|
|
·
|
certain events of
bankruptcy or insolvency, whether or not voluntary; and
|
|
·
|
any other event of
default provided for in such series of senior debt securities as may be specified in the
applicable prospectus supplement.
|
The default by us under any other debt, including
any other series of debt securities, is not a default under the senior indenture.
If an event of default other than an event of
default specified in the fourth bullet point above occurs with respect to a series of senior debt securities and is continuing under
the senior indenture, then, and in each such case, either the trustee or the holders of not less than 25% in aggregate principal amount
of such series then outstanding under the senior indenture (each such series voting as a separate class) by written notice to us and
to the trustee, if such notice is given by the holders, may, and the trustee at the request of such holders shall, declare the principal
amount of and accrued interest on such series of senior debt securities to be immediately due and payable, and upon this declaration,
the same shall become immediately due and payable.
If an event of default specified in the fourth
bullet point above occurs and is continuing, the entire principal amount of and accrued interest on each series of senior debt securities
then outstanding shall become immediately due and payable.
Unless otherwise specified in the prospectus
supplement relating to a series of senior debt securities originally issued at a discount, the amount due upon acceleration shall include
only the original issue price of the senior debt securities, the amount of original issue discount accrued to the date of acceleration
and accrued interest, if any.
Upon certain conditions, declarations of acceleration
may be rescinded and annulled and past defaults may be waived by the holders of a majority in aggregate principal amount of all the senior
debt securities of such series affected by the default, each series voting as a separate class. Furthermore, subject to various provisions
in the senior indenture, the holders of a majority in aggregate principal amount of a series of senior debt securities, by notice to
the trustee, may waive an existing default or event of default with respect to such senior debt securities and its consequences, except
a default in the payment of principal of or interest on such senior debt securities or in respect of a covenant or provision of the senior
indenture which cannot be modified or amended without the consent of the holders of each such senior debt security. Upon any such waiver,
such default shall cease to exist, and any event of default with respect to such senior debt securities shall be deemed to have been
cured, for every purpose of the senior indenture; but no such waiver shall extend to any subsequent or other default or event of default
or impair any right consequent thereto.
The holders of a majority in aggregate principal
amount of a series of senior debt securities may direct the time, method and place of conducting any proceeding for any remedy available
to the trustee or exercising any trust or power conferred on the trustee with respect to such senior debt securities. However, the trustee
may refuse to follow any direction that conflicts with law or the senior indenture, that may involve the trustee in personal liability
or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of such series of senior debt securities
not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction
received from holders of such series of senior debt securities. A holder may not pursue any remedy with respect to the senior indenture
or any series of senior debt securities unless:
|
·
|
the holder gives the
trustee written notice of a continuing event of default;
|
|
·
|
the
holders of at least 25% in aggregate principal amount of such series of senior debt securities
make a written request to the trustee to pursue the remedy in respect of such event of default;
|
|
·
|
the requesting holder
or holders offer the trustee indemnity satisfactory to the trustee against any costs, liability
or expense;
|
|
·
|
the trustee does not
comply with the request within 60 days after receipt of the request and the offer of indemnity;
and
|
|
·
|
during
such 60-day period, the holders of a majority in aggregate principal amount of such series
of senior debt securities do not give the trustee a direction that is inconsistent with the
request.
|
These limitations, however, do not apply to the
right of any holder of a senior debt security to receive payment of the principal of and interest on such senior debt security in accordance
with the terms of such debt security, or to bring suit for the enforcement of any such payment in accordance with the terms of such debt
security, on or after the due date for the senior debt securities, which right shall not be impaired or affected without the consent
of the holder.
The senior indenture requires certain of our
officers to certify, on or before a fixed date in each year in which any senior debt security is outstanding, as to their knowledge of
our compliance with all covenants, agreements and conditions under the senior indenture.
Satisfaction
and Discharge. We can satisfy and discharge our obligations to holders of any series of debt securities if:
|
·
|
we
pay or cause to be paid, as and when due and payable, the principal of and any interest on
all senior debt securities of such series outstanding under the senior indenture; or
|
|
·
|
all
senior debt securities of such series have become due and payable or will become due and
payable within one year (or are to be called for redemption within one year) and we deposit
in trust a combination of cash and U.S. government or U.S. government agency obligations
that will generate enough cash to make interest, principal and any other payments on the
debt securities of that series on their various due dates.
|
Under current
U.S. federal income tax law, the deposit and our legal release from the debt securities would be treated as though we took back your
debt securities and gave you your share of the cash and debt securities or bonds deposited in trust. In that event, you could recognize
gain or loss on the debt securities you give back to us. Purchasers of the debt securities should consult their own advisers with respect
to the tax consequences to them of such deposit and discharge, including the applicability and effect of tax laws other than the U.S.
federal income tax law.
Defeasance.
Unless the applicable prospectus supplement provides otherwise, the following discussion of legal defeasance and discharge and covenant
defeasance will apply to any series of debt securities issued under the indentures.
Legal
Defeasance. We can legally release ourselves from any payment or other obligations on the debt securities of any series (called “legal
defeasance”) if certain conditions are met, including the following:
|
·
|
We
deposit in trust for your benefit and the benefit of all other direct holders of the debt
securities of the same series a combination of cash and U.S. government or U.S. government
agency obligations that will generate enough cash to make interest, principal and any other
payments on the debt securities of that series on their various due dates.
|
|
·
|
There
is a change in current U.S. federal income tax law or an IRS ruling that lets us make the
above deposit without causing you to be taxed on the debt securities any differently than
if we did not make the deposit and instead repaid the debt securities ourselves when due.
Under current U.S. federal income tax law, the deposit and our legal release from the debt
securities would be treated as though we took back your debt securities and gave you your
share of the cash and debt securities or bonds deposited in trust. In that event, you could
recognize gain or loss on the debt securities you give back to us.
|
|
·
|
We deliver to the
trustee a legal opinion of our counsel confirming the tax law change or ruling described
above.
|
If we accomplish legal defeasance,
as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could not look to us
for repayment in the event of any shortfall.
Covenant
Defeasance. Without any change of current U.S. federal tax law, we can make the same type of deposit described above and be released
from some of the covenants in the debt securities (called “covenant defeasance”). In that event, you would lose the protection
of those covenants but would gain the protection of having money and securities set aside in trust to repay the debt securities. In order
to achieve covenant defeasance, we must do the following (among other things):
|
·
|
We
must deposit in trust for your benefit and the benefit of all other direct holders of the
debt securities of the same series a combination of cash and U.S. government or U.S. government
agency obligations that will generate enough cash to make interest, principal and any other
payments on the debt securities of that series on their various due dates.
|
|
·
|
We
must deliver to the trustee a legal opinion of our counsel confirming that under current
U.S. federal income tax law we may make the above deposit without causing you to be taxed
on the debt securities any differently than if we did not make the deposit and instead repaid
the debt securities ourselves when due.
|
If we accomplish
covenant defeasance, you could still look to us for repayment of the debt securities if there were a shortfall in the trust deposit.
In fact, if one of the events of default occurred (such as our bankruptcy) and the debt securities become immediately due and payable,
there may be such a shortfall. Depending on the events causing the default, you may not be able to obtain payment of the shortfall.
Modification
and Waiver. We and the trustee may amend or supplement the senior indenture or the senior debt securities without the consent of
any holder:
|
·
|
to convey, transfer,
assign, mortgage or pledge any assets as security for the senior debt securities of one or
more series;
|
|
·
|
to
evidence the succession of a corporation, limited liability company, partnership or trust
to us, and the assumption by such successor of our covenants, agreements and obligations
under the senior indenture or to otherwise comply with the covenant relating to mergers,
consolidations and sales of assets;
|
|
·
|
to
comply with requirements of the SEC in order to effect or maintain the qualification of the
senior indenture under the Trust Indenture Act of 1939, as amended, or the Trust Indenture
Act;
|
|
·
|
to
add to our covenants such new covenants, restrictions, conditions or provisions for the protection
of the holders, and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default;
|
|
·
|
to
cure any ambiguity, defect or inconsistency in the senior indenture or in any supplemental
indenture or to conform the senior indenture or the senior debt securities to the description
of senior debt securities of such series set forth in this prospectus or any applicable prospectus
supplement;
|
|
·
|
to provide for or
add guarantors with respect to the senior debt securities of any series;
|
|
·
|
to establish the form
or forms or terms of the senior debt securities as permitted by the senior indenture;
|
|
·
|
to
evidence and provide for the acceptance of appointment under the senior indenture by a successor
trustee, or to make such changes as shall be necessary to provide for or facilitate the administration
of the trusts in the senior indenture by more than one trustee;
|
|
·
|
to
add to, delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms, purposes of issue, authentication and delivery of any series of senior debt
securities;
|
|
·
|
to make any change
to the senior debt securities of any series so long as no senior debt securities of such
series are outstanding; or
|
|
·
|
to make any change
that does not adversely affect the rights of any holder in any material respect.
|
Other
amendments and modifications of the senior indenture or the senior debt securities issued may be made, and our compliance with any provision
of the senior indenture with respect to any series of senior debt securities may be waived, with the consent of the holders of a majority
of the aggregate principal amount of the outstanding senior debt securities of all series affected by the amendment or modification (voting
together as a single class); provided, however, that each affected holder must consent to any modification, amendment or waiver that:
|
·
|
extends the final
maturity of any senior debt securities of such series;
|
|
·
|
reduces the principal
amount of any senior debt securities of such series;
|
|
·
|
reduces the rate or
extends the time of payment of interest on any senior debt securities of such series;
|
|
·
|
reduces the amount
payable upon the redemption of any senior debt securities of such series;
|
|
·
|
changes the currency
of payment of principal of or interest on any senior debt securities of such series;
|
|
·
|
reduces the principal
amount of original issue discount securities payable upon acceleration of maturity or the
amount provable in bankruptcy;
|
|
·
|
waives
an uncured default in the payment of principal of or interest on the senior debt securities
(except in the case of a rescission of acceleration as described above);
|
|
·
|
changes
the provisions relating to the waiver of past defaults or changes or impairs the right of
holders to receive payment or to institute suit for the enforcement of any payment or conversion
of any senior debt securities of such series on or after the due date therefor;
|
|
·
|
modifies
any of the provisions of these restrictions on amendments and modifications, except to increase
any required percentage or to provide that certain other provisions cannot be modified or
waived without the consent of the holder of each senior debt security of such series affected
by the modification; or
|
|
·
|
reduces
the above-stated percentage of outstanding senior debt securities of such series whose holders
must consent to a supplemental indenture or modifies or amends or waives certain provisions
of or defaults under the senior indenture.
|
It shall
not be necessary for the holders to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient
if the holders’ consent approves the substance thereof. After an amendment, supplement
or waiver of the senior indenture in accordance with the provisions described in this section becomes effective, the trustee must give
to the holders affected thereby certain notice briefly describing the amendment, supplement or waiver. Any failure by the trustee to
give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplemental
indenture or waiver.
No Personal
Liability of Incorporators, Stockholders, Officers, Directors. The senior indenture provides that no recourse shall be had under
any obligation, covenant or agreement of ours in the senior indenture or any supplemental indenture, or in any of the senior debt securities
or because of the creation of any indebtedness represented thereby, against any of our incorporators, stockholders, officers or directors,
past, present or future, or of any predecessor or successor entity thereof under any law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or otherwise. Each holder, by accepting the senior debt securities,
waives and releases all such liability.
Concerning
the Trustee. The senior indenture provides that, except during the continuance of an event of default, the trustee will not be liable
except for the performance of such duties as are specifically set forth in the senior indenture. If an event of default has occurred
and is continuing, the trustee will exercise such rights and powers vested in it under the senior indenture and will use the same degree
of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own
affairs.
The senior indenture and the provisions of the
Trust Indenture Act incorporated by reference therein contain limitations on the rights of the trustee thereunder, should it become a
creditor of ours or any of our subsidiaries, to obtain payment of claims in certain cases or to realize on certain property received
by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions, provided that
if it acquires any conflicting interest (as defined in the Trust Indenture Act), it must eliminate such conflict or resign.
We may have normal banking relationships with
the senior trustee in the ordinary course of business.
Unclaimed
Funds. All funds deposited with the trustee or any paying agent for the payment of principal, premium, interest or additional amounts
in respect of the senior debt securities that remain unclaimed for two years after the date upon which such principal, premium or interest
became due and payable will be repaid to us. Thereafter, any right of any holder of senior debt securities to such funds shall be enforceable
only against us, and the trustee and paying agents will have no liability therefor.
Governing
Law. The senior indenture and the senior debt securities will be governed by, and construed in accordance with, the internal laws
of the State of New York.
Certain
Terms of the Subordinated Debt Securities
Other than the terms of the subordinated indenture
and subordinated debt securities relating to subordination or otherwise as described in the prospectus supplement relating to a particular
series of subordinated debt securities, the terms of the subordinated indenture and subordinated debt securities are identical in all
material respects to the terms of the senior indenture and senior debt securities.
Additional or different subordination terms may
be specified in the prospectus supplement applicable to a particular series.
Subordination.
The indebtedness evidenced by the subordinated debt securities is subordinate to the prior payment in full of all of our senior indebtedness,
as defined in the subordinated indenture. During the continuance beyond any applicable grace period of any default in the payment of
principal, premium, interest or any other payment due on any of our senior indebtedness, we may not make any payment of principal of
or interest on the subordinated debt securities (except for certain sinking fund payments). In addition, upon any payment or distribution
of our assets upon any dissolution, winding-up, liquidation or reorganization, the payment of the principal of and interest on the subordinated
debt securities will be subordinated to the extent provided in the subordinated indenture in right of payment to the prior payment in
full of all our senior indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders of our subordinated
debt securities may receive less, ratably, than holders of our senior indebtedness. The subordination provisions do not prevent the occurrence
of an event of default under the subordinated indenture.
The term
“senior indebtedness” of a person means with respect to such person the principal of, premium, if any, interest on, and any
other payment due pursuant to any of the following, whether outstanding on the date of the subordinated indenture or incurred by that
person in the future:
|
·
|
all of the indebtedness
of that person for money borrowed;
|
|
·
|
all of the indebtedness
of that person evidenced by notes, debentures, bonds or other securities sold by that person
for money;
|
|
·
|
all of the lease obligations
that are capitalized on the books of that person in accordance with generally accepted accounting
principles;
|
|
·
|
all
indebtedness of others of the kinds described in the first two bullet points above and all
lease obligations of others of the kind described in the third bullet point above that the
person, in any manner, assumes or guarantees or that the person in effect guarantees through
an agreement to purchase, whether that agreement is contingent or otherwise; and
|
|
·
|
all
renewals, extensions or refundings of indebtedness of the kinds described in the first, second
or fourth bullet point above and all renewals or extensions of leases of the kinds described
in the third or fourth bullet point above;
|
unless,
in the case of any particular indebtedness, renewal, extension or refunding, the instrument creating or evidencing it or the assumption
or guarantee relating to it expressly provides that such indebtedness, renewal, extension or refunding is not superior in right of payment
to the subordinated debt securities. Our senior debt securities constitute senior indebtedness for purposes of the subordinated debt
indenture.
DESCRIPTION
OF OUR CAPITAL STOCK
The following description of our capital stock
and provisions of our certificate of incorporate, bylaws and the Delaware General Corporate Law, or DGCL, are summaries and are qualified
in their entirety by reference to the certificate of incorporation and the bylaws. We have filed copies of these documents with the SEC
as exhibits to our registration statement, of which this prospectus forms a part.
Our authorized capital stock consists of 400,000,000
shares of our common stock, par value $0.001 per share, and 5,000,000 shares of our preferred stock, par value $0.001 per share, all
of which preferred stock is undesignated. As of May 7, 2021, we had 173,287,287 shares of our common stock issued and outstanding held
by 27 stockholders of record. This number does not include beneficial owners whose shares were held in street name.
Common
Stock
Holders of our common stock are entitled to one
vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Each election of
directors by our stockholders will be determined by a plurality of the votes cast by the stockholders entitled to vote on the election.
Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to
any preferential dividend rights of then outstanding preferred stock.
In the event of our liquidation or dissolution,
the holders of our common stock are entitled to receive proportionately all assets available for distribution to stockholders after the
payment of all debts and other liabilities and subject to the prior rights of any of our then outstanding preferred stock. Holders of
our common stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders
of our common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of our preferred
stock that we may designate and issue in the future.
Preferred
Stock
We are authorized to issue “blank check”
preferred stock, which may be issued in one or more series upon authorization of our board of directors. Our board of directors is authorized
to fix the designation of the series, the number of authorized shares of the series, dividend rights and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences and any other rights, powers, preferences and limitations applicable to
each series of preferred stock. The authorized shares of our preferred stock are available for issuance without further action by our
stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may be listed.
If the approval of our stockholders is not required for the issuance of shares of our preferred stock, our board may determine not to
seek stockholder approval. The specific terms of any series of preferred stock offered pursuant to this prospectus will be described
in the prospectus supplement relating to that series of preferred stock.
A series of our preferred stock could, depending
on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt. Our board of directors will make
any determination to issue preferred shares based upon its judgment as to the best interests of our stockholders. Our directors, in so
acting, could issue preferred stock having terms that could discourage an acquisition attempt through which an acquirer may be able to
change the composition of our board of directors, including a tender offer or other transaction that some, or a majority, of our stockholders
might believe to be in their best interests or in which stockholders might receive a premium for their stock over the then-current market
price of the stock.
The preferred stock has the terms described below
unless otherwise provided in the prospectus supplement relating to a particular series of preferred stock. You should read the prospectus
supplement relating to the particular series of preferred stock being offered for specific terms, including:
|
·
|
the designation and
stated value per share of the preferred stock and the number of shares offered;
|
|
·
|
the amount of liquidation
preference per share;
|
|
·
|
the price at which
the preferred stock will be issued;
|
|
·
|
the
dividend rate, or method of calculation of dividends, the dates on which dividends will be
payable, whether dividends will be cumulative or noncumulative and, if cumulative, the dates
from which dividends will commence to accumulate;
|
|
·
|
any redemption or
sinking fund provisions;
|
|
·
|
if
other than the currency of the United States, the currency or currencies including composite
currencies in which the preferred stock is denominated and/or in which payments will or may
be payable;
|
|
·
|
a discussion of any
material U.S. federal income tax considerations applicable to the preferred stock;
|
|
·
|
any conversion provisions;
|
|
·
|
whether we have elected
to offer depositary shares as described under “Description of Depositary Shares”;
and
|
|
·
|
any other rights,
preferences, privileges, limitations and restrictions on the preferred stock.
|
The preferred stock will, when issued, be fully
paid and non-assessable. Unless otherwise specified in the prospectus supplement, each series of preferred stock will rank equally as
to dividends and liquidation rights in all respects with each other series of preferred stock. The rights of holders of shares of each
series of preferred stock will be subordinate to those of our general creditors.
As described under “Description of Depositary
Shares,” we may, at our option, with respect to any series of preferred stock, elect to offer fractional interests in shares of
preferred stock, and provide for the issuance of depositary receipts representing depositary shares, each of which will represent a fractional
interest in a share of the series of preferred stock. The fractional interest will be specified in the prospectus supplement relating
to a particular series of preferred stock.
Rank.
Unless otherwise specified in the prospectus supplement, the preferred stock will, with respect to dividend rights and rights upon
our liquidation, dissolution or winding up of our affairs, rank:
|
·
|
senior
to our common stock and to all equity securities ranking junior to such preferred stock with
respect to dividend rights or rights upon our liquidation, dissolution or winding up of our
affairs;
|
|
·
|
on
a parity with all equity securities issued by us, the terms of which specifically provide
that such equity securities rank on a parity with the preferred stock with respect to dividend
rights or rights upon our liquidation, dissolution or winding up of our affairs; and
|
|
·
|
junior
to all equity securities issued by us, the terms of which specifically provide that such
equity securities rank senior to the preferred stock with respect to dividend rights or rights
upon our liquidation, dissolution or winding up of our affairs.
|
The term
“equity securities” does not include convertible debt securities.
Dividends.
Holders of the preferred stock of each series will be entitled to receive, when, as and if declared by our board of directors, cash dividends
at such rates and on such dates described in the prospectus supplement. Different series of preferred stock may be entitled to dividends
at different rates or based on different methods of calculation. The dividend rate may be fixed or variable or both. Dividends will be
payable to the holders of record as they appear on our stock books on record dates fixed by our board of directors, as specified in the
applicable prospectus supplement.
Dividends on any series of preferred stock may
be cumulative or noncumulative, as described in the applicable prospectus supplement. If our board of directors does not declare a dividend
payable on a dividend payment date on any series of noncumulative preferred stock, then the holders of that noncumulative preferred stock
will have no right to receive a dividend for that dividend payment date, and we will have no obligation to pay the dividend accrued for
that period, whether or not dividends on that series are declared payable on any future dividend payment dates. Dividends on any series
of cumulative preferred stock will accrue from the date we initially issue shares of such series or such other date specified in the
applicable prospectus supplement.
No dividends may be declared or paid or funds
set apart for the payment of any dividends on any parity securities unless full dividends have been paid or set apart for payment on
the preferred stock. If full dividends are not paid, the preferred stock will share dividends pro rata with the parity securities.
No dividends may be declared or paid or funds
set apart for the payment of dividends on any junior securities unless full dividends for all dividend periods terminating on or prior
to the date of the declaration or payment will have been paid or declared and a sum sufficient for the payment set apart for payment
on the preferred stock.
Liquidation
Preference. Upon any voluntary or involuntary liquidation, dissolution or winding up of our affairs, then, before we make any distribution
or payment to the holders of any common stock or any other class or series of our capital stock ranking junior to the preferred stock
in the distribution of assets upon any liquidation, dissolution or winding up of our affairs, the holders of each series of preferred
stock shall be entitled to receive out of assets legally available for distribution to stockholders, liquidating distributions in the
amount of the liquidation preference per share set forth in the prospectus supplement, plus any accrued and unpaid dividends thereon.
Such dividends will not include any accumulation in respect of unpaid noncumulative dividends for prior dividend periods. Unless otherwise
specified in the prospectus supplement, after payment of the full amount of their liquidating distributions, the holders of preferred
stock will have no right or claim to any of our remaining assets. Upon any such voluntary or involuntary liquidation, dissolution or
winding up, if our available assets are insufficient to pay the amount of the liquidating distributions on all outstanding preferred
stock and the corresponding amounts payable on all other classes or series of our capital stock ranking on parity with the preferred
stock and all other such classes or series of shares of capital stock ranking on parity with the preferred stock in the distribution
of assets, then the holders of the preferred stock and all other such classes or series of capital stock will share ratably in any such
distribution of assets in proportion to the full liquidating distributions to which they would otherwise be entitled.
Upon any such liquidation, dissolution or winding
up and if we have made liquidating distributions in full to all holders of preferred stock, we will distribute our remaining assets among
the holders of any other classes or series of capital stock ranking junior to the preferred stock according to their respective rights
and preferences and, in each case, according to their respective number of shares. For such purposes, our consolidation or merger with
or into any other corporation, trust or entity, or the sale, lease or conveyance of all or substantially all of our property or assets
will not be deemed to constitute a liquidation, dissolution or winding up of our affairs.
Redemption.
If so provided in the applicable prospectus supplement, the preferred stock will be subject to mandatory redemption or redemption at
our option, as a whole or in part, in each case upon the terms, at the times and at the redemption prices set forth in such prospectus
supplement.
The prospectus supplement relating to a series
of preferred stock that is subject to mandatory redemption will specify the number of shares of preferred stock that shall be redeemed
by us in each year commencing after a date to be specified, at a redemption price per share to be specified, together with an amount
equal to all accrued and unpaid dividends thereon to the date of redemption. Unless the shares have a cumulative dividend, such accrued
dividends will not include any accumulation in respect of unpaid dividends for prior dividend periods. We may pay the redemption price
in cash or other property, as specified in the applicable prospectus supplement. If the redemption price for preferred stock of any series
is payable only from the net proceeds of the issuance of shares of our capital stock, the terms of such preferred stock may provide that,
if no such shares of our capital stock shall have been issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such preferred stock shall automatically and mandatorily be converted into the applicable
shares of our capital stock pursuant to conversion provisions specified in the applicable prospectus supplement. Notwithstanding the
foregoing, we will not redeem any preferred stock of a series unless:
|
·
|
if that series of
preferred stock has a cumulative dividend, we have declared and paid, or contemporaneously
declare and pay or set aside funds to pay, full cumulative dividends on the preferred stock
for all past dividend periods and the then current dividend period; or
|
|
·
|
if
such series of preferred stock does not have a cumulative dividend, we have declared and
paid, or contemporaneously declare and pay or set aside funds to pay, full dividends for
the then current dividend period.
|
In
addition, we will not acquire any preferred stock of a series unless:
|
·
|
if
that series of preferred stock has a cumulative dividend, we have declared and paid, or contemporaneously
declare and pay or set aside funds to pay, full cumulative dividends on all outstanding shares
of such series of preferred stock for all past dividend periods and the then current dividend
period; or
|
|
·
|
if
that series of preferred stock does not have a cumulative dividend, we have declared and
paid, or contemporaneously declare and pay or set aside funds to pay, full dividends on the
preferred stock of such series for the then current dividend period.
|
However, at any time we may purchase or acquire
preferred stock of that series (1) pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding preferred
stock of such series or (2) by conversion into or exchange for shares of our capital stock ranking junior to the preferred stock of such
series as to dividends and upon liquidation.
If fewer than all of the outstanding shares of
preferred stock of any series are to be redeemed, we will determine the number of shares that may be redeemed pro rata from the holders
of record of such shares in proportion to the number of such shares held or for which redemption
is requested by such holder or by any other equitable manner that we determine. Such determination will reflect adjustments to avoid
redemption of fractional shares.
Unless
otherwise specified in the applicable prospectus supplement, we will mail notice of redemption at least 30 days but not more than 60
days before the redemption date to each holder of record of preferred stock to be redeemed at the address shown on our stock transfer
books. Each notice shall state:
|
·
|
the number of shares
and series of preferred stock to be redeemed;
|
|
·
|
the place or places
where certificates for such preferred stock are to be surrendered for payment of the redemption
price;
|
|
·
|
that dividends on
the shares to be redeemed will cease to accrue on such redemption date;
|
|
·
|
the date on which
the holder’s conversion rights, if any, as to such shares shall terminate; and
|
|
·
|
the specific number
of shares to be redeemed from each such holder if fewer than all the shares of any series
are to be redeemed.
|
If notice
of redemption has been given and we have set aside the funds necessary for such redemption in trust for the benefit of the holders of
any shares called for redemption, then from and after the redemption date, dividends will cease to accrue on such shares, and all rights
of the holders of such shares will terminate, except the right to receive the redemption price.
Voting
Rights. Holders of preferred stock will not have any voting rights, except as required by law or as indicated in the applicable prospectus
supplement.
Unless otherwise provided for under the terms
of any series of preferred stock, no consent or vote of the holders of shares of preferred stock or any series thereof shall be required
for any amendment to our certificate of incorporation that would increase the number of authorized shares of preferred stock or the number
of authorized shares of any series thereof or decrease the number of authorized shares of preferred stock or the number of authorized
shares of any series thereof (but not below the number of authorized shares of preferred stock or such series, as the case may be, then
outstanding).
Conversion
Rights. The terms and conditions, if any, upon which any series of preferred stock is convertible into our common stock will be set
forth in the applicable prospectus supplement relating thereto. Such terms will include the number of shares of common stock into which
the shares of preferred stock are convertible, the conversion price, rate or manner of calculation thereof, the conversion period, provisions
as to whether conversion will be at our option or at the option of the holders of the preferred stock, the events requiring an adjustment
of the conversion price and provisions affecting conversion in the event of the redemption.
Common
Stock Warrants
As
of May 7, 2021, we had outstanding:
|
·
|
warrants
held by Silicon Valley Bank, or the SVB warrants, to purchase up to an aggregate of 55,000
shares of our common stock, at a weighted-average exercise price of $11.44 per share;
|
|
·
|
warrants
held by certain of our investors issued in connection with a publicly registered follow-on
offering, or the November 2017 warrants, to purchase up to aggregate of 11,935 shares of
our common stock, at a weighted-average exercise price of $0.55 per share; and
|
|
·
|
warrants
held by certain of our investors issued in connection with a private placement made in reliance
on the exemption provided by Section 4(a)(2) of the Securities Act and Rule 506(b) promulgated
thereunder as transactions not involving a public offering, or the March 2018 warrants, to
purchase up to an aggregate 1,326,819 shares of our common stock, at a weighted-average exercise
price of $0.55 per share.
|
These
warrants provide for adjustments in the event of specified mergers, reorganizations, reclassifications, stock dividends, stock splits
or other changes in our corporate structure. The SVB warrants are exercisable until November 24, 2024 and will be exercised automatically
on a net issuance basis if not exercised prior to the expiration date and if the then-current fair market value of one share of our common
stock is greater than the exercise price then in effect. The November 2017 warrants are exercisable until November 1, 2022 and as of
May 7, 2021, 9,988,065 of the November 2017 warrants had been exercised. The March 2018 warrants are exercisable until March 23, 2023
and as of May 7, 2021, 6,641,309 of the March 2018 warrants had been exercised.
Options
to Purchase our Common Stock
As
of May 7, 2021, options to purchase an aggregate of 15,243,500 shares of our common stock, at a weighted-average exercise price of
$1.87 per share, were outstanding.
Delaware
Anti-Takeover Law and Certain Charter and Bylaw provisions
The following summary of certain provisions
of Delaware law and of our certificate of incorporation and bylaws does not purport to be complete and is subject to and qualified in
its entirety by reference to Delaware law and to our certificate of incorporation and bylaws, copies of which are filed with the SEC
as exhibits to the registration statement of which this prospectus forms a part.
Delaware
Law. We are subject to Section 203 of the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation
from engaging in a “business combination” with any “interested stockholder” for three years following the date
that the person became an interested stockholder, unless either the interested stockholder attained such status with the approval
of our board of directors, the business combination is approved by our board of directors and stockholders in a prescribed manner or
the interested stockholder acquired at least 85% of our outstanding voting stock in the transaction in which it became an interested
stockholder. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested
stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or
person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled
by such entity or person.
The restrictions in Section 203 do not apply
to corporations that have elected, in the manner provided in Section 203, not to be subject to Section 203 of the DGCL or, with certain
exceptions, which do not have a class of voting stock that is listed on a national securities exchange or held of record by more than
2,000 stockholders. Our certificate of incorporation and bylaws do not opt out of Section 203.
Section 203 could delay or prohibit mergers or
other takeover or change in control attempts with respect to us and, accordingly, may discourage attempts to acquire us even though such
a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
Staggered
Board; Removal of Directors. Our certificate of incorporation and our bylaws divide our board of directors into three classes with
staggered three-year terms. In addition, our certificate of incorporation and our bylaws provide that directors may be removed only for
cause and only by the affirmative vote of the holders of 75% of our shares of common stock present in person or by proxy and entitled
to vote. Under our certificate of incorporation and bylaws, any vacancy on our board of directors, including a vacancy resulting from
an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office. Furthermore, our
certificate of incorporation provides that the authorized number of directors may be changed only by the resolution of our board of directors.
The classification of our board of directors and the limitations on the ability of our stockholders to remove directors, change the authorized
number of directors and fill vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking
to acquire, control of our company.
Stockholder
Action; Special Meeting of Stockholders; Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our certificate
of incorporation and our bylaws provide that any action required or permitted to be taken by our stockholders at an annual meeting or
special meeting of stockholders may only be taken if it is properly brought before such meeting and may not be taken by written action
in lieu of a meeting. Our certificate of incorporation and our bylaws also provide that, except as otherwise required by law, special
meetings of the stockholders can only be called by the chairman of our board of directors, our chief executive officer or our board of
directors. In addition, our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting
of stockholders, including proposed nominations of candidates for election to our board of directors. Stockholders at an annual meeting
may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of
our board of directors, or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and who
has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before
the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored
by the holders of a majority of our outstanding voting securities. These provisions also could discourage a third party from making a
tender offer for our common stock because even if the third party acquired a majority of our outstanding voting stock, it would be able
to take action as a stockholder, such as electing new directors or approving a merger, only at a duly called stockholders meeting and
not by written consent.
Super-Majority
Voting. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required
to amend a corporation’s certificate of incorporation or bylaws unless a corporation’s certificate of incorporation or bylaws,
as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our board of directors
or the affirmative vote of the holders of at least 75% of the votes that all our stockholders would be entitled to cast in any annual
election of directors. In addition, the affirmative vote of the holders of at least 75% of the votes that all our stockholders would
be entitled to cast in any election of directors is required to amend or repeal or to adopt any provisions inconsistent with any of the
provisions of our certificate of incorporation described above.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, Inc.
Stock
Market Listing
Our
common stock is listed for trading on the Nasdaq Global Market under the symbol “SESN.”
DESCRIPTION OF OUR DEPOSITARY
SHARES
General
We may, at our option, elect to offer fractional
shares of preferred stock, which we call depositary shares, rather than full shares of preferred stock. If we do, we will issue to the
public receipts, called depositary receipts, for depositary shares, each of which will represent a fraction, to be described in the applicable
prospectus supplement, of a share of a particular series of preferred stock. Unless otherwise provided in the prospectus supplement,
each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in a share of preferred stock
represented by the depositary share, to all the rights and preferences of the preferred stock represented by the depositary share. Those
rights include dividend, voting, redemption, conversion 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 between
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 deposit 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 a complete description of the terms of the depository shares. You should refer to the form of the
deposit agreement, our certificate of incorporation and the certificate of designation for the applicable series of preferred stock that
are, or will be, filed with the SEC.
Dividends
and Other Distributions
The depositary will distribute all cash dividends
or other cash distributions, if any, received in respect of the preferred stock underlying the depositary shares to the record holders
of depositary shares in proportion to the numbers 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 underlying preferred stock.
If there is a distribution other than in cash,
the depositary will distribute property (including securities) received by it to the record holders of depositary shares, unless the
depositary determines that it is not feasible to make the distribution. If this occurs, the depositary may, with our approval, adopt
another method for the distribution, including selling the property and distributing the net proceeds from the sale to the holders.
Liquidation
Preference
If
a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of the voluntary or involuntary
liquidation, dissolution or winding up of us, 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.
Withdrawal
of Stock
Unless
the related depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office of
the depositary, the holder of the depositary shares will be entitled to delivery, at the office of the depositary to or upon his or her
order, of the number of whole shares of the preferred stock and any money or other property represented by the depositary shares. If
the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing
the number of whole shares of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new depositary
receipt evidencing the excess number of depositary shares. In no event will the depositary deliver fractional shares of preferred stock
upon surrender of depositary receipts. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the deposit
agreement or receive depositary receipts evidencing depositary shares therefor.
Redemption
of Depositary Shares
Whenever we redeem shares of preferred stock
held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing shares
of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption price of the preferred stock to
be redeemed plus an amount equal to any accumulated and unpaid dividends on the preferred stock to the date fixed for redemption. The
redemption price per depositary share will be equal to the redemption price and any other amounts per share payable on the preferred
stock multiplied by the fraction of a share of preferred stock represented by one depositary share. If less than all the depositary shares
are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata or by any other equitable method as may
be determined by the depositary.
After the date fixed for redemption, depositary
shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of depositary shares will cease,
except the right to receive the monies payable upon redemption and any money or other property to which the holders of the depositary
shares were entitled upon redemption upon surrender to the depositary of the depositary receipts evidencing the depositary shares.
Voting
the Preferred Stock
Upon
receipt of notice of any meeting at which the holders of the 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 relating to that preferred stock. The record date
for the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock. Each record
holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the voting rights
pertaining to the number of shares of preferred stock represented by that holder’s depositary shares. The depositary will endeavor,
insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance with those
instructions, and we will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to
do so. The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the holders
of depositary shares representing that number of shares of preferred stock.
Charges
of Depositary
We
will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will
pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock.
Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and such other charges (including those
in connection with the receipt and distribution of dividends, the sale or exercise of rights, the withdrawal of the preferred stock and
the transferring, splitting or grouping of depositary receipts) as are expressly provided in the deposit agreement to be for their accounts.
If these charges have not been paid by the holders of depositary receipts, the depositary may refuse to transfer depositary shares, withhold
dividends and distributions and sell the depositary shares evidenced by the depositary receipt. A discussion of material U.S. federal
income tax considerations will be set forth in the applicable prospectus supplement.
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
us and the depositary. However, any amendment that 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 the holders of a majority of the outstanding depositary
shares. The deposit agreement may be terminated by the depositary or us only if:
|
·
|
all outstanding depositary
shares have been redeemed; or
|
|
·
|
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.
|
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time.
Any resignation or removal of the depositary will take effect upon our 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 of resignation or removal and must
be a bank or trust company having its principal office in the United States and having the requisite combined capital and surplus as
set forth in the applicable agreement.
Notices
The
depositary will forward to holders of depositary receipts all notices, reports and other communications, including proxy solicitation
materials received from us, that are delivered to the depositary and 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.
Limitation
of Liability
Neither
we nor the depositary will be liable if either we or it is prevented or delayed by law or any circumstance beyond its control in performing
its obligations. Our obligations and those of the depositary will be limited to performance in good faith of our and their duties thereunder.
We and the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, on information
provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent
to give such information and on documents believed to be genuine and to have been signed or presented by the proper party or parties.
DESCRIPTION
OF OUR WARRANTS
We
may issue warrants to purchase common stock, preferred stock, depositary shares or debt securities. We may offer warrants separately
or together with one or more additional warrants, common stock, preferred stock, depositary shares or debt securities, or any combination
of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit,
the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior
to the expiration date of the warrants. The applicable prospectus supplement will also describe the following terms of any warrants:
|
·
|
the specific designation
and aggregate number of, and the offering price at which we will issue, the warrants;
|
|
·
|
the currency or currency
units in which the offering price, if any, and the exercise price are payable;
|
|
·
|
the
date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if you may not continuously exercise the warrants throughout that period,
the specific date or dates on which you may exercise the warrants;
|
|
·
|
whether the warrants
are to be sold separately or with other securities as parts of units;
|
|
·
|
whether
the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form
of the unit and of any security included in that unit;
|
|
·
|
any applicable material
U.S. federal income tax considerations;
|
|
·
|
the identity of the
warrant agent for the warrants and of any other depositaries, execution or paying agents,
transfer agents, registrars or other agents;
|
|
·
|
the proposed listing,
if any, of the warrants or any securities purchasable upon exercise of the warrants on any
securities exchange;
|
|
·
|
the designation and
terms of any equity securities purchasable upon exercise of the warrants;
|
|
·
|
the designation, aggregate
principal amount, currency and terms of any debt securities that may be purchased upon exercise
of the warrants;
|
|
·
|
if
applicable, the designation and terms of the preferred stock or depositary shares with which
the warrants are issued and the number of warrants issued with each security;
|
|
·
|
if
applicable, the date from and after which any warrants issued as part of a unit and the related
debt securities, preferred stock, depositary shares or common stock will be separately transferable;
|
|
·
|
the
number of shares of common stock, preferred stock or depositary shares purchasable upon exercise
of a warrant and the price at which those shares may be purchased;
|
|
·
|
if applicable, the
minimum or maximum amount of the warrants that may be exercised at any one time;
|
|
·
|
information with respect
to book-entry procedures, if any;
|
|
·
|
the anti-dilution
provisions of, and other provisions for changes to or adjustment in the exercise price of,
the warrants, if any;
|
|
·
|
any redemption or
call provisions; and
|
|
·
|
any additional terms
of the warrants, including terms, procedures and limitations relating to the exchange or
exercise of the warrants.;
|
Description of Outstanding Warrants
As of May 7, 2021, there were 1,393,754 warrants
to purchase shares of our common stock outstanding. See “Description of Our Capital Stock—Common Stock Warrants.”
DESCRIPTION
OF OUR RIGHTS
This section describes the general terms of the
rights that we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement or free writing prospectus
will contain the material terms and conditions for each right. The accompanying prospectus supplement or free writing prospectus may
add, update or change the terms and conditions of the rights as described in this prospectus.
The particular terms of each issue of rights,
the rights agreement relating to the rights and the rights certificates representing rights will be described in the applicable prospectus
supplement or free writing prospectus, including, as applicable:
|
·
|
the
title of the rights;
|
|
·
|
the
date of determining the stockholders entitled to the rights distribution;
|
|
·
|
the
title, aggregate number of shares of common stock or preferred stock purchasable upon exercise
of the rights;
|
|
·
|
the
aggregate number of rights issued;
|
|
·
|
the
date, if any, on and after which the rights will be separately transferable;
|
|
·
|
the
date on which the right to exercise the rights will commence and the date on which the right
will expire;
|
|
·
|
any
applicable material U.S. federal income tax considerations; and
|
|
·
|
any other terms of the rights, including
terms, procedures and limitations relating to the distribution, exchange and exercise of
the rights.
|
DESCRIPTION
OF OUR UNITS
The following, together with the additional information
we may include in the applicable prospectus supplement or free writing prospectus, summarizes the material terms and provisions of the
units that we may offer under this prospectus. While the terms summarized below will apply generally to any units we may offer, we will
describe the particular terms of any series of units in more detail in the applicable prospectus supplement or free writing prospectus.
We may, from time to time, issue units comprised
of one or more of the other securities that may be offered under this prospectus, in any combination. Each unit will be issued so that
the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately at any time, or at any time before a specified date.
We will describe in the applicable prospectus
supplement or free writing prospectus the terms of the series of units, including:
|
·
|
the material 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;
|
|
·
|
the rights and obligations
of the unit agent, if any;
|
|
·
|
any material provisions
relating to the issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units;
|
|
·
|
any applicable material
U.S. federal income tax considerations; and
|
|
·
|
any material provisions
of the governing unit agreement that differ from those described above.
|
Issuance
in Series
We may issue units in such amounts and in numerous
distinct series as we determine.
FORMS
OF SECURITIES
Each
debt security, depositary share, warrant, unit and security right may be represented either by a certificate issued in definitive form
to a particular investor or by one or more global securities representing the entire issuance of securities. Unless the applicable prospectus
supplement provides otherwise, certificated securities in definitive form and global securities will be issued in registered form. Definitive
securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive
payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, depositary
shares, warrants, rights or units represented by these global securities. The depositary maintains a computerized system that will reflect
each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank,
trust company or other representative, as we explain more fully below.
Global
Securities
We may issue the debt securities, depositary
shares, warrants, rights or units in the form of one or more fully registered global securities that will be deposited with a depositary
or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those
cases, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by global securities. Unless and until it is exchanged in whole for securities
in definitive registered form, a global security may not be transferred except as a whole by and among the depositary for the global
security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of
the depositary arrangement with respect to any securities to be represented by a global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a global
security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through
participants. Upon the issuance of a global security, the depositary will credit, on its book-entry registration and transfer system,
the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants.
Any underwriters, agents or dealers participating in the distribution of the securities will designate the accounts to be credited. Ownership
of beneficial interests in a global security will be shown on, and the transfer of ownership interests will be effected only through,
records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical
delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in
global securities.
So long as the depositary, or its nominee, is
the registered owner of a global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder
of the securities represented by the global security for all purposes under the applicable indenture, deposit agreement, warrant agreement,
rights agreement or unit agreement. Except as described below, owners of beneficial interests in a global security will not be entitled
to have the securities represented by the global security registered in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable
indenture, deposit agreement, warrant agreement, rights agreement or unit agreement. Accordingly, each person owning a beneficial interest
in a global security must rely on the procedures of the depositary for that global security and, if that person is not a participant,
on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable
indenture, deposit agreement, warrant agreement, right agreement or unit agreement. We understand that under existing industry practices,
if we request any action of holders or if an owner of a beneficial interest in a global security desires to give or take any action that
a holder is entitled to give or take under the applicable indenture, deposit agreement, warrant agreement, rights agreement or unit agreement,
the depositary for the global security would authorize the participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act
upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments
on debt securities, and any payments to holders with respect to depositary shares, warrants or units, represented by a global security
registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered
owner of the global security. None of us, or any trustee, warrant agent, unit agent or other agent of ours, or any agent of any trustee,
warrant agent or unit agent will have any responsibility or liability for any aspect of the records relating to payments made on account
of beneficial ownership interests in the global security or for maintaining, supervising or reviewing any records relating to those beneficial
ownership interests.
We expect that the depositary for any of the
securities represented by a global security, upon receipt of any payment to holders of principal, premium, interest or other distribution
of underlying securities or other property on that registered global security, will immediately credit participants’ accounts in
amounts proportionate to their respective beneficial interests in that global security as shown on the records of the depositary. We
also expect that payments by participants to owners of beneficial interests in a global security held through participants will be governed
by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers
or registered in “street name,” and will be the responsibility of those participants.
If the depositary for any of the securities represented
by a global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under
the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90
days, we will issue securities in definitive form in exchange for the global security that had been held by the depositary. Any securities
issued in definitive form in exchange for a global security will be registered in the name or names that the depositary gives to the
relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions
will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the global
security that had been held by the depositary.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered by this prospectus separately or together:
|
·
|
directly to purchasers;
|
|
·
|
to or through underwriters;
|
|
·
|
through
a block trade in which the broker or dealer engaged to handle the block trade will attempt
to sell the securities as agent, but may position and resell a portion of the block as principal
to facilitate the transaction; or
|
|
·
|
through a combination
of any of these methods of sale.
|
In addition, we may issue the securities being
offered by this prospectus as a dividend or distribution to our existing security holders. This
prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the
applicable prospectus supplement or free writing prospectus.
We may
directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement
relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions
that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable
prospectus supplement, on a firm commitment basis.
We may effect the distribution of the securities
from time to time in one or more transactions:
|
·
|
at a fixed price,
or prices, which may be changed from time to time;
|
|
·
|
at market prices prevailing
at the time of sale;
|
|
·
|
at prices related
to such prevailing market prices; or
|
For example, we may engage in at-the-market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. We may also sell securities through a rights
offering, forward contracts or similar arrangements.
Except as described in a prospectus supplement
or a free writing prospectus, the securities issued and sold under this prospectus will have no established trading market, other than
our common stock, which is listed on the Nasdaq Global Market. Except as described in a prospectus supplement or a free writing prospectus,
any shares of our common stock sold pursuant to this prospectus will be eligible for listing and trading on the Nasdaq Global Market,
subject to official notice of issuance. Any underwriters to whom securities are sold by us for public offering and sale may make a market
in the securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
The securities, other than our common stock, may or may not be listed on a national securities exchange or other trading market.
We will set forth in a prospectus supplement
or free writing prospectus:
|
·
|
the terms of any underwriting
or other agreement that we reach relating to sales under this prospectus;
|
|
·
|
the method of distribution
of the securities;
|
|
·
|
the names of any agents,
underwriters or dealers, including any managing underwriters, used in the offering of securities;
|
|
·
|
the terms of any direct
sales, including the terms of any bidding or auction process, or the terms of any other transactions;
|
|
·
|
the compensation payable
to agents, underwriters and dealers, which may be in the form of discounts, concessions or
commissions;
|
|
·
|
any activities that
may be undertaken by agents, underwriters and dealers to stabilize, maintain or otherwise
affect the price of the securities; and
|
|
·
|
any indemnification
and contribution obligations owing to agents, underwriters and dealers.
|
If any
agents, underwriters or dealers are utilized in the sale of the securities in respect of which this prospectus is delivered, we will
enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus
supplement relating to such offering the names of the underwriters, agents or dealers and the terms of the related agreement with them.
If we sell directly to institutional investors
or others, they may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities.
Unless otherwise indicated in a prospectus supplement or free writing prospectus, if we sell through an agent, such agent will be acting
on a best efforts basis for the period of its appointment. Any agent may be deemed to be an “underwriter” of the securities
as that term is defined in the Securities Act. If a dealer is used in the sale of the securities, we or an underwriter will sell securities
to the dealer, as principal. The dealer may resell the securities to the public at varying prices to be determined by the dealer at the
time of resale.
Remarketing firms, agents, underwriters, dealers
and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the
ordinary course of business.
We may authorize agents, underwriters and dealers
to solicit offers by certain institutional investors to purchase offered securities under contracts providing for payment and delivery
on a future date specified in a prospectus supplement or free writing prospectus. The prospectus supplement or free writing prospectus
will also describe the public offering price for the securities and the commission payable for solicitation of these delayed delivery
contracts. Delayed delivery contracts will contain definite fixed price and quantity terms. The obligations of a purchase under these
delayed delivery contracts will be subject to only two conditions:
|
·
|
that
the institution’s purchase of the securities at the time of delivery of the securities
is not prohibited under the law of any jurisdiction to which the institution is subject;
and
|
|
·
|
if
the securities are also being sold to underwriters acting as principals for their own account,
the underwriters shall have purchased such securities not sold for delayed delivery. The
underwriters and other persons acting as our agents will not have any responsibility in respect
of the validity or performance of delayed delivery contracts.
|
To the extent permitted by and in accordance
with Regulation M under the Exchange Act, in connection with an offering an underwriter may engage in over-allotments, stabilizing transactions,
short covering transactions and penalty bids. Over-allotments involve sales in excess of the offering size, which creates a short position.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by
the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to
be higher than it would be otherwise. If commenced, the underwriters may discontinue any of the activities at any time.
To the extent permitted by and in accordance
with Regulation M under the Exchange Act, any underwriters who are qualified market makers on Nasdaq may engage in passive market making
transactions in the securities on Nasdaq during the business day prior to the pricing of an offering, before the commencement of offers
or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as
passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid
for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded.
The specific terms of any lock-up provisions
in respect of any given offering will be described in the applicable prospectus supplement or free writing prospectus.
Under Rule
15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties
to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securities
may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade
securities on any date prior to the second business day before the original issue date for your securities, you will be required, by
virtue of the fact that your securities initially are expected to settle more than two scheduled business days after the trade date for
your securities, to make alternative settlement arrangements to prevent a failed settlement.
In compliance
with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission or agency fees
or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed
8% of the proceeds from any offering pursuant to this prospectus and any applicable prospectus supplement.
The underwriters, dealers and agents may engage
in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
No securities may be sold under this prospectus
without delivery, in paper format or in electronic format, or both, of the applicable prospectus supplement or free writing prospectus
describing the method and terms of the offering.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Hogan Lovells US LLP. As appropriate, legal counsel
representing the underwriters, dealers or agents will be named in the accompanying prospectus supplement and may opine to certain legal
matters.
EXPERTS
Ernst
& Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10-K for the year ended December 31, 2020, as set forth in their report, which contains an explanatory paragraph describing
conditions that raise substantial doubt about the Company’s ability to continue as a going concern as described in Note 1 to the
consolidated financial statements, and which is incorporated by reference in this prospectus and elsewhere in the registration statement.
Our financial statements are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate by reference”
information from other documents that we file with it, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus.
We incorporate by reference into this prospectus
and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the
SEC:
|
·
|
our
Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying
such reports that relate to such items) filed with the SEC on January
11, 2021, January
13, 2021, January
19, 2021, February
1, 2021, February
16, 2021, February
17, 2021, March
1, 2021, March
8, 2021, March
15, 2021, March
22, 2021, March
30, 2021, March 31, 2021,
April
1, 2021,
April 5, 2021, April
7, 2021, April
28, 2021, May
3, 2021, May
4, 2021 and May
10, 2021;
|
In addition, all documents that we file with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement of which
this prospectus is a part and prior to the effectiveness of such registration statement and all such documents that we file with the
SEC after the date of this prospectus and before the termination of the offering of our securities shall be deemed incorporated by reference
into this prospectus and to be a part of this prospectus from the respective dates of filing such documents.
Any statement contained in a document incorporated
by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference in
this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You may request, orally or in writing, a copy
of any or all of the documents incorporated herein by reference. These documents will be provided to you at no cost, by contacting: Sesen
Bio, Inc., Attn: Chief Financial Officer, 245 First Street, Suite 1800, Cambridge, MA 02142 or (617) 444-8550. In addition, copies of
any or all of the documents incorporated herein by reference may be accessed at our website at www.sesenbio.com. The information on such
website is not incorporated by reference and is not a part of this prospectus.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet website
at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically
with the SEC. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge,
as soon as reasonably practicable after these reports are filed with, or furnished to, the SEC, at our website at www.sesenbio.com. Information
contained on or accessible through our website is not a part of this prospectus or any prospectus supplement, and the inclusion of our
website address in this prospectus is an inactive textual reference only.
Up
to $100,000,000
Shares
of Common Stock
PROSPECTUS
SUPPLEMENT
Jefferies
July
14, 2021
Sesen Bio (NASDAQ:SESN)
Historical Stock Chart
From Mar 2024 to Apr 2024
Sesen Bio (NASDAQ:SESN)
Historical Stock Chart
From Apr 2023 to Apr 2024