As filed with the Securities and Exchange
Commission on March 13, 2020
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Sorrento
Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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33-0344842
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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4955
Directors Place
San Diego, California 92121
(858) 203-4100
(Address, including zip code, and telephone number, including area code, of registrant’s principal
executive offices)
Dr. Henry
Ji
Chief Executive Officer
Sorrento Therapeutics, Inc.
4955 Directors Place
San Diego, California 92121
(858) 203-4100
(Name, address including zip code, and telephone number, including area code, of agent for service)
With copies to:
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Deborah Telman, Esq.
Senior Vice President and General Counsel
Sorrento Therapeutics, Inc.
4955 Directors Place
San Diego, CA 92121
(858) 203-4100
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Jeffrey T. Hartlin, Esq.
Samantha H. Eldredge, Esq.
Paul Hastings LLP
1117 S. California Avenue
Palo Alto, CA 94304
(650) 320-1804
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Approximate date of commencement of
proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being
registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box. ¨
If any of the securities being registered
on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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Emerging growth company
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¨
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
Title of Each Class of
Securities to be Registered
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Amount to be
Registered (1)
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Proposed
Maximum
Offering Price Per
Unit
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Proposed
Maximum
Aggregate
Offering Price (2)
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Amount of
Registration Fee (3)
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Common Stock, $0.0001 par value per share
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—
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—
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—
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—
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Preferred Stock, $0.0001 par value per share
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—
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—
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—
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—
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Debt Securities
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Warrants
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—
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—
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—
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—
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Units(4)
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—
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—
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—
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—
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Total
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—
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—
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$1,000,000,000
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$129,800.00(5)
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(1)
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There are being registered hereunder such indeterminate number of shares of common stock and preferred stock; such indeterminate
principal amount of debt securities; such indeterminate number of warrants to purchase common stock, preferred stock and/or debt
securities and such indeterminate number of units consisting of any combination of common stock, preferred stock, debt securities
and/or warrants as may be sold by the Registrant as shall have an aggregate initial offering price not to exceed $1,000,000,000.
Any securities registered hereunder may be sold separately or in combination with other securities registered hereunder. The proposed
maximum offering price of the securities will be determined, from time to time, by the Registrant in connection with the issuance
by the Registrant of the securities registered hereunder. If any debt securities are issued at an original issue discount, then
the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price
not to exceed $1,000,000,000, less the aggregate dollar amount of all securities previously issued hereunder. The securities registered
hereunder also include such indeterminate number of shares of common stock and preferred stock and amount of debt securities as
may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, or
upon exercise of warrants or units or pursuant to anti-dilution provisions of any such securities. In addition, pursuant to Rule
416 under the Securities Act of 1933, as amended, the shares of common stock and preferred stock being registered hereunder include
such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to such shares being registered
hereunder as a result of stock splits, stock dividends or similar transactions, as applicable.
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(2)
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The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act based on the proposed maximum aggregate offering price of
all securities listed.
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(4)
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Each unit will represent an interest in two or more other securities, which may or may not be separable from one another.
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(5)
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Pursuant to Rule 415(a)(6) and Rule 457(p) under the Securities Act, the Registrant hereby
offsets the total registration fee due under this Registration Statement by the amount of the filing fee associated with the
unsold securities from the Registrant’s Form S-3 Registration Statement, filed with the Commission on November 9, 2017
(SEC File No. 333-221443), as amended (the “Prior Registration Statement”),
which included $350,000,000 of shares of common stock, preferred stock, debt securities, warrants and units to be sold by the
Registrant. As of the date hereof, the Registrant has sold $309,121,905.59 of securities under the Prior Registration
Statement and may sell up to an additional $26,429,872.00 of shares of common stock pursuant to that certain Common Stock
Purchase Agreement, dated February 10, 2020, between the Company and Aspire Capital Fund, LLC under the Prior Registration
Statement, leaving a balance of $14,448,222.41 of unsold or unallocated securities (the “Unsold Securities”). As
a result, the Registrant is applying the balance of the registration fee ($1,798.80) previously paid for the Unsold
Securities to the registration fee for this Registration Statement, with the remaining $128,001.20 paid herewith. The Unsold
Securities are being carried forward to and registered on this Registration Statement. To the extent that, after the filing
date hereof and prior to the effectiveness of this Registration Statement, the Registrant sells any Unsold Securities
pursuant to the Prior Registration Statement, the Registrant will identify in a pre-effective amendment to this Registration
Statement the updated amount of Unsold Securities from the Prior Registration Statement to be included in this Registration
Statement pursuant to Rule 415(a)(6) and the updated amount of registration fee for this Registration Statement. Pursuant to
Rule 415(a)(6) under the Securities Act, the offering of the Unsold Securities under the Prior Registration Statement will be
deemed terminated as of the date of effectiveness of this Registration Statement.
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The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a
further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED MARCH 12, 2020
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PROSPECTUS
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$1,000,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell, from time to time in one or more offerings,
up to $1,000,000,000 in the aggregate of any combination of the securities identified above from time to time in one or more offerings,
either individually or in combination with other securities. We may also offer common stock or preferred stock upon conversion
of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the
exercise of warrants.
Each time we offer and sell securities, we will provide a supplement
to this prospectus that contains specific information about the offering and the amounts, prices and terms of the securities. We
may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus
and any related free writing prospectuses may also add, update or change information contained in this prospectus with respect
to that offering. You should carefully read this prospectus and the applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference, before you invest in any of our securities.
We may offer and sell the securities described in this prospectus
and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through
a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will
be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled
“About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without
delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Investing in our securities involves a high degree of
risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” on page 5
of this prospectus, the applicable prospectus supplement and in any applicable free writing prospectuses, and under similar headings
in the documents that are incorporated by reference into this prospectus.
Our common stock is currently listed on
the Nasdaq Capital Market under the symbol “SRNE.” On March 11, 2020, the last reported sale price of our common
stock was $1.85 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing
on the Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by the applicable prospectus
supplement.
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 , 2020.
Table
of Contents
Page
ABOUT THIS
PROSPECTUS
This prospectus is
part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, utilizing
a “shelf” registration process. Under this shelf registration process, we may offer and sell shares of our common stock
and preferred stock, various series of debt securities, warrants to purchase any of such securities and/or units consisting of
any combination of such securities, either individually or in combination with other securities, in one or more offerings, up to
a total dollar amount of $1,000,000,000. This prospectus provides you with a general description of the securities we may offer.
Each time we offer
securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the
terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement and any related free writing prospectus we have authorized for
use in connection with a specific offering may also add, update or change any of the information contained in this prospectus or
in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully this prospectus, the
applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection with a specific offering,
together with the information incorporated herein by reference as described under the section entitled “Incorporation of
Documents by Reference”, before buying any of the securities being offered.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only
on the information contained in, or incorporated by reference into, this prospectus, the applicable prospectus supplement and any
free writing prospectuses, along with the information contained in any free writing prospectuses we have authorized for use in
connection with a specific offering. We have not authorized anyone to provide you with different or additional information. This
prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is
lawful to do so.
The information appearing
in this prospectus, the applicable prospectus supplement or any related free writing prospectus is accurate only as of the date
on the front of the document and any information we have incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus, the applicable prospectus supplement or any related
free writing prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects may
have changed since those dates.
This prospectus contains
summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents
for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents
referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement
of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where
You Can Find More Information”.
SUMMARY
This summary highlights
selected information that is presented in greater detail elsewhere in this prospectus or incorporated by reference in this prospectus.
Because it is only a summary, it does not contain all of the information you should consider before investing in our common stock,
preferred stock, debt securities, warrants or units, and it is qualified in its entirety by, and should be read in conjunction
with, the more detailed information included elsewhere in this prospectus. Before you decide whether to purchase shares of our
common stock or preferred stock, or our debt securities, warrants or units, you should read this entire prospectus, the applicable
prospectus supplement and any related free writing prospectus carefully, including the risks of investing in our securities discussed
under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus,
and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully
read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the
registration statement of which this prospectus is a part. Unless the context otherwise requires, the terms “Sorrento,”
“the Company,” “we,” “us” and “our” in this prospectus refer to Sorrento Therapeutics,
Inc. and its subsidiaries.
Business Overview
Sorrento
Therapeutics, Inc. (Nasdaq: SRNE), together with its subsidiaries, or collectively, Sorrento, the Company, we, us and our, is
a clinical stage and commercial biopharma company focused on delivering innovative and clinically meaningful therapies to
patients and their families, to address unmet medical needs. We also have programs assessing the use of our technologies and products in
autoimmune, inflammatory and neurodegenerative diseases.
At our core, we
are an antibody-centric company and leverage our proprietary G-MAB™ library and targeted delivery modalities to
generate the next generation of cancer therapeutics. Our fully human antibodies include PD-1, PD-L1, CD38, CD123, CD47,
CTLA-4, c-MET, VEGFR2, CCR2 and CD137 among others.
Our vision is to leverage
these antibodies in conjunction with proprietary targeted delivery modalities to generate the next generation of cancer therapeutics.
These modalities include proprietary chimeric antigen receptor T-cell therapy, or CAR-T, dimeric antigen receptor T-cell therapy,
or DAR-T, antibody drug conjugates, or ADC, as well as bispecific antibody approaches. We acquired Sofusa®, a revolutionary
drug delivery system, in July 2018, which delivers biologics directly into the lymphatic system to potentially achieve improved
efficacy and fewer adverse effects than standard parenteral immunotherapy. Additionally, our majority owned subsidiary, Scilex
Holding Company, or Scilex Holding, acquired the assets of Semnur Pharmaceuticals, Inc., or Semnur, in March 2019. Semnur’s
SEMDEXATM (SP-102) compound has the potential to become the first Food and Drug Administration, or FDA,-approved epidural
steroid product for the treatment of sciatica.
With each of our
clinical and pre-clinical programs, we aim to tailor our therapies to treat specific stages in the evolution of cancer, from
elimination, to equilibrium and escape. In addition, our objective is to focus on tumors that are resistant to current
treatments and where we can design focused trials based on a genetic signature or biomarker to ensure patients have the best
chance of a durable and significant response. We have several immuno-oncology programs that are in or near to entering the
clinic. These include cellular therapies, an oncolytic virus and a palliative care program targeted to treat intractable
cancer pain. Our cellular therapy programs focus on CAR-T for adoptive cellular immunotherapy to treat both solid and liquid
tumors. We have reported early data from Phase I trials of our carcinoembryonic antigen, or CEA, -directed CAR-T program. We
have treated five patients with stage 4, unresectable adenocarcinoma (four with pancreatic and one with colorectal cancer)
and CEA-positive liver metastases with anti-CEA CAR-T. We successfully submitted an Investigational New Drug application, or
IND, for anti-CD38 CAR-T for the treatment of refractory or relapsed multiple myeloma and obtained approval from
the FDA to commence a human clinical trial for this indication in early 2018. We
have dosed five patients and are continuing the enrollment of additional patients.
Broadly speaking,
we believe we are one of the world’s leading CAR-T and DAR-T companies today due to our investments in technology and
infrastructure, which have enabled significant progress in developing our next-generation non-viral,
“off-the-shelf” allogeneic DAR-T solutions. With “off-the-shelf” solutions, DAR-T therapy can truly
become a drug product rather than a treatment procedure. One of the approaches we have taken to develop the
“off-the-shelf” allogeneic CAR-T solutions is through Celularity, Inc., our joint venture with Celgene, United
Therapeutics and others, or Celularity. Celularity focuses on developing cell therapies with placenta-derived and cord blood T cells, which
have natural allogeneic “off-the-shelf” characteristics.
Outside of
immune-oncology programs, as part of our global aim to provide a wide range of therapeutic products to meet underserved
markets, we have made investments in non-opioid pain management. These include resiniferatoxin, or RTX, which is a
non-opioid-based toxin that specifically ablates nerves that conduct chronic and inflammatory pain signals while leaving
other nerve functions intact and is being studied for chronic pain treatment. RTX has been granted orphan drug status for the
treatment of intractable pain with end-stage cancer and two Phase I trials (intrathecal and epidural routes) in that
indication are concluding. A Phase Ib trial studying tolerance and efficacy of RTX for the control of osteoarthritis knee
pain was initiated in late 2018 and intermediate results have shown efficacy with no dose limiting toxicities. The
osteoarthritis trial enrolled the last patient in the first quarter of 2020. Clinical data is expected to be available soon
after the last patient enrolled completes the day 84 visit (end-point) at the end of April 2020. Knee arthritis
registrational trials are planned to start later in the first half of 2020 with an Australia/USA Phase III trial, pending
meeting with the FDA and receiving clearance to proceed.
In the area of
non-opioid pain management, we have in-house developed and acquired proprietary technologies to responsibly develop next
generation, branded pharmaceutical products to better manage patients’ medical conditions and maximize the quality of
life of patients and healthcare providers. The flagship product of our majority-owned subsidiary, Scilex Pharmaceuticals Inc., or Scilex Pharma, ZTlido® (lidocaine topical system) 1.8%, or ZTlido, is a next-generation lidocaine delivery system which was
approved by the FDA for the treatment of pain associated with postherpetic neuralgia, a severe neuropathic pain condition, in
February 2018, and was commercially launched in late October 2018. Scilex Pharma has now built a full commercial
organization, which includes sales, marketing, market access, and medical affairs. ZTlido® has demonstrated superior
adhesion in comparative head-to-head studies as compared to Lidoderm and is manufactured by our Japanese partner in their
state-of-the-art manufacturing facility.
For a complete description
of our business, financial condition, results of operations and other important information, we refer you to our filings with
the SEC that are incorporated by reference in this prospectus, including our Annual
Report on Form 10-K for the year ended December 31, 2019. For instructions on how to find copies of these documents, see “Where
You Can Find More Information”.
See the section entitled
“Risk Factors” in this prospectus for a discussion of some of the risks relating to the execution of our business strategy.
Corporate Information
On September 21, 2009,
QuikByte Software, Inc., a Colorado corporation and shell company, or QuikByte, consummated its acquisition of Sorrento Therapeutics,
Inc., a Delaware corporation and private concern, or STI, in a reverse merger, or the Merger. Pursuant to the Merger, all of the
issued and outstanding shares of STI common stock were converted into an aggregate of 6,775,032 shares of QuikByte common stock
and STI became a wholly owned subsidiary of QuikByte. The holders of QuikByte’s common stock immediately prior to the Merger
held an aggregate of 2,228,333 shares of QuikByte’s common stock immediately following the Merger.
We were originally
incorporated as San Diego Antibody Company in California in 2006 and were renamed “Sorrento Therapeutics, Inc.” and
reincorporated in Delaware in 2009, prior to the Merger. QuikByte was originally incorporated in Colorado in 1989. Following the
Merger, on December 4, 2009, QuikByte reincorporated under the laws of the State of Delaware, or the Reincorporation. Immediately
following the Reincorporation, on December 4, 2009, we merged with and into QuikByte, the separate corporate existence of STI ceased
and QuikByte continued as the surviving corporation, or the Roll-Up Merger. Pursuant to the certificate of merger filed in connection
with the Roll-Up Merger, QuikByte’s name was changed from “QuikByte Software, Inc.” to “Sorrento Therapeutics,
Inc.
Our principal executive
offices are located at 4955 Directors Place, San Diego, CA 92121, and our telephone number at that address is (858) 203-4100.
Our website is www.sorrentotherapeutics.com. Any information contained on, or that can be accessed through, our website is not
incorporated by reference into, nor is it in any way part of this prospectus and should not be relied upon in connection with making
any decision with respect to an investment in our securities. We are required to file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may obtain any of the documents filed by us with the SEC at no cost from the
SEC’s website at http://www.sec.gov.
RISK FACTORS
Investing in any securities
offered pursuant to this prospectus, the applicable prospectus supplement and any related free writing prospectus involves a high
degree of risk. Before making an investment decision, you should carefully consider the risks described under “Risk
Factors” in the applicable prospectus supplement, any related free writing prospectus and in our most recent Annual Report
on Form 10-K, or in any updates in our Quarterly Reports on Form 10-Q, together with all of the other information appearing in
or incorporated by reference into this prospectus, the applicable prospectus supplement and any related free writing prospectus,
before deciding whether to purchase any of the securities being offered. Our business, financial condition or results of operations
could be materially adversely affected by any of these risks. The occurrence of any of these risks might cause you to lose all
or part of your investment in the offered securities.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any
accompanying prospectus supplement and the documents incorporated by reference into this prospectus may contain 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, about Sorrento. These forward-looking statements are intended
to be covered by the safe harbor for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995.
Forward-looking statements are not statements of historical fact, and can be identified by the use of forward-looking terminology
such as “believes”, “expects”, “may”, “will”, “could”, “should”,
“projects”, “plans”, “goal”, “targets”, “potential”, “estimates”,
“pro forma”, “seeks”, “intends” or “anticipates” or the negative thereof or comparable
terminology. Forward-looking statements include discussions of strategy, financial projections, guidance and estimates (including
their underlying assumptions), statements regarding plans, objectives, expectations or consequences of various transactions, and
statements about the future performance, operations, products and services of Sorrento. We caution our stockholders and other
readers not to place undue reliance on such statements.
You should read this
prospectus, any accompanying prospectus supplement and the documents incorporated by reference completely and with the understanding
that our actual future results may be materially different from what we currently expect. Our business and operations are and
will be subject to a variety of risks, uncertainties and other factors. Consequently, actual results and experience may materially
differ from those contained in any forward-looking statements. Such risks, uncertainties and other factors that could cause actual
results and experience to differ from those projected include, but are not limited to, the risk factors set forth in Part I -
Item 1A, “Risk Factors”, in our Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the SEC on March 3, 2020, and elsewhere in
the other documents incorporated by reference into this prospectus.
You should assume that
the information appearing in this prospectus, any accompanying prospectus supplement, any related free writing prospectus and any
document incorporated herein by reference is accurate as of its date only. Because the risk factors referred to above could
cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our
behalf, you should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only
as of the date on which it is made. New factors emerge from time to time, and it is not possible for us to predict which factors
will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination
of factors, may cause actual results to differ materially from those contained in any forward-looking statements. All written or
oral forward-looking statements attributable to us or any person acting on our behalf made after the date of this prospectus are
expressly qualified in their entirety by the risk factors and cautionary statements contained in and incorporated by reference
into this prospectus. Unless legally required, we do not undertake any obligation to release publicly any revisions to such forward-looking
statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events.
USE OF PROCEEDS
Except as otherwise
provided in the applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with
a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by this prospectus, if
any, for working capital and general corporate purposes, which may include capital expenditures, research and development expenditures,
regulatory affairs expenditures, clinical trial expenditures, acquisitions of new technologies and investments, business combinations
and the repayment, refinancing, redemption or repurchase of indebtedness or capital stock.
The intended application
of proceeds from the sale of any particular offering of securities using this prospectus will be described in the accompanying
prospectus supplement relating to such offering. The precise amount and timing of the application of these proceeds will depend
upon a number of factors, such as the timing and progress of our research and development efforts, our funding requirements and
the availability and costs of other funds. Pending application of the net proceeds as described above, we intend to temporarily
invest the proceeds in short-term, interest-bearing instruments.
DESCRIPTION
OF CAPITAL STOCK
General Matters
As of December 31,
2019, our authorized capital stock consisted of 750,000,000 shares of common stock, $0.0001 par value per share, and 100,000,000
shares of preferred stock, $0.0001 par value per share. Our board of directors, or our Board, may establish the rights and preferences
of the preferred stock from time to time. As of December 31, 2019, there were 167,798,120
shares of our common stock issued and outstanding and no shares of preferred stock issued and outstanding.
Common Stock
Holders
of our common stock are entitled to one vote per share. Our Restated Certificate of
Incorporation, as amended, or our Certificate of Incorporation, does not provide for cumulative voting. Holders of our common
stock are entitled to receive ratably such dividends, if any, as may be declared by our Board
out of legally available funds. However, the current policy of our Board is to retain earnings, if any, for our operations and
potential expansion of our business. Upon liquidation, dissolution or winding-up, the holders of our common stock are
entitled to share ratably in all of our assets which are legally available for distribution, after payment of or provision for
all liabilities. The holders of our common stock have no preemptive, subscription,
redemption or conversion rights.
Preferred Stock
As
of the date of this prospectus, no shares of preferred stock are issued and outstanding. Our Certificate of Incorporation provides
that our Board may by resolution, without further vote or action by the stockholders, establish one or more classes or series of
preferred stock having the number of shares and relative voting rights, designation, dividend rates, liquidation, and other rights,
preferences, and limitations as may be fixed by them without further stockholder approval. Once designated by our Board, each series
of preferred stock will have specific financial and other terms that will be set forth in the applicable certificate of designation
for the series. Prior to the issuance of shares of each series of preferred stock, our Board is required by the General Corporation
Law of the State of Delaware, or the DGCL, and our Certificate of Incorporation to adopt resolutions and file a certificate of
designation with the Secretary of State of the State of Delaware. The certificate of designation fixes for each class or series
the designations, powers, preferences, rights, qualifications, limitations and restrictions, including, but not limited to, some
or all of the following:
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(a)
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The distinctive designation of such series and the number of shares which shall constitute such
series, which number may be increased (except where otherwise provided by our Board in creating such series) or decreased (but
not below the number of shares thereof then outstanding) from time to time by resolution of our Board;
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(b)
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The rate and manner of payment of dividends payable on shares of such series, including the dividend
rate, date of declaration and payment, whether dividends shall be cumulative, and the conditions upon which and the date from which
such dividends shall be cumulative;
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(c)
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Whether shares of such series shall be redeemable, the time or times when, and the price or prices
at which, shares of such series shall be redeemable, the redemption price, the terms and conditions of redemption, and the sinking
fund provisions, if any, for the purchase or redemption of such shares;
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(d)
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The amount payable on shares of such series and the rights of holders of such shares in the event
of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company;
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(e)
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The rights, if any, of the holders of shares of such series to convert such shares into, or exchange
such shares for, shares of common stock, other securities, or shares of any other class or series of preferred stock and the terms
and conditions of such conversion or exchange;
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(f)
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The voting rights, if any, and whether full or limited, of the shares of such series, which may
include no voting rights, one vote per share, or such higher or lower number of votes per share as may be designated by our Board;
and
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(g)
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The preemptive or preferential rights, if any, of the holders of shares of such series to subscribe
for, purchase, receive, or otherwise acquire any part of any new or additional issue of stock of any class, whether now or hereafter
authorized, or of any bonds, debentures, notes, or any of our other securities, whether or not convertible into shares of our common
stock.
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All shares of preferred
stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock issued
upon the exercise of preferred stock warrants or subscription rights, if any.
Although our Board
has no intention at the present time of doing so, it could authorize the issuance of a series of preferred stock that could, depending
on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Anti-Takeover Effects of Certain Provisions of our Certificate
of Incorporation, Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and our Amended and Restated Bylaws, or the Bylaws, which are summarized in
the following paragraphs, may have the effect of discouraging potential acquisition proposals or tender offers or delaying or
preventing a change in control, including changes a stockholder might consider favorable. Such provisions may also prevent or
frustrate attempts by our stockholders to replace or remove our management. In particular, our Certificate of Incorporation
and Bylaws and Delaware law, as applicable, among other things:
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provide our Board with the ability to alter our Bylaws without stockholder approval;
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place limitations on the removal of directors; and
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provide that vacancies on our Board may
be filled by a majority of directors in office, although less than a quorum.
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These
provisions are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of our company to first negotiate with our Board.
These provisions may delay or prevent someone from acquiring or merging with us, which
may cause the market price of our common stock to decline.
Blank Check Preferred.
Our Board is authorized to create and issue from time to time, without stockholder approval, up to an aggregate of 100,000,000
shares of preferred stock in one or more series and to establish the number of shares of any series of preferred stock and to fix
the designations, powers, preferences and rights of the shares of each series and any qualifications, limitations or restrictions
of the shares of each series.
The authority to designate
preferred stock may be used to issue a series of preferred stock, or rights to acquire preferred stock, that could dilute the interest
of, or impair the voting power of, holders of the common stock or could also be used as a method of determining, delaying or preventing
a change of control.
Advance Notice Bylaws.
The Bylaws contain an advance notice procedure for stockholder proposals to be brought before any meeting of stockholders, including
proposed nominations of persons for election to our Board. Stockholders at any meeting will only be able to consider proposals
or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our Board or by a stockholder
who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given the
Company’s corporate secretary timely written notice, in proper form, of the stockholder’s intention to bring that business
before the meeting. Although our Bylaws do not give our Board the power to approve or disapprove of stockholder nominations of
candidates or proposals regarding other business to be conducted at a special or annual meeting, our Bylaws may have the effect
of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter
a potential acquiror from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Company.
Choice of
Forum. The Bylaws provide that, unless our Board consents to an alternative forum, the Court of Chancery in the State of
Delaware will be the sole and exclusive forum for: (i) any derivative action or proceeding brought by or on our behalf; (ii)
any direct action asserting a claim against us or any of our directors or officers pursuant to any of the provisions of the
DGCL, our Certificate of Incorporation or the Bylaws; (iii) any action asserting a claim of breach of fiduciary duties owed
by any of our directors, officers or other employees to our stockholders; or (iv) any action asserting a violation of
Delaware decisional law relating to our internal affairs. This provision does not apply to (a) actions in which the Court of
Chancery in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of Delaware
courts, or (b) actions in which a federal court has assumed exclusive jurisdiction to a proceeding. This choice of
forum provision is not intended to apply to any actions
brought under the Securities Act or the Exchange Act. Section 27 of the Exchange Act creates exclusive federal jurisdiction
over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder.
As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the
Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. However, the Bylaws do not relieve us of our duties to comply with federal securities laws and the rules and regulations
thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations. The
Bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock
will be deemed to have notice of and consented to this choice of forum provision.
This choice of forum
provision in the Bylaws may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for
disputes with us or our directors, officers or other employees, which may discourage such lawsuits against us and our directors,
officers and other employees. In addition, stockholders who do bring a claim in the Court of Chancery in the State of Delaware
could face additional litigation costs in pursuing any such claim, particularly if they do not reside in or near Delaware. Furthermore,
the enforceability of similar choice of forum provisions in other companies’ governing documents has been challenged in legal
proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Interested Stockholder
Transactions. We are subject to Section 203 of the DGCL, which prohibits “business combinations” between
a publicly-held Delaware corporation and an “interested stockholder,” which is generally defined as a stockholder who
is a beneficial owner of 15% or more of a Delaware corporation’s voting stock for a three-year period following the date
that such stockholder became an interested stockholder, unless: (i) the transaction is approved
by the board of directors before the date the interested stockholder attained that
status; (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or (iii)
on or after the date of the transaction, the transaction is approved by the board of directors and authorized at a meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the
interested stockholder. In general, the DGCL defines a business combination to include the following: (a) any merger or
consolidation involving the corporation and the interested stockholder; (b) any sale, transfer, pledge or other disposition of
10% or more of the assets of the corporation involving the interested stockholder; (c) subject to certain exceptions, any transaction
that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; (d)
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested stockholder; or (e) the receipt by the interested stockholder of
the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
Warrants
As of December 31,
2019, warrants to purchase 57,556,369 shares of common stock with a weighted-average exercise price of $3.13
per share were outstanding. All of our outstanding warrants are currently exercisable, except for certain series C warrants to purchase up to an aggregate of 6,305,334 shares of Common Stock issued on July 2,
2019, or the Series C Warrants, which are exercisable only to the extent and in proportion to a holder of the Series C Warrants
exercising series B warrants to purchase shares of Common Stock issued on July 2, 2019. Further, the other outstanding warrants
are currently exercisable, except to the extent that certain
of them may be subject to a blocker provision, which restricts the exercise of a warrant if, as a result of such exercise, the
warrant holder, together with its affiliates and any other person whose beneficial ownership of common stock would be aggregated
with the warrant holder’s for purposes of Section 13(d) of the Exchange Act,
would beneficially own in excess of 4.99%, 9.99%, 19.99% or 19.9% of our then issued and outstanding shares of common stock (including
the shares of common stock issuable upon such exercise), as such percentage ownership is determined in accordance with the terms
of such warrant. All of our outstanding warrants contain provisions for the adjustment of the exercise price in the event of stock
dividends, stock splits or similar transactions. In addition, certain of the warrants contain a “cashless exercise”
feature that allows the holders thereof to exercise the warrants without a cash payment to us under certain circumstances.
Transfer Agent and Registrar
The Transfer Agent
and Registrar for our common stock is Philadelphia Stock Transfer, Inc., 2320 Haverford Road, Suite 230, Ardmore, PA 19003.
DESCRIPTION
OF DEBT SECURITIES
We may issue debt securities
from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt.
While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we
will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement.
The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context
requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms
of a particular series of debt securities.
We will issue the debt
securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified
under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit
to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The following summary
of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all
of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses we authorize for use in connection with a specific offering of debt securities,
as well as the complete indenture that contains the terms of the debt securities.
General Matters
The indenture does
not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount
that we may authorize and in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain
any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations
or financial condition or transactions involving us.
We may issue the debt
securities issued under the indenture as “discount securities”, which means they may be sold at a discount below their
stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued
with “original issue discount”, or OID, for U.S. federal income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in the applicable prospectus supplement.
We will describe in
the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or
any combination thereof, and the terms of any subordination;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which the
debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such
debt securities that is convertible into another security or the method by which any such portion shall be determined;
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate
and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment
dates or the method for determining such dates;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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if applicable, the date or dates after which, or the period or periods during which, and the price
or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption
provisions and the terms of those redemption provisions;
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase,
the series of debt securities and the currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable
in connection with the marketing of debt securities of that series;
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whether the debt securities of the series shall be issued in whole or in part in the form of a
global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged
in whole or in part for other individual securities, and the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or
at the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement
for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change
in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such
securities to be due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with
and without the consent of the holders of the debt securities issued under the indenture;
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the currency of payment of the debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars;
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whether interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any, and principal amounts of the debt securities of the series to any holder that is not a “United States person”
for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under
applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in
the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for
our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number
of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject
to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant
that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume
all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the
indenture with respect to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the
same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension
of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default
in the payment of interest for this purpose;
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and
when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of
the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a
default in the payment of principal or premium, if any;
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if we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for
a period of 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such
is a notice of default thereunder, from the trustee or holders of at least 25% of the aggregate principal amount of the outstanding
debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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If an event of default
with respect to debt securities of any series occurs and is continuing, other than certain specified events of bankruptcy, insolvency
or reorganization, the trustee or the holders of at least 25% of the aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, of such series of debt securities immediately due and payable. If certain specified
events of bankruptcy, insolvency or reorganization occur with respect to us, the principal amount and accrued interest, if any,
of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the
trustee or any holder.
The holders of a majority
of the principal amount of the outstanding debt securities of an affected series may waive any default or event of default with
respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default
or event of default.
Subject to the terms
of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation
to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority of the
principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect
to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture;
and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt
securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee,
or to seek other remedies, only if:
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the holder has given written notice to the trustee of a continuing event of default with respect
to that series;
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the holders of at least 25% of the aggregate principal amount of the outstanding debt securities
of that series have made a written request;
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority
of the aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days
after the notice, request and offer.
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These limitations do
not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal of, or the premium,
if any, or interest on, the debt securities.
We will periodically
file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may change an indenture without
the consent of any holders with respect to specific matters, including, but not limited to, the following:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any
series;
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to comply with the provisions described above under “—Consolidation, Merger or Sale”;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the
occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event
of default or to surrender any right or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect;
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to provide for the issuance of, and to establish the form and terms and conditions of, the debt
securities of any series as provided above under “—General Matters”, to establish the form of any certifications
required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the
holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
or
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to comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act.
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In addition, under
the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent
of the holders of at least a majority of the aggregate principal amount of the outstanding debt securities of each series that
is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities,
we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
The indenture provides
that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified
obligations, including, but not limited to, the following obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise
our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal
of, and any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt
securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York, known as DTC, or another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and
as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the
holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus
supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same
series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms
of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders
of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that
the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but
we may require payment of any taxes or other governmental charges.
We will name in the
applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we
initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem
the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the date of mailing of a notice of redemption of any debt securities that
may be selected for redemption and ending at the close of business on the date of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or
in part, except for the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other
than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as
are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same
degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given to it by the indenture at the request of any holder of debt
securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise
indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment
date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We will pay principal
of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by
us, except that, unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check
that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus
supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt
securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate
for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities
of a particular series.
All money we pay to
a paying agent or the trustee for the payment of the principal of, or any premium or interest on, any debt securities that remains
unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and
the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the
debt securities, and any claim, controversy or dispute arising under or related to the indenture or the debt securities, will be
governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act
is applicable.
Oaktree Loan and Security Agreement
On November 7,
2018, we and certain of our domestic subsidiaries, or the Guarantors, entered into a Term Loan Agreement, or the Initial Loan
Agreement, with certain funds and accounts managed by Oaktree Capital Management, L.P., or collectively, the Lenders, and
Oaktree Fund Administration, LLC, as administrative and collateral agent, or the Agent, for an initial term loan of $100.0
million, or the Initial Loan, and a second tranche of $50.0 million, subject to the achievement of certain commercial and
financial milestones between August 7, 2019 and November 7, 2019, and the satisfaction of certain customary conditions, or
the Original Delayed Draw Term Loan. The Initial Loan was funded on November 7, 2018. On May 3, 2019, we, the Guarantors, the
Lenders and the Agent entered into an amendment to the Initial Loan Agreement, or the Amendment and, together with the
Initial Loan Agreement, and the second amendment to the Initial Loan Agreement entered into on December 6, 2019, the Loan
Agreement. Under the Amendment, the Lenders funded $20.0 million of the Original Delayed Draw Term Loan on May 3, 2019. The
Loan Agreement contains customary affirmative and restrictive covenants and representations and warranties, including
financial reporting obligations, financial milestones and limitations on dividends, indebtedness, liens,
negative pledges, certain restricted payments, subsidiary distributions, investments, fundamental transactions, dispositions
of assets and transactions with affiliates. In addition, we have committed to meet minimum capital-raising and debt repayment
requirements in the first quarter of 2020, and to pursue debt restructuring arrangements and the sale of one or more non-core
assets in the first half of 2020. The Loan Agreement also contains other customary provisions, such as expense reimbursement
and confidentiality obligations, as well as indemnification rights for the benefit of the Lenders.
Scilex Notes
On September 7,
2018, Scilex Pharmaceuticals Inc., or Scilex Pharma, issued and sold senior secured notes due 2026 in an aggregate principal
amount of $224,000,000, or the Scilex Notes, for an aggregate purchase price of $140,000,000, or the Scilex Offering. In
connection with the Scilex Offering, we also entered into an indenture, as amended, or the Scilex Indenture, governing the
Scilex Notes with U.S. Bank National Association, a national banking association, as trustee, or the Trustee, and collateral
agent, and Scilex Pharma. Pursuant to the Scilex Indenture, we agreed to irrevocably and unconditionally guarantee, on a
senior unsecured basis, the punctual performance and payment when due of all obligations of Scilex Pharma under the Scilex
Indenture.
The aggregate principal amount due under the Scilex Notes shall be increased by $28,000,000 on February 15, 2022 if actual
cumulative net sales of ZTlido® (lidocaine topical system) 1.8% from the issue date of the Scilex Notes through December
31, 2021 do not equal or exceed 95% of a predetermined target sales threshold for such period. If actual cumulative net sales
of ZTlido® (lidocaine topical system) 1.8% for the period from October 1, 2022 through September 30, 2023 do not equal
or exceed 80% of a predetermined target sales threshold for such period, the aggregate principal amount shall also be increased
on November 15, 2023 by an amount equal to an amount to be determined by reference to the amount of such deficiency. The final
maturity date of the Scilex Notes will be August 15, 2026. The Scilex Notes may be redeemed in whole at any time upon 30 days’
written notice at Scilex Pharma's option prior to August 15, 2026 at a redemption price equal to 100% of the then-outstanding
principal amount of the Scilex Notes. In addition, upon a change of control of Scilex Pharma (as defined in the Scilex Indenture),
each holder of a Scilex Note shall have the right to require Scilex Pharma to repurchase all or any part of such holder’s
Scilex Note at a repurchase price in cash equal to 101% of the then-outstanding principal amount thereof.
The Scilex Indenture
governing the Scilex Notes contains customary events of default with respect to the Scilex Notes (including a failure to make any
payment of principal on the Scilex Notes when due and payable), and, upon certain events of default occurring and continuing, the
Trustee by notice to Scilex Pharma, or the holders of at least 25% in principal amount of the outstanding Scilex Notes by notice
to Scilex Pharma and the Trustee, may (subject to the provisions of the Scilex Indenture) declare 100% of the then-outstanding
principal amount of the Scilex Notes to be due and payable. Upon such a declaration of acceleration, such principal will be due
and payable immediately. In the case of certain events, including bankruptcy, insolvency or reorganization involving us or Scilex
Pharma, the Scilex Notes will automatically become due and payable.
Pursuant to the Scilex
Indenture, we and Scilex Pharma must also comply with certain covenants with respect to the commercialization of ZTlido® (lidocaine
topical system) 1.8%, as well as customary additional affirmative covenants, such as furnishing financial statements to the holders
of the Scilex Notes, minimum cash requirements and net sales reports, and negative covenants, including limitations on the following:
the incurrence of debt, the payment of dividends, the repurchase of shares and, under certain conditions, making certain other
restricted payments, the prepayment, redemption or repurchase of subordinated debt, a merger, amalgamation or consolidation involving
Scilex Pharma, engaging in certain transactions with affiliates, and the making of investments other than those permitted by the
Scilex Indenture.
For purposes of the Scilex Indenture and the Loan Agreement, an event of default includes, among other things, (i) a failure
to pay any amounts when due under such agreements, (ii) a breach or other failure to comply with the covenants (including
financial, notice and reporting covenants) under such agreements, (iii) a failure to make any payment on, or other event triggering
an acceleration under, other of our material indebtedness, which would include, with respect to the Loan Agreement, a failure
or acceleration under the Scilex Indenture, and with respect to the Scilex Indenture, a failure or acceleration under the
Loan Agreement, and (iv) the occurrence of certain insolvency or bankruptcy events (both voluntary and involuntary) involving
us or certain of our subsidiaries.
DESCRIPTION
OF WARRANTS
The following description,
together with the additional information we may include in the applicable prospectus supplements and free writing prospectuses
we have authorized for use in connection with a specific offering, summarizes the material terms and provisions of the warrants
that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securities
and may be issued in one or more series.
Warrants may be issued
independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be
attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that
we may offer under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail
in the applicable prospectus supplement and any applicable free writing prospectus we authorize for use in connection with the
specific offering. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with
the SEC, the form of warrant agreement, if any, including a form of warrant certificate, that describes the terms of the particular
series of warrants we are offering. The following summaries of material provisions of the warrants and the warrant agreements are
subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate
applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing
prospectuses we have authorized for use in connection with a specific offering, and the complete warrant agreements and warrant
certificates that contain the terms of the warrants.
General Matters
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants being offered, including:
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the title of such securities;
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the offering price or prices and aggregate number of warrants offered;
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the currency or currencies for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and
the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately
transferable;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one
time;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable
upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased
upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common
stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency
in which, these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant
agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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the terms of any rights to force the exercise of the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable
upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of any material or special United States federal income tax consequences of holding
or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any
of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable
indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends,
if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe
in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants
may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised warrants will become void.
Unless we otherwise
specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent
in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the
warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required
to deliver to the warrant agent in connection with the exercise of the warrant.
Upon receipt of the
required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue
a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders
of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise
in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under
or related to the warrants or warrant agreements, will be governed by and construed in accordance with the laws of the State of
New York.
Enforceability of Rights By Holders of Warrants
Each warrant agent
will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants.
A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Warrant Agreement Will Not Be Qualified Under Trust Indenture
Act
No warrant agreement
will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture Act.
Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their warrants.
Calculation Agent
Calculations relating
to warrants may be made by a calculation agent, an institution that we appoint as our agent for this purpose. The prospectus supplement
for a particular warrant will name the institution that we have appointed to act as the calculation agent for that warrant as of
the original issue date for that warrant. We may appoint a different institution to serve as calculation agent from time to time
after the original issue date without the consent or notification of the holders.
The calculation agent’s
determination of any amount of money payable or securities deliverable with respect to a warrant will be final and binding in the
absence of manifest error.
Outstanding Warrants
As of December 31,
2019, warrants to purchase 57,556,369 shares of common stock with a weighted-average exercise price of $3.13 per share were
outstanding. All of our outstanding warrants are currently exercisable, except for certain series C warrants to purchase up to an aggregate of 6,305,334 shares of Common Stock issued on July 2,
2019, or the Series C Warrants, which are exercisable only to the extent and in proportion to a holder of the Series C Warrants
exercising series B warrants to purchase shares of Common Stock issued on July 2, 2019. Further, the other outstanding warrants
are currently exercisable, except to the extent that certain of them may be subject
to a blocker provision, which restricts the exercise of a warrant if, as a result of such exercise, the warrant holder, together
with its affiliates and any other person whose beneficial ownership of common stock would be aggregated with the warrant holder’s
for purposes of Section 13(d) of the Exchange Act, would beneficially own in excess of 4.99%, 9.99%, 19.99% or 19.9% of our then
issued and outstanding shares of common stock (including the shares of common stock issuable upon such exercise), as such percentage
ownership is determined in accordance with the terms of such warrant. All of our outstanding warrants contain provisions for the
adjustment of the exercise price in the event of stock dividends, stock splits or similar transactions. In addition, certain of
the warrants contain a “cashless exercise” feature that allows the holders thereof to exercise the warrants without
a cash payment to us under certain circumstances.
DESCRIPTION
OF UNITS
We may issue units
consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence
each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with
a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The following description,
together with the additional information included in the applicable prospectus supplement, summarizes the general features of the
units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus we authorize
for use in connection with a specific offering of units, as well as the complete unit agreements that contain the terms of the
units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the
form of each unit agreement relating to units offered under this prospectus.
If we offer any units,
certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation,
the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately
transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
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LEGAL OWNERSHIP
OF SECURITIES
We can issue securities
in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer
to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary
maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities.
We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their
own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders,
and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities
in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by
one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other
financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are
referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in
whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name
of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the holder
of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to
do so under the terms of the securities.
As a result, investors
in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through
a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest
through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders,
of the securities.
Street Name Holders
We may terminate a
global security in certain situations, as described under “—Special Situations When a Global Security Will Be Terminated”,
or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their
own names or in “street name”. Securities held by an investor in street name would be registered in the name of a bank,
broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those
securities through an account he or she maintains at that institution.
For securities held
in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial
institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary
will make all payments on those securities to them. These institutions pass along the payments they receive to their customers
who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as
well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of
the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by
any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice
because we are issuing the securities only in global form.
For example, once we
make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal
holder is required, under agreements with its participants or customers or by law, to pass the payment or notice along to the indirect
holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of
the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes.
In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether
and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities
through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one
or more global securities or in street name, you should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders’ consent, if ever required;
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whether and how you can instruct it to send you securities registered in your own name so you can
be a holder, if that is permitted in the future;
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how it would exercise rights under the securities if there were a default or other event triggering
the need for holders to act to protect their interests; and
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if the securities are in book-entry form, how the depositary’s rules and procedures will
affect these matters.
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Global Securities
A global security is
a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented
by the same global securities will have the same terms.
Each security issued
in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary.
Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as
DTC, will be the depositary for all securities issued in book-entry form.
A global security may
not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless
special termination situations arise. We describe those situations below under “—Special Situations When a Global Security
Will Be Terminated”. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner
and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution
that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented
by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global
security.
If the prospectus supplement
for a particular security indicates that the security will be issued as a global security, then the security will be represented
by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities
through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing
system.
Special Considerations for Global Securities
As an indirect holder,
an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial
institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder
as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued
only as global securities, an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his or her name, and cannot obtain
non-global certificates for his or her interest in the securities, except in the special situations described below;
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an investor will be an indirect holder and must look to his or her own bank or broker for payments
on the securities and protection of his or her legal rights relating to the securities, as described above;
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an investor may not be able to sell interests in the securities to some insurance companies and
to other institutions that are required by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in the global security in circumstances
where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for
the pledge to be effective;
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the depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in the global security;
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we and any applicable trustee have no responsibility for any aspect of the depositary’s actions
or for its records of ownership interests in the global security, nor will we or any applicable trustee supervise the depositary
in any way;
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the depositary may, and we understand that DTC will, require that those who purchase and sell interests
in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to
do the same; and
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financial institutions that participate in the depositary’s book-entry system, and through
which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other
matters relating to the securities.
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There may be more than
one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions
of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations
described below, a global security will terminate and interests in it will be exchanged for physical certificates representing
those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor.
Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own
names, so that they will be direct holders. The rights of holders and street name investors are described above.
A global security will
terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as
depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate that global security; or
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if an event of default has occurred with regard to securities represented by that global security
and has not been cured or waived.
|
The applicable prospectus
supplement may also list additional situations for terminating a global security that would apply only to the particular series
of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable
trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF
DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, direct sales to the public, “at the market” offerings,
negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters
or dealers, through agents, or directly to one or more purchasers. We may distribute securities from time to time in one or more
transactions:
|
|
·
|
at a fixed price or prices, which may be changed;
|
|
|
·
|
at market prices prevailing at the time of sale;
|
|
|
·
|
at prices related to such prevailing market prices; or
|
A prospectus supplement
or supplements (and any related free writing prospectus that we may have authorized for use in connection with a specific offering)
will describe the terms of the offering of the securities, including, to the extent applicable:
|
|
·
|
the name or names of the underwriters, if any;
|
|
|
·
|
the purchase price of the securities or other consideration therefor, and the proceeds, if any,
we will receive from the sale;
|
|
|
·
|
any over-allotment options under which underwriters may purchase additional securities from us;
|
|
|
·
|
any agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation;
|
|
|
·
|
any public offering price;
|
|
|
·
|
any discounts or concessions allowed or re-allowed or paid to dealers; and
|
|
|
·
|
any securities exchange or market on which the securities may be listed.
|
Only underwriters named
in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If underwriters are
used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one
or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We
may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered
by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts
or concessions allowed or re-allowed or paid to dealers may change from time to time. We may use underwriters with whom we have
a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities
and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize
agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
We may provide agents
and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may
offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make
a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice.
We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may
engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Over-allotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing
bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the
securities, either through exercise of the over-allotment option or 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 stabilizing or covering transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
Any underwriters that
are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions in the common stock on
the Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing
of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable
volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its
bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive
market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the
open market and, if commenced, may be discontinued at any time.
In compliance with
guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any
FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this
prospectus and the applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated
in the applicable prospectus supplement, the validity of the securities offered by this prospectus, and any supplement thereto,
will be passed upon for us by Paul Hastings LLP, Palo Alto, California.
EXPERTS
The financial
statements and financial statement schedule incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K, and the effectiveness of Sorrento Therapeutics, Inc.'s internal control over financial reporting
have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports,
which are incorporated herein by reference (which reports (1) express an unqualified opinion on the consolidated financial
statements and financial statement schedule and include an explanatory paragraph referring to the Company's ability to
continue as a going concern) and (2) express an unqualified opinion on the effectiveness of the Company's internal control
over financial reporting). Such financial statements and financial statement schedule have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We are a reporting
company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We have filed with
the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities being offered under this prospectus.
This prospectus 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 securities being offered under this prospectus, 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, including Sorrento Therapeutics, Inc. The SEC’s Internet site can be found at http://www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to
“incorporate by reference” information into this prospectus, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. The documents incorporated by reference into this prospectus
contain important information that you should read about us.
The following documents
are incorporated by reference into this prospectus:
We also incorporate
by reference any future filings (other than 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 unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective
amendment that indicates the termination of the offering of the securities made by this prospectus and such future filings and
will become a part of this prospectus from the respective dates that such documents are filed with the SEC. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof or of the related prospectus supplement to the extent that a statement contained herein or in any other subsequently
filed document which is also incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
Documents incorporated
by reference are available from us, without charge. You may obtain documents incorporated by reference in this prospectus by requesting
them in writing or by telephone at the following address:
Sorrento Therapeutics, Inc.
4955 Directors Place
San Diego, CA 92121
Attn: Corporate Secretary
Phone: (858) 203-4100
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following
table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by Sorrento Therapeutics,
Inc., or the Registrant. All of such fees and expenses, except for the SEC registration fee and the FINRA filing fee, are
estimated:
|
SEC registration fee
|
|
$
|
129,800
|
|
|
FINRA filing fee
|
|
|
(1
|
)
|
|
Legal fees and expenses
|
|
|
(1
|
)
|
|
Printing fees and expenses
|
|
|
(1
|
)
|
|
Accounting fees and expenses
|
|
|
(1
|
)
|
|
Transfer agent fees and expenses
|
|
|
(1
|
)
|
|
Miscellaneous fees and expenses
|
|
|
(1
|
)
|
|
Total
|
|
$
|
(1
|
)
|
(1) These fees are calculated based on the securities offered
and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Officers and Directors.
The Registrant is a
Delaware corporation. Reference is made to Section 102(b)(7) of the General Corporation Law of the State of Delaware, or the DGCL,
which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director’s fiduciary duty, except (1) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchase or redemptions), or (4) for any transaction from which a director derived an improper
personal benefit.
Reference also is made
to Section 145 of the DGCL, which provides that a corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact
that such person was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation
as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorney’s
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation’s best interest and, for criminal proceedings, had no reasonable cause
to believe that his conduct was unlawful. A Delaware corporation may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer or director
actually and reasonably incurred.
The Registrant’s
Restated Certificate of Incorporation, as amended, or the Certificate of Incorporation, eliminates the personal liability of directors
to the fullest extent permitted by the DGCL and, together with the Registrant’s Amended and Restated Bylaws, provides that
the Registrant shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it may be amended or supplemented,
any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that such person, or a person for whom such person is the
legal representative, is or was a director or officer of the Registrant or, while a director or officer of the Registrant, is or
was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person.
The Registrant has
an insurance policy that insures its directors and officers, within the limits and subject to the limitations of the policy, against
certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed
as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been directors or officers.
The Registrant has
indemnification agreements with each of its directors and executive officers that may be broader than the specific indemnification
provisions contained in the DGCL. These indemnification agreements require the Registrant, among other things, to indemnify a director
or officer, to the fullest extent permitted by applicable law, for certain expenses, including attorneys’ fees, judgments,
penalties, fines and settlement amounts actually and reasonably incurred by them in any action or proceeding arising out of their
services as one of a director or officer of the Registrant, or any of the Registrant’s subsidiaries or any other company
or enterprise to which the person provides services at the Registrant’s request, including liability arising out of negligence
or active or passive misconduct by the officer or director. The Registrant believes that these agreements are
necessary to attract and retain qualified individuals to serve as directors and executive officers.
Item 16. Exhibits.
(a)
Exhibits.
|
Exhibit
Number
|
|
Description
|
|
1.1†
|
|
Form of Underwriting Agreement.
|
|
|
|
|
|
2.1+
|
|
Agreement and Plan of Merger between Sorrento Therapeutics, Inc. and IgDraSol, Inc. dated September 9, 2013 (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on September 11, 2013).
|
|
|
|
|
|
2.2+
|
|
Stock Purchase Agreement, dated November 8, 2016, by and among Sorrento Therapeutics, Inc., Scilex Pharmaceuticals Inc., the stockholders of Scilex Pharmaceuticals Inc. party thereto and SPI Shareholders Representative, LLC, as representative of the stockholders of Scilex Pharmaceuticals Inc. party thereto (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 8, 2016).
|
|
|
|
|
|
2.3+
|
|
Share Purchase Agreement, dated April 27, 2017, by and among Sorrento Therapeutics, Inc., TNK Therapeutics, Inc., Virttu Biologics Limited, the shareholders of Virttu Biologics Limited party thereto and Dayspring Ventures Limited, as representative of the shareholders of Virttu Biologics Limited party thereto (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 28, 2017).
|
|
|
|
|
|
2.4
|
|
Amendment No. 1 to Share Purchase Agreement, effective April 27, 2018, by and among Sorrento Therapeutics, Inc., TNK Therapeutics, Inc. and Dayspring Ventures Limited, as representative of the shareholders of Virttu Biologics Limited (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 27, 2018).
|
|
|
|
|
|
2.5+
|
|
Agreement and Plan of Merger, dated as of March 18, 2019, by and among Sorrento Therapeutics, Inc., Semnur Pharmaceuticals, Inc., Scilex Holding Company, Sigma Merger Sub, Inc. and Fortis Advisors LLC, solely as the Equityholders’ Representative (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on March 22, 2019).
|
|
2.6
|
|
Amendment No. 1 to Agreement and Plan of Merger, dated as of August 7, 2019, by and between Scilex Holding Company and Fortis Advisors LLC, solely as the Equityholders’ Representative (incorporated by reference to Exhibit 2.2 to the Registrant’s Quarterly Report on Form 10Q filed with the SEC on November 12, 2019).
|
|
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to Form S-3 filed with the SEC on June 24, 2013).
|
|
|
|
|
|
3.2
|
|
Certificate of Amendment of the Restated Certificate of Incorporation of Sorrento Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on August 1, 2013).
|
|
|
|
|
|
3.3
|
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 15, 2019).
|
|
|
|
|
|
4.1
|
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 23, 2009).
|
|
|
|
|
|
4.2
|
|
Voting Agreement, dated as of April 29, 2016, by and between Sorrento Therapeutics, Inc. and Yuhan Corporation (incorporated by reference to Exhibit 4.12 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on June 29, 2016).
|
|
|
|
|
|
4.3
|
|
Registration Rights Agreement, dated November 8, 2016, by and among Sorrento Therapeutics, Inc. and the persons party thereto (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 8, 2016).
|
|
|
|
|
|
4.4
|
|
Warrant Agreement, dated November 23, 2016, issued by Sorrento Therapeutics, Inc. to Hercules Capital, Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 29, 2016).
|
|
|
|
|
|
4.5
|
|
Registration Rights Agreement, dated April 27, 2017, by and among Sorrento Therapeutics, Inc. and the persons party thereto (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 28, 2017).
|
|
|
|
|
|
4.6
|
|
Form of Common Stock Purchase Warrant issued to investors pursuant to the Securities Purchase Agreement, dated as of December 11, 2017, by and among Sorrento Therapeutics, Inc. and the purchasers identified on Schedule A thereto (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 21, 2017).
|
|
|
|
|
|
4.7
|
|
Registration Rights Agreement, dated December 21, 2017, by and among Sorrento Therapeutics, Inc. and the purchasers identified on Schedule A thereto (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 21, 2017).
|
|
|
|
|
|
4.8
|
|
Form of Common Stock Purchase Warrant issued to investors pursuant to the Securities Purchase Agreement, dated as of June 13, 2018, by and among Sorrento Therapeutics, Inc. and the purchasers identified on Schedule A thereto (incorporated by reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 9, 2018).
|
|
|
|
|
|
4.9
|
|
Registration Rights Agreement, dated June 13, 2018, by and among Sorrento Therapeutics, Inc. and the purchasers identified on Schedule A thereto (incorporated by reference to Exhibit 4.3 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 9, 2018).
|
|
|
|
|
|
4.10
|
|
Form of Warrant, dated November 7, 2018, issued by Sorrento Therapeutics, Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2018).
|
|
|
|
|
|
4.11
|
|
Registration Rights Agreement, dated November 7, 2018, by and among Sorrento Therapeutics, Inc. and the parties identified on Schedule A thereto (incorporated by reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2018).
|
|
4.12
|
|
Agreement and Consent, dated November 7, 2018, by and among Sorrento Therapeutics, Inc. and the Warrant Holders party thereto (incorporated by reference to Exhibit 10.6 of the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2018).
|
|
|
|
|
|
4.13
|
|
Exchange and Registration Rights Agreement, dated as of March 18, 2019, by and among Sorrento Therapeutics, Inc. and the stockholders and stock option holders of Semnur Pharmaceuticals, Inc. set forth on Schedule A thereto, (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on March 22, 2019).
|
|
|
|
|
|
4.14
|
|
Form of Warrant, dated May 3, 2019, issued by Sorrento Therapeutics, Inc. incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on May 3, 2019).
|
|
|
|
|
|
4.15
|
|
Amendment No. 1 to the Registration Rights Agreement, dated as of May 3, 2019, by and among Sorrento Therapeutics, Inc. and the persons party thereto (incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed with the SEC on May 3, 2019).
|
|
|
|
|
|
4.16
|
|
Form of Series A Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on June 28, 2019).
|
|
|
|
|
|
4.17
|
|
Form of Series B Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on June 28, 2019).
|
|
|
|
|
|
4.18
|
|
Form of Series C Warrant (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K filed with the SEC on June 28, 2019).
|
|
|
|
|
|
4.19
|
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed with the SEC on October 8, 2019).
|
|
|
|
|
|
4.20
|
|
Note Conversion Agreement, dated as of November 8, 2019, by and among Sorrento Therapeutics, Inc. and the holders of convertible notes issued by Sorrento Therapeutics, Inc. as is set forth on Exhibit A thereto (incorporated by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10Q filed with the SEC on November 12, 2019).
|
|
|
|
|
|
4.21
|
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 9, 2019).
|
|
|
|
|
|
4.22
|
|
Amendment No. 2 to the Registration Rights Agreement, dated as of December 6, 2019, by and among Sorrento Therapeutics, Inc. and the persons party thereto (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 9, 2019).
|
|
|
|
|
|
4.23
|
|
Registration Rights Agreement, dated as of February 10, 2020, by and between Sorrento Therapeutics, Inc. and Aspire Capital
Fund, LLC (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed with the SEC on February
11, 2020).
|
|
|
|
|
|
4.24*
|
|
Form of Indenture, between the Registrant and one or more trustees to be named.
|
|
|
|
|
|
4.25†
|
|
Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred.
|
|
|
|
|
|
4.26†
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate.
|
|
|
|
|
|
4.27†
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate.
|
|
|
|
|
|
4.28†
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate.
|
|
|
|
|
|
4.29†
|
|
Form of Debt Securities.
|
|
|
|
|
|
4.30†
|
|
Form of Unit Agreement.
|
|
|
|
|
|
5.1*
|
|
Opinion of Paul Hastings LLP.
|
|
|
|
|
|
23.1*
|
|
Consent of Deloitte & Touche LLP
|
|
|
|
|
|
23.2*
|
|
Consent of Paul Hastings LLP is contained in Exhibit 5.1 to this Registration Statement.
|
|
|
|
|
|
24.1*
|
|
Power of Attorney is contained on the signature page.
|
|
|
|
|
|
25.1#
|
|
Statement of Eligibility of Trustee under the Indenture.
|
|
|
†
|
To the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act
of 1934, as amended, and incorporated by reference herein.
|
|
+
|
Non-material schedules and exhibits have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplemental copies of any of the omitted
schedules and exhibits upon request by the SEC.
|
|
|
#
|
To be filed separately under the electronic form type 305B2, if applicable
|
Item 17. Undertakings.
The undersigned Registrant
hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any
prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in
the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however,
that:
Paragraphs (1)(i),
(1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose
of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes
of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That, for purposes
of determining any liability under the Securities Act of 1933:
(i) the information
omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be a part of this registration statement as of the time it was declared effective; and
(ii) each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on March 12, 2020.
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SORRENTO THERAPEUTICS, INC.
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By:
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/s/ Henry Ji, Ph.D.
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Henry Ji, Ph.D.
Chairman of the Board of Directors,
President and Chief Executive Officer
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POWER OF ATTORNEY
Know
All Persons By These Presents, that each person whose signature appears below constitutes and appoints Henry Ji,
Ph.D. and Jiong Shao, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his
or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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Date
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/s/ Henry Ji, Ph.D.
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Chairman of the Board of Directors, President and Chief Executive Officer
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March 12, 2020
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Henry Ji, Ph.D.
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(Principal Executive Officer)
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/s/ Jiong Shao
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Executive Vice President and Chief Financial Officer
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March 12, 2020
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Jiong Shao
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(Principal Financial and Accounting Officer)
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/s/ Dorman Followwill
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Director
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March 12, 2020
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Dorman Followwill
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/s/ Kim D. Janda, Ph.D.
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Director
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March 12, 2020
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Kim D. Janda, Ph.D.
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/s/ Edgar Lee
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Director
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March 12, 2020
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Edgar Lee
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/s/ David Lemus
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Director
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March 12, 2020
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David Lemus
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/s/ Jaisim Shah
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Director
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March 12, 2020
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Jaisim Shah
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/s/ Dr. Robin L. Smith
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Director
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March 12, 2020
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Dr. Robin L. Smith
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/s/ Yue Alexander Wu, Ph.D.
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Director
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March 12, 2020
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Yue Alexander Wu, Ph.D.
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