(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Approximate date of commencement 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. ☒
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.
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. ☐
Our shares of common stock have experienced extreme
volatility in market prices and trading volume since listing. From February 18, 2022 (the date our shares were initially listed
on Nasdaq) to the date hereof, the market price of our common stock has fluctuated from an intra-day low on Nasdaq of $0.91 on November 9,
2022 to an intra-day high of $90.90 per share on February 22, 2022. By comparison, our initial public offering, which closed on
February 23, 2022, was conducted at $9.00 per share. During this time, we have made various announcements regarding certain research
developments and partnerships for our vaccine candidates. Notwithstanding the foregoing, since our initial public offering on February 18,
2022, there were no material recent publicly disclosed changes in the financial condition or results of operations of the Company, such
as our earnings or revenue, that are consistent with or related to the changes in our stock price. The trading price of our common stock
has been, and may continue to be, subject to wide price fluctuations in response to various factors, many of which are beyond our control,
including those described under the heading “Risk Factors” beginning on page 5 of this prospectus.
Investing in our common stock involves a high
degree of risk. Please read “Risk Factors” beginning on page 5 of this prospectus.
CAUTIONARY NOTE REGARDING
FORWARD LOOKING STATEMENTS
This prospectus and any accompanying
prospectus supplement and the documents incorporated by reference herein may contain forward looking statements that involve risks and
uncertainties. All statements other than statements of historical fact contained in this prospectus and any accompanying prospectus
supplement and the documents incorporated by reference herein, including statements regarding future events, our future financial performance,
business strategy, and plans and objectives of management for future operations, are forward-looking statements. In some cases, you can
identify forward-looking statements by the words “may,” “might,” “will,” “could,” “would,”
“should,” “expect,” “intend,” “plan,” “objective,” “anticipate,”
“believe,” “estimate,” “predict,” “project,” “potential,” “continue”
and “ongoing,” or the negative of these terms, or other comparable terminology intended to identify statements about the
future, although not all forward-looking statements contain these words. These statements relate to future events or our future financial
performance or condition and involve known and unknown risks, uncertainties and other factors that could cause our actual results, levels
of activity, performance or achievement to differ materially from those expressed or implied by these forward-looking statements. These
forward-looking statements include, but are not limited to, statements about:
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our projected financial position and estimated cash
burn rate; |
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our estimates regarding expenses, future revenues
and capital requirements; |
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our ability to continue as a going concern; |
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our need to raise substantial additional capital to
fund our operation; |
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the success, cost and timing of our clinical trials; |
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our dependence on third parties in the conduct of
our clinical trials; |
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our ability to obtain the necessary regulatory approvals
to market and commercialize our product candidates; |
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the ultimate impact of the ongoing COVID-19 pandemic,
or any other health epidemic, on our business, our clinical trials, our research programs, healthcare systems or the global economy
as a whole; |
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the potential that results of pre-clinical and clinical
trials indicate our current product candidates or any future product candidates we may seek to develop are unsafe or ineffective; |
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the results of market research conducted by us or
others; |
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our ability to obtain and maintain intellectual property
protection for our current product candidates; |
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our ability to protect our intellectual property rights
and the potential for us to incur substantial costs from lawsuits to enforce or protect our intellectual property rights; |
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the possibility that a third party may claim we or
our third-party licensors have infringed, misappropriated or otherwise violated their intellectual property rights and that we may
incur substantial costs and be required to devote substantial time defending against claims against us; |
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our reliance on third parties; |
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the success of competing therapies and products that
are or become available; |
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our ability to expand our organization to accommodate
potential growth and our ability to retain and attract key personnel; |
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the potential for us to incur substantial costs resulting
from product liability lawsuits against us and the potential for these product liability lawsuits to cause us to limit our commercialization
of our product candidates; |
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market acceptance of our product candidates, the size
and growth of the potential markets for our current product candidates and any future product candidates we may seek to develop,
and our ability to serve those markets; and |
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the successful development of our commercialization
capabilities, including sales and marketing capabilities. |
These forward-looking statements
are subject to a number of risks, uncertainties and assumptions, including those described in “Risk Factors.” Moreover, we
operate in a highly regulated, very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible
for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may
make. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus
may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.
We have based these forward-looking
statements largely on our current expectations and projections about future events and financial trends that we believe may affect our
financial condition, results of operations, business strategy, short term and long term business operations, and financial needs. These
forward-looking statements are subject to certain risks and uncertainties that could cause our actual results to differ materially from
those reflected in the forward looking statements. Factors that could cause or contribute to such differences include, but are not limited
to, those discussed in this prospectus and any accompanying prospectus or prospectus supplement, and in particular, the risks discussed
below and under the heading “Risk Factors” and those discussed in other documents we file with the SEC, which are incorporated
by reference herein. The following discussion should be read in conjunction with the financial statements for the fiscal years ended
December 31, 2022 and 2021 and notes incorporated by reference herein. We undertake no obligation to revise or publicly release the results
of any revision to these forward-looking statements, except as required by law. In light of these significant risks, uncertainties and
assumptions, the forward-looking events and circumstances discussed in this prospectus and any accompanying prospectus or prospectus
supplement may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking
statement.
You should not place undue
reliance on any forward-looking statement, each of which applies only as of the date of this prospectus, or any accompanying prospectus
or prospectus supplement. Except as required by law, we undertake no obligation to update or revise publicly any of the forward-looking
statements after the date of this prospectus to conform our statements to actual results or changed expectations. Any forward-looking
statement you read in this prospectus, any accompanying prospectus, or any prospectus supplement or any document incorporated by reference
reflects our current views with respect to future events and is subject to these and other risks, uncertainties and assumptions relating
to our operations, operating results, growth strategy and liquidity. You should not place undue reliance on these forward-looking statements
because such statements speak only as to the date when made. We assume no obligation to publicly update or revise these forward-looking
statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking
statements, even if new information becomes available in the future, except as otherwise required by applicable law. You are advised,
however, to consult any further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC.
You should understand that it is not possible to predict or identify all risk factors. Consequently, you should not consider any such
list to be a complete set of all potential risks or uncertainties.
PROSPECTUS SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information
that you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents
incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information With
Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and the financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before making
an investment decision.
As
used herein, and any amendment or supplement hereto, unless otherwise indicated, “we,” “us,” “our,”
the “Company,” “Blue Water Vaccines,” “BWV” or similar terminology means Blue Water Vaccines Inc.
Our Company
We
are a biotechnology company focused on the research and development of transformational vaccines to prevent infectious diseases worldwide.
We hold exclusive, global rights to novel technology licensed from renowned research institutions around the world, including St. Jude
Children’s Research Hospital, the University of Oxford, Cincinnati Children’s Hospital Medical Center, and the University
of Texas Health at San Antonio. We believe that our pipeline and vaccine platform are synergistic for developing next generation preventive
vaccines to improve both health outcomes and quality of life globally.
We
seek to develop vaccines that provide long-lasting immunity to harmful viral and bacterial pathogens that cause infections in patient
populations with high unmet needs. Our most advanced vaccine candidate is a live-attenuated, intranasally delivered, serotype independent
Streptococcus pneumoniae vaccine to prevent middle ear infections, also known as acute otitis media (AOM), and pneumococcal pneumonia.
AOM is a significant burden globally, particularly in young children, and pneumococcal pneumonia primarily impacts the elderly population.
Additionally, we believe that this attenuated bacterium can serve as a platform to protect against other infectious agents that cause
acute otitis media, such as non-typeable Haemophilus influenzae and Moraxella catarrhalis, by anchoring antigens from these
pathogens on the surface of BWV-201, our attenuated Streptococcus pneumoniae bacterial vaccine. We hold a global, exclusive license
to this technology, which was generated from the laboratory of Jason Rosch, Ph.D., of St. Jude Children’s Research Hospital. Our
influenza programs are based on technology developed by Sunetra Gupta, Ph.D. at the University of Oxford, for which we hold a global,
exclusive license for use of epitopes of limited variability, ELVs, to develop novel influenza vaccine candidates. Identified through
a proprietary computational research and discovery process, we believe a vaccine formulated with these epitopes from different influenza
strains will produce a viable universal influenza vaccine candidate. We are exploring the development of these influenza ELVs utilizing
our norovirus shell and protrusion (S&P) nanoparticle vaccine platform, licensed from Cincinnati Children’s Hospital Medical
Center, or CHMC. We are also utilizing this platform to develop a vaccine for the prevention of gastroenteritis caused by norovirus or
rotavirus, as well as novel vaccines for malaria and monkeypox. The final candidate in our vaccine pipeline is a live-attenuated, orally
delivered vaccine to prevent Chlamydia, for which we have a global, exclusive license to this technology originated from the University
of Texas Health at San Antonio. We leverage the expertise of each of our collaborators to pursue the discovery and development of vaccines
for these diseases, each of which represent high unmet needs globally.
In
addition, we have expertise in identifying business development opportunities for our platform vaccines technologies and portfolio. This
allows for both internal pipeline expansion and the ability to generate non-dilutive revenue from potential licensing partners to utilize
our discovery engine vaccine platform. There is potential for adjunctive or next generation therapeutic exploration to enhance current
standard of care options.
Vaccination
has been used as an effective method of protecting individuals against harmful diseases by utilizing the body’s natural defense
system to develop resistance or immunity to infections (World Health Organization, https://www.who.int/news-room/q-a-detail/herd-immunity-lockdowns-and-covid-19).
The body’s immune system naturally creates antibodies and cell -mediated immunity to defend against foreign pathogens. Vaccines
introduce or present these foreign pathogens, prompting the body’s immune system produce a response protective against the pathogen
without exposing the body to the relevant lethal or harmful infection (World Health Organization, https://www.who.int/news-room/q-a-detail/herd-immunity-lockdowns-and-covid-19).
While vaccines are generally able to provide resistance against disease, many infectious diseases can evolve or mutate leading to shortcomings
of traditional vaccines, such as yearly reformulations. We believe our vaccine candidates can provide an alternative to the current standards
of care by harnessing durable and long-lived immune response to specific or multiple antigens.
The
global vaccine market has recently experienced significant growth caused by rising awareness of the importance of immunization and vaccination
benefits in emerging markets as well as by projects to fuel further global market expansion. For instance, The World Health Organization
(WHO) has undertaken initiatives to increase immunization awareness through its Global Vaccine Action Plan and Global Immunization Vision
and Strategy.
As
such, market research professionals project the global vaccine market size to reach $73.78 billion by 2028, representing a CAGR of 7.3%
over the forecast period, driven by rising prevalence of infectious diseases, increasing government funding for vaccine production and
growing emphasis on becoming immunized.
This
market acceleration has been coupled with various strategic transactions in the sector, including consolidations and mergers and acquisitions
in recent years. Major market participants have strategically acquired start-ups and mid-sized companies to broaden their products portfolios
and service offerings. For instance, in February 2019, Bharat Biotech acquired Chiron Behring Vaccines, one of the leading manufacturers
of rabies vaccines across the globe. Additionally, in October 2018, Emergent BioSolutions, a multinational specialty biopharmaceutical
company, acquired PaxVax for $270 million, and in July 2017 Sanofi acquired Protein Sciences for $650 million. In the pneumococcal disease
market specifically, for which we are targeting for our Streptococcus pneumoniae vaccine candidate, GlaxoSmithKline acquired Affinivax
for up to $3.3 billion in May 2022. The appetite of these companies to buttress their vaccine programs and pipelines reflects the increasing
importance of vaccines in the healthcare sector, both nationally and worldwide.
The
U.S. Centers for Disease Control, or CDC, its Advisory Committee on Immunization Practices, or ACIP, and similar international advisory
bodies develop vaccine recommendations for both children and adults. New pediatric vaccines that receive ACIP preferred recommendations
are almost universally adopted, and adult vaccines that receive a preferred recommendation are widely adopted. We believe that our vaccine
candidates will be well-positioned to obtain these preferred recommendations, by virtue of their longer and more durable immunity, which
could drive rapid and significant market adoption.
Pipeline
Our
vaccine candidates are being developed in a manner that is scalable, designed to be cost-effective and provide long-term benefit to patients
from infectious agents.
The
FDA regulatory approval process is lengthy and time-consuming, and we may experience significant delays in the clinical development and
regulatory approval of our vaccine candidates. Our vaccine candidates are in early stages of development and may fail in development
or suffer delays that materially and adversely affect their commercial viability. We may be unable to complete development of or commercialize
our vaccine candidates or experience significant delays in doing so due to regulatory or other uncertainties.
Our Vaccine Candidates
BWV-201: Streptococcus
pneumoniae (S. pneumoniae) vaccine program
We
are developing BWV-201, licensed from St. Jude Children’s Research Hospital, to prevent Acute Otitis Media, or AOM, in children
and adults, a leading cause of hospital visits, prescription antibiotics and potentially permanent hearing loss. Based on information
from the American Academy of Pediatrics, over 5 million cases of AOM are reported annually in the U.S., resulting in approximately 30
million medical care visits and over 10 million antibiotic prescriptions, representing approximately $4.3 billion spent on treatment
in the U.S. alone. AOM due to S. pneumoniae infections range from 30 to 50% of all AOM infections each year (Monsata 2012 2012;
7(4): e36226). In addition to AOM, we are exploring the potential for BWV-201 to protect against non-invasive pneumococcal pneumonia,
or colonization of the bacteria within the lungs that has not spread to the blood or other major organs. According to the CDC, pneumococcal
pneumonia leads to an estimated 150,000 hospitalizations each year in the US alone (CDC Fast Facts: Pneumococcal Disease) and while there
are commercially available pneumococcal vaccines, efficacy rates against pneumococcal pneumonia are low (Berild 2020; 9(4): 259) and
vaccines are serotype independent (CDC: Pneumococcal Disease). BWV-201 is a live attenuated serotype-independent intranasal vaccine candidate
for S. pneumoniae induced AOM and pneumococcal pneumonia.
BWV-101 and BWV-102:
Influenza vaccine program
The
company’s influenza vaccine programs are focused on developing transformational and novel influenza vaccines: BWV-101 for an influenza
vaccine to provide protection against H1, H3 and Flu B infections; and BWV-102 for a H1 only vaccine. This program is licensed from the
University of Oxford in which all relevant studies were performed to support our hypothesis. Our goal is to develop a vaccine that protects
against all influenza strains that commonly infect humans by targeting specific parts of the influenza viruses, which are of limited
variability across flu strains and induce a strong protective immune response. This POC will be leveraged to develop BWV-101 by studying
the cross-reactivity of different flu strains, H1, H3 and influenza B. The BWV-101 vaccine candidate may potentially provide a therapeutic
benefit that negates the need for annual vaccination, vaccine reformulation, and provide long-lasting broad protection against the flu
to millions globally (Thompson et al. Nature Communications. 2018. 9:385).
BWV Norovirus (NoV)
S&P Nanoparticle Versatile Vaccine Platform
Our Approach to Stimulating
the Immune System for Infectious Disease Protection
Our
S&P platform was co-invented by two researchers, Xi Jason Jiang, Ph.D., and Ming Tan, Ph.D., of the Division of Infectious Disease
at the Cincinnati Children’s Hospital Medical Center. The pre-clinical research conducted at CHMC provided encouraging data that
supports further investigation and development of the platform for our vaccine candidates. The S&P platform combines two or more
immunogenic components, a norovirus antigen plus at least one additional antigen, together creating novel constructs. The norovirus nanoparticle
enhances immunogenicity of the inserted antigen. The S & P particles themselves also act as antigens, and are large enough to trigger
an immune response to a foreign substance. By combining the norovirus nanoparticle with one or more antigens from other infectious disease(s),
the immune system is stimulated to create antibodies to both the norovirus and the additional antigen(s). Currently, we are evaluating
this platform to generate vaccine candidates for norovirus, rotavirus, malaria, monkeypox, and Marburg virus disease.
Key Elements of our Platform
We
are leveraging our disruptive norovirus nanoparticle platform to develop novel, broad-spectrum vaccines for adult and child infectious
disease prevention by taking advantage of:
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Flexible and Scalable discovery platform engine.
We believe we are able to design and create novel vaccines that are stable and scalable for broad spectrum prophylactics. Through
this platform’s adaptability, we may opportunistically expand our pipeline and potentially collaborate with third parties for
additional vaccines, as well as therapeutics. |
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Cost-effective and Rapid Production of Novel Vaccines.
We are potentially able to reduce the cost and time to manufacture a vaccine candidate by utilizing an E.coli expression platform,
compared to traditional vaccine production which uses other, longer production-time platforms, such as Chinese Hamster Ovary (CHO)
cells. We have bioengineered these nanoparticles to be stable and effective, as determined through animal immunogenicity studies,
using E.coli expression which may provide cost savings and efficiency compared to other VLPs needing a eukaryotic expression
system. (Pharmaceutics 2019, 11, 472; doi:10.3390/pharmaceutics11090472). |
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Multi-antigen and Pathogen Capabilities. One
of the key features of our platform is its ability to carry multiple antigens at a time, thereby creating a multi-targeted vaccine.
It also provides the opportunity to develop vaccines for protection against not only viral pathogens, but also bacterial and potentially
parasitic and fungal pathogens. |
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Therapeutic potential. We believe our platform
may offer opportunities to develop non-infectious disease therapeutic products, for example being used as a carrier or vehicle to
transport drugs to specific target locations. |
BWV-401: Chlamydia
Vaccine
We
are developing a live attenuated, orally delivered chlamydia vaccine derived from a murine strain of chlamydia, Chlamydia muridarum,
to protect individuals against chlamydia infection. By delivering this vaccine orally, BWV-401 may elicit transmucosal immunity and
provide protection against chlamydia in the genital tract post-vaccination without altering the gut microbiota or the development of
gut mucosal resident T cell responses to non-chlamydial infection. According to the Centers for Disease Control and Prevention, there
were about 1.6 million new cases of chlamydia reported in 2020 in the United States and globally, the World Health Organization estimates
about 129 million new cases each year. Additionally, given high estimations of asymptomatic cases and low availability of diagnostic
testing in low- and middle-income countries, these annual estimates may be an underrepresentation. Currently, there is no vaccine available
to prevent chlamydia infection, and the main treatment is through antibiotic regimens with the possibility of reinfection after antibiotics
have treated the disease. If left undetected or untreated, Chlamydia represents a major cause of pelvic inflammatory disease and infertility
in women. It is estimated that about 10 – 15% of women that experience untreaded chlamydia develop pelvic inflammatory disease
and face chronic pain or fertility problems later in life. Additionally, should women contract chlamydia during pregnancy or give birth
with an active infection, newborns may develop eye infections or pneumonia resulting from the disease. We believe this vaccine candidate
has the potential to protect individuals against this harmful disease and may eliminate the need for antibiotic prescriptions associated
with treating chlamydia.
BWV-301: Norovirus-rotavirus
vaccine program
We
are developing a norovirus-rotavirus vaccine, BWV-301, to prevent gastroenteritis utilizing our S&P platform. Preclinical data from
gnotobiotic pig studies have shown our vaccine can prevent severe gastroenteritis and reduces viral shedding. While rotavirus vaccines
exist in the market, no norovirus vaccine is available to date. Our vaccine would protect people from two of the most globally prevalent
viruses causing vomiting and diarrhea.
BWV-302: Norovirus-malaria
vaccine program
Additionally,
we are currently investigating a malaria vaccine, BWV-302, utilizing our norovirus S&P platform. The vaccine is designed to offer
protection from both norovirus and malaria, infectious diseases that occur frequently together in geographic regions. The vaccine utilizes
a protein identified on the surface of the plasmodium parasite being presented on the surface of the norovirus nanoparticle
Corporate
Information
Our
principal executive offices are located at Blue Water Vaccines Inc., at 201 E. Fifth Street, Suite 1900, Cincinnati, OH 45202, attention:
Corporate Secretary. Our telephone number is (513) 620-4101. Information about us is also available at our website at http://www.bluewatervaccines.com.
The information on our website is not a part of, or incorporated in, this prospectus.
Underwriters and Agents; Direct Sales
If underwriters are used
in a sale, they will acquire the offered securities for their own account and may resell the offered securities from time to time in
one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the
time of sale. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate.
Unless the prospectus supplement
states otherwise, the obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable
underwriting agreement. 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.
Dealers
We may sell the offered securities
to dealers as principals. The dealer may then resell such securities to the public either at varying prices to be determined by the dealer
or at a fixed offering price agreed to with us at the time of resale.
Institutional Purchasers
We may authorize agents,
dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant
to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement or
other offering materials, as the case may be, will provide the details of any such arrangement, including the offering price and commissions
payable on the solicitations.
We will enter into such delayed
contracts only with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may provide agents, underwriters,
dealers and remarketing firms with indemnification against certain 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, underwriters,
dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us in the ordinary course
of business. This includes commercial banking and investment banking transactions.
Market-Making; Stabilization and Other Transactions
There is currently no market
for any of the offered securities, other than our common stock, which is quoted on the Nasdaq Capital Market. If the offered securities
are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest
rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intends
to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market-making could be discontinued
at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the offered
securities. We have no current plans for listing of the debt securities, preferred stock, warrants or subscription rights on any
securities exchange or quotation system; any such listing with respect to any particular debt securities, preferred stock, warrants or
subscription rights will be described in the applicable prospectus supplement or other offering materials, as the case may be.
Any underwriter may engage
in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under
the Securities Exchange Act of 1934, as amended, or 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 or agents
that are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions in our 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 our 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.
Fees and Commissions
If 5% or more of the net
proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating in the offering or
affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule 5121.
DESCRIPTION OF SECURITIES
WE MAY OFFER
General
This prospectus describes
the general terms of our capital stock. The following description is not complete and may not contain all the information you should
consider before investing in our capital stock. For a more detailed description of these securities, you should read the applicable provisions
of Delaware law and our amended and restated certificate of incorporation (“Amended and Restated Certificate of Incorporation”)
and our amended and restated bylaws (“Amended and Restated Certificate of Bylaws”). When we offer to sell a particular series
of these securities, we will describe the specific terms of the series in a supplement to this prospectus. Accordingly, for a description
of the terms of any series of securities, you must refer to both the prospectus supplement relating to that series and the description
of the securities described in this prospectus. To the extent the information contained in the prospectus supplement differs from this
summary description, you should rely on the information in the prospectus supplement.
The total number of shares
of capital stock we are authorized to issue is 260,000,000 shares, of which (a) 250,000,000 are common stock and (b) 10,000,000
are preferred stock.
We, directly or through
agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately, up to $100,000,000 in the aggregate
of:
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warrants to purchase our securities; |
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subscription rights to purchase our securities; |
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secured or unsecured debt securities consisting of notes, debentures
or other evidences of indebtedness which may be senior debt securities, senior subordinated debt securities or subordinated debt
securities, each of which may be convertible into equity securities; or |
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units comprised of, or other combinations of, the foregoing securities. |
We may issue the debt securities
as exchangeable for or convertible into shares of common stock, preferred stock or other securities that may be sold by us pursuant to
this prospectus or any combination of the foregoing. The preferred stock may also be exchangeable for and/or convertible into shares
of common stock, another series of preferred stock or other securities that may be sold by us pursuant to this prospectus or any combination
of the foregoing. When a particular series of securities is offered, a supplement to this prospectus will be delivered with this
prospectus, which will set forth the terms of the offering and sale of the offered securities.
Common Stock
As of March 6, 2023, there were 15,911,868 and 16,371,597 shares of
common stock issued and outstanding, respectively, held of record by approximately 29 stockholders. Subject to preferential rights with
respect to any outstanding preferred stock, all outstanding shares of common stock are of the same class and have equal rights and attributes.
Under the terms of our Amended and Restated Certificate of Incorporation, holders of our common stock are entitled to one vote for each
share held on all matters submitted to a vote of stockholders, including the election of directors, and do not have cumulative voting
rights. The holders of outstanding shares of common stock are entitled to receive dividends out of assets or funds legally available for
the payment of dividends of such times and in such amounts as our board of directors from time to time may determine. Our common stock
is not entitled to pre-emptive rights and is not subject to conversion or redemption. Upon liquidation, dissolution or winding up of our
company, the assets legally available for distribution to stockholders are distributable ratably among the holders of our common stock
after payment of liquidation preferences, if any, on any outstanding payment of other claims of creditors. The rights, preferences and
privileges of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series
of preferred stock that we may designate and issue in the future.
Preferred Stock
Our Amended and Restated
Certificate of Incorporation empowers our board of directors, without further action by our stockholders, to establish and issue up to
10,000,000 shares of preferred stock in one or more class or series, which preferred stock may be offered by this prospectus and supplements
thereto. As of March 6, 2023, no shares of preferred stock were designated or outstanding.
We will fix the rights,
preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation relating to that series.
We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the terms of the series
of preferred stock we are offering before the issuance of the related series of preferred stock. This description will include any or
all of the following, as required:
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the title and stated value; |
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the number of shares we are offering; |
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the liquidation preference per share; |
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the dividend rate, period and payment date and method of calculation
for dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate; |
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any contractual limitations on our ability to declare, set aside or
pay any dividends; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any; |
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the provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase rights; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock,
and, if applicable, the conversion price, or how it will be calculated, and the conversion period; |
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whether the preferred stock will be exchangeable into debt securities,
and, if applicable, the exchange price, or how it will be calculated, and the exchange period; |
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voting rights, if any, of the preferred stock; |
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preemptive rights, if any; |
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restrictions on transfer, sale or other assignment, if any; |
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whether interests in the preferred stock will be represented by depositary
shares; |
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a discussion of any material or special United States federal income
tax considerations applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs; |
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any limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or
wind up our affairs; and |
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any other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred stock. |
If we issue shares of preferred
stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and non-assessable.
The Delaware General Corporation
Law provides that the holders of preferred stock will have the right to vote separately as a class if the amendment would increase or
decrease the aggregate number of authorized shares of such class, increase or decrease the par value of the shares of such class, or
alter or change the powers, preferences, or special rights of the shares of such class so as to affect them adversely. This right is
in addition to any voting rights provided for in the applicable certificate of designation.
Our board of directors may
authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights
of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in control
of our Company or make removal of management more difficult. Additionally, the issuance of preferred stock could have the effect of decreasing
the market price of our common stock.
Purchase Contracts
We may issue purchase contracts,
representing contracts obligating holders to purchase from us, and us to sell to the holders, a specific or varying number of common
stock, preferred stock, warrants, depositary shares, debt securities, warrants or any combination of the above, at a future date or dates.
Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying
number of common stock, preferred stock, warrants, depositary shares, debt securities, or any combination of the above. The price of
the securities and other property subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may
be determined by reference to a specific formula set forth in the purchase contracts.
The purchase contracts may
be issued separately or as a part of a unit that consists of (a) a purchase contract and (b) one or more of the other securities that
may be sold by us pursuant to this prospectus or any combination of the foregoing, which may secure the holders’ obligations to
purchase the securities under the purchase contract. The purchase contracts may require us to make periodic payments to the holders or
require the holders to make periodic payments to us. These payments may be unsecured or prefunded and may be paid on a current or on
a deferred basis. The purchase contracts may require holders to secure their obligations under the contracts in a manner specified in
the applicable prospectus supplement.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K
that we file with the SEC, forms of the purchase contracts and purchase contract agreement, if any. The applicable prospectus supplement
will describe the terms of any purchase contracts in respect of which this prospectus is being delivered, including, to the extent applicable,
the following:
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whether the purchase contracts obligate the holder or us to purchase
or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of
each of those securities, or the method of determining those amounts; |
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whether the purchase contracts are to be prepaid or not; |
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whether the purchase contracts are to be settled by delivery, or by
reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract; |
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any acceleration, cancellation, termination or other provisions relating
to the settlement of the purchase contracts; and |
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whether the purchase contracts will be issued in fully registered or
global form. |
Warrants
We may issue warrants to
purchase our securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued
independently or together with any other securities that may be sold by us pursuant to this prospectus or any combination of the foregoing
and may be attached to, or separate from, such securities. To the extent warrants that we issue are to be publicly-traded, each series
of such warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K
that we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement relating to any warrants that
we may offer will contain the specific terms of the warrants and a description of the material provisions of the applicable warrant agreement,
if any. These terms may include the following:
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the title of the warrants; |
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the price or prices at which the warrants will be issued; |
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the designation, amount and terms of the securities or other rights
for which the warrants are exercisable; |
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the designation and terms of the other securities,
if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
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the aggregate number of warrants; |
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any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the warrants; |
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the price or prices at which the securities or other rights purchasable
upon exercise of the warrants may be purchased; |
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if applicable, the date on and after which the warrants and the securities
or other rights purchasable upon exercise of the warrants will be separately transferable; |
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a discussion of any material U.S. federal income tax considerations
applicable to the exercise of the warrants; |
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the date on which the right to exercise the warrants will commence,
and the date on which the right will expire; |
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the maximum or minimum number of warrants that may be exercised at
any time; |
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information with respect to book-entry procedures, if any; and |
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any other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants. |
Exercise of Warrants.
Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights, at the exercise price stated
or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the
expiration date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close
of business on the expiration date, if applicable, unexercised warrants will become void. Warrants may be exercised in the manner described
in the applicable prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate
at the corporate trust office of the warrant agent, if any, or any other office indicated in the prospectus supplement, we will, as soon
as possible, forward the securities or other rights that the warrant holder has purchased. If the warrant holder exercises less than
all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining warrants.
Subscription Rights
We may issue rights to purchase
our securities. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights
offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which
such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. In connection
with a rights offering to holders of our capital stock a prospectus supplement will be distributed to such holders on the record date
for receiving rights in the rights offering set by us.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K
that we file with the SEC, forms of the subscription rights, standby underwriting agreement or other agreements, if any. The prospectus
supplement relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining the security holders entitled to the rights
distribution; |
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the aggregate number of rights issued and the aggregate amount of securities
purchasable upon exercise of the rights; |
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the conditions to completion of the rights offering; |
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the date on which the right to exercise the rights will commence and
the date on which the rights will expire; and |
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any applicable federal income tax considerations. |
Each right would entitle
the holder of the rights to purchase the principal amount of securities at the exercise price set forth in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
Holders may exercise rights
as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and
duly executed at the corporate trust office of the rights agent, if any, or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. If less than all of the rights
issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to
or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements,
as described in the applicable prospectus supplement.
Depositary Shares
General. We may offer fractional
shares of preferred stock, rather than full shares of preferred stock. If we decide to offer fractional shares of our preferred stock,
we will issue receipts for depositary shares. Each depositary share will represent a fraction of a share of a particular series of our
preferred stock, and the applicable prospectus supplement will indicate that fraction. The shares of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a depositary that is a bank or trust company that meets certain requirements
and is selected by us. The depositary will be specified in the applicable prospectus supplement. Each owner of a depositary share will
be entitled to all of the rights and preferences of the preferred stock represented by the depositary share.
The depositary shares will
be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons
purchasing the fractional shares of our preferred stock in accordance with the terms of the offering. We will file as exhibits to the
registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we
file with the SEC, forms of the deposit agreement, form of certificate of designation of underlying preferred stock, form of depositary
receipts and any other related agreements.
Dividends and Other Distributions.
The depositary will distribute all cash dividends or other cash distributions received by it in respect of the preferred stock to the
record holders of depositary shares relating to such preferred shares in proportion to the numbers of depositary shares held on the relevant
record date.
In the event of a distribution
other than in cash, the depositary will distribute securities or property received by it to the record holders of depositary shares in
proportion to the numbers of depositary shares held on the relevant record date, unless the depositary determines that it is not feasible
to make such distribution. In that case, the depositary may make the distribution by such method as it deems equitable and practicable.
One such possible method is for the depositary to sell the securities or property and then distribute the net proceeds from the sale
as provided in the case of a cash distribution.
Redemption of Depositary
Shares. Whenever we redeem the preferred stock, the depositary will redeem a number of depositary shares representing the same number
of shares of preferred stock so redeemed. If fewer than all of the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot, pro rata or by any other equitable method as the depositary may determine.
Voting of Underlying Shares.
Upon receipt of notice of any meeting at which the holders of our preferred stock of any series are entitled to vote, the depositary
will mail the information contained in the notice of the meeting to the record holders of the depositary shares relating to that series
of preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to
the exercise of the voting rights represented by the number of shares of preferred stock underlying the holder’s depositary shares.
The depositary will endeavor, to the extent it is practical to do so, to vote the number of whole shares of preferred stock underlying
such depositary shares in accordance with such instructions. We will agree to take all action that the depositary may deem reasonably
necessary in order to enable the depositary to do so. To the extent the depositary does not receive specific instructions from the holders
of depositary shares relating to such preferred shares, it will abstain from voting such shares of preferred stock.
Withdrawal of Shares. Upon
surrender of depositary receipts representing any number of whole shares at the depositary’s office, unless the related depositary
shares previously have been called for redemption, the holder of the depositary shares evidenced by the depositary receipts will be entitled
to delivery of the number of whole shares of the related series of preferred stock and all money and other property, if any, underlying
such depositary shares. However, once such an exchange is made, the preferred stock cannot thereafter be re-deposited in exchange for
depositary shares. Holders of depositary shares will be entitled to receive whole shares of the related series of preferred stock on
the basis set forth in the applicable prospectus supplement. If the depositary receipts delivered by the holder evidence a number of
depositary shares representing more than the number of whole shares of preferred stock of the related series to be withdrawn, the depositary
will deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares.
Amendment and Termination
of Depositary Agreement. The form of depositary receipt evidencing the depositary shares and any provision of the applicable depositary
agreement may at any time be amended by agreement between us and the depositary. We may, with the consent of the depositary, amend the
depositary agreement from time to time in any manner that we desire. However, if the amendment would materially and adversely alter the
rights of the existing holders of depositary shares, the amendment would need to be approved by the holders of at least a majority of
the depositary shares then outstanding.
The depositary agreement
may be terminated by us or the depositary if:
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all outstanding depositary shares have been redeemed;
or |
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there has been a final distribution in respect of
the shares of preferred stock of the applicable series in connection with our liquidation, dissolution or winding up and such distribution
has been made to the holders of depositary receipts. |
Resignation and Removal of
Depositary. The depositary may resign at any time by delivering to us notice of its election to do so. We may remove a depositary at
any time. Any resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of appointment.
Charges of Depositary. We
will pay all transfer and other taxes and governmental charges arising solely from the existence of any depositary arrangements. We will
pay all charges of each depositary in connection with the initial deposit of the preferred shares of any series, the initial issuance
of the depositary shares, any redemption of such preferred shares and any withdrawals of such preferred shares by holders of depositary
shares. Holders of depositary shares will be required to pay any other transfer taxes.
Notices. Each depositary
will forward to the holders of the applicable depositary shares all notices, reports and communications from us which are delivered to
such depositary and which we are required to furnish the holders of the preferred stock represented by such depositary shares.
Miscellaneous. The depositary
agreement may contain provisions that limit our liability and the liability of the depositary to the holders of depositary shares. Both
the depositary and we are also entitled to an indemnity from the holders of the depositary shares prior to bringing, or defending against,
any legal proceeding. We or any depositary may rely upon written advice of counsel or accountants, or information provided by persons
presenting preferred shares for deposit, holders of depositary shares or other persons believed by us to be competent and on documents
believed by us or them to be genuine.
Debt Securities
We may issue debt securities
and incur additional indebtedness other than through the offering of debt securities pursuant to this prospectus. As used in this prospectus,
the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness that we may issue from
time to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated debt securities. We
may also issue convertible debt securities. Debt securities may be issued under an indenture (which we refer to herein as an Indenture),
which are contracts entered into between us and a trustee to be named therein. The form of Indenture has been filed as an exhibit to
the registration statement of which this prospectus forms a part. It is likely that convertible debt securities will not be issued under
an Indenture.
The debt securities may
be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more guarantors, if any. The
obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent
conveyance under applicable law. In the event that any series of debt securities will be subordinated to other indebtedness that
we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus supplement relating to the subordinated
debt securities.
We may issue debt securities
from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. Unless indicated
in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the
debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other
outstanding debt securities of that series, will constitute a single series of debt securities under the applicable Indenture and will
be equal in ranking.
Should an Indenture relate
to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution of assets to satisfy our
outstanding indebtedness or an event of default under a loan agreement relating to secured indebtedness of our company or its subsidiaries,
the holders of such secured indebtedness, if any, would be entitled to receive payment of principal and interest prior to payments on
the unsecured indebtedness issued under an Indenture.
Each prospectus supplement
will describe the terms relating to the specific series of debt securities. These terms will include some or all of the following:
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the title of debt securities and whether the debt
securities are senior or subordinated; |
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any limit on the aggregate principal amount of debt
securities of such series; |
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the percentage of the principal amount at which the
debt securities of any series will be issued; |
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the ability to issue additional debt securities of the same series; |
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the purchase price for the debt securities and the denominations of
the debt securities; |
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the specific designation of the series of debt securities being offered; |
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the maturity date or dates of the debt securities and the date or dates
upon which the debt securities are payable and the rate or rates at which the debt securities of the series shall bear interest,
if any, which may be fixed or variable, or the method by which such rate shall be determined; |
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the basis for calculating interest; |
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the date or dates from which any interest will accrue or the method
by which such date or dates will be determined; |
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the duration of any deferral period, including the period during which
interest payment periods may be extended; |
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whether the amount of payments of principal of (and premium, if any)
or interest on the debt securities may be determined with reference to any index, formula or other method, such as one or more currencies,
commodities, equity indices or other indices, and the manner of determining the amount of such payments; |
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the dates on which we will pay interest on the debt securities and
the regular record date for determining who is entitled to the interest payable on any interest payment date; |
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the place or places where the principal of (and premium, if any) and
interest on the debt securities will be payable, where any securities may be surrendered for registration of transfer, exchange or
conversion, as applicable, and notices and demands may be delivered to or upon us pursuant to the applicable Indenture; |
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the rate or rates of amortization of the debt securities; |
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any terms for the attachment to the debt securities of warrants, options
or other rights to purchase or sell our securities; |
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if the debt securities will be secured by any collateral and, if so,
a general description of the collateral and the terms and provisions of such collateral security, pledge or other agreements; |
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if we possess the option to do so, the periods within which and the
prices at which we may redeem the debt securities, in whole or in part, pursuant to optional redemption provisions, and the other
terms and conditions of any such provisions; |
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our obligation or discretion, if any, to redeem, repay or purchase
debt securities by making periodic payments to a sinking fund or through an analogous provision or at the option of holders of the
debt securities, and the period or periods within which and the price or prices at which we will redeem, repay or purchase the debt
securities, in whole or in part, pursuant to such obligation, and the other terms and conditions of such obligation; |
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the terms and conditions, if any, regarding the option or mandatory
conversion or exchange of debt securities; |
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the period or periods within which, the price or prices at which and
the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part at our option and, if
other than by a board resolution, the manner in which any election by us to redeem the debt securities shall be evidenced; |
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any restriction or condition on the transferability of the debt securities
of a particular series; |
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the portion, or methods of determining the portion, of the principal
amount of the debt securities which we must pay upon the acceleration of the maturity of the debt securities in connection with any
event of default; |
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the currency or currencies in which the debt securities will be denominated
and in which principal, any premium and any interest will or may be payable or a description of any units based on or relating to
a currency or currencies in which the debt securities will be denominated; |
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provisions, if any, granting special rights to holders of the debt
securities upon the occurrence of specified events; |
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any deletions from, modifications of or additions to the events of
default or our covenants with respect to the applicable series of debt securities, and whether or not such events of default or covenants
are consistent with those contained in the applicable Indenture; |
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any limitation on our ability to incur debt, redeem stock, sell our
assets or other restrictions; |
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the application, if any, of the terms of the applicable Indenture relating
to defeasance and covenant defeasance (which terms are described below) to the debt securities; |
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what subordination provisions will apply to the debt securities |
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the terms, if any, upon which the holders may convert or exchange the
debt securities into or for our securities or property; |
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whether we are issuing the debt securities in whole or in part in global
form; |
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any change in the right of the trustee or the requisite holders of
debt securities to declare the principal amount thereof due and payable because of an event of default; |
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the depositary for global or certificated debt securities, if any; |
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any material federal income tax consequences applicable to the debt
securities, including any debt securities denominated and made payable, as described in the prospectus supplements, in foreign currencies,
or units based on or related to foreign currencies; |
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any right we may have to satisfy, discharge and defease our obligations
under the debt securities, or terminate or eliminate restrictive covenants or events of default in the Indentures, by depositing
money or U.S. government obligations with the trustee of the Indentures; |
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the names of any trustees, depositories, authenticating or paying agents,
transfer agents or registrars or other agents with respect to the debt securities; |
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to whom any interest on any debt security shall be payable, if other
than the person in whose name the security is registered, on the record date for such interest, the extent to which, or the manner
in which, any interest payable on a temporary global debt security will be paid; |
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if the principal of or any premium or interest on any debt securities
is to be payable in one or more currencies or currency units other than as stated, the currency, currencies or currency units in
which it shall be paid and the periods within and terms and conditions upon which such election is to be made and the amounts payable
(or the manner in which such amount shall be determined); |
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the portion of the principal amount of any debt securities which shall
be payable upon declaration of acceleration of the maturity of the debt securities pursuant to the applicable Indenture; |
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if the principal amount payable at the stated maturity of any debt
security of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount which shall
be deemed to be the principal amount of such debt securities as of any such date for any purpose, including the principal amount
thereof which shall be due and payable upon any maturity other than the stated maturity or which shall be deemed to be outstanding
as of any date prior to the stated maturity (or, in any such case, the manner in which such amount deemed to be the principal amount
shall be determined); and |
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any other specific terms of the debt securities, including any modifications
to the events of default under the debt securities and any other terms which may be required by or advisable under applicable laws
or regulations. |
Unless otherwise specified
in the applicable prospectus supplement, we do not anticipate the debt securities will be listed on any securities exchange. Holders
of the debt securities may present registered debt securities for exchange or transfer in the manner described in the applicable prospectus
supplement. Except as limited by the applicable Indenture, we will provide these services without charge, other than any tax or other
governmental charge payable in connection with the exchange or transfer.
Debt securities may bear
interest at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified in the prospectus supplement,
we may sell debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate,
or at a discount below their stated principal amount. We will describe in the applicable prospectus supplement any special federal income
tax considerations applicable to these discounted debt securities.
We may issue debt securities
with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be
determined by referring to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such debt
securities may receive a principal amount on any principal payment date, or interest payments on any interest payment date, that are
greater or less than the amount of principal or interest otherwise payable on such dates, depending upon the value on such dates of applicable
currency, commodity, equity index or other factors. The applicable prospectus supplement will contain information as to how we will determine
the amount of principal or interest payable on any date, as well as the currencies, commodities, equity indices or other factors to which
the amount payable on that date relates and certain additional tax considerations.
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 may issue under a separate agreement. We may enter into unit agreements with a unit agent. Each
unit agent, if any, may be a bank or trust company that we select. We will indicate the name and address of the unit agent, if any, in
the applicable prospectus supplement relating to a particular series of units. Specific unit agreements, if any, will contain additional
important terms and provisions. We will file as an exhibit to the registration statement of which this prospectus is a part, or will
incorporate by reference from a current report that we file with the SEC, the form of unit and the form of each unit agreement, if any,
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:
|
● |
the title of the series of units; |
|
● |
identification and description of the separate constituent securities
comprising the units; |
|
● |
the price or prices at which the units will be issued; |
|
● |
the date, if any, on and after which the constituent securities comprising
the units will be separately transferable; |
|
● |
a discussion of certain United States federal income tax considerations
applicable to the units; and |
|
● |
any other material terms of the units and their constituent securities. |
Anti-Takeover Effects of Delaware Law and
Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Some provisions of Delaware
law, our Amended and Restated Certificate of Incorporation and our Amended and Restated Bylaws could prohibit or delay mergers or other
takeover or change in control attempts and, accordingly, may discourage attempts to acquire us even though such a transaction may offer
our stockholders the opportunity to sell their stock at a price above the prevailing market price.
These provisions, summarized
below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased
protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure
us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of
their terms.
Delaware Anti-Takeover Statute
We are subject to Section
203 of the General Corporation Law of the State of Delaware, which prohibits persons deemed to be “interested stockholders”
from engaging in a “business combination” with a publicly held Delaware corporation for three years following the date these
persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested
stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder”
is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder
status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger,
asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision
may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors.
Choice of Forum
Our Amended and Restated
Certificate of Incorporation provides that, unless we consent in writing to an alternative forum, to the fullest extent permitted by
law, that derivative actions brought in our name, actions against directors, officers and employees for breach of fiduciary duty and
certain other actions may be brought only in the Court of Chancery in the State of Delaware, except any action (A) as to which the Court
of Chancery in the State of Delaware determines that there is an indispensable party not subject to the jurisdiction of the Court of
Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following
such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery or (C) for
which the Court of Chancery does not have subject matter jurisdiction. If an action is brought outside of Delaware, the stockholder bringing
the suit will be deemed to have consented to service of process on such stockholder’s counsel. Although we believe this provision
benefits us by providing increased consistency in the application of law in the types of lawsuits to which it applies, a court may determine
that this provision is unenforceable, and to the extent it is enforceable, the provision may have the effect of discouraging lawsuits
against our directors and officers.
Our Amended and Restated
Certificate of Incorporation provides that the exclusive forum provision will be applicable to the fullest extent permitted by applicable
law, subject to certain exceptions. 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. In addition, our Amended and Restated Certificate of Incorporation provides that, unless we consent
in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest
extent permitted by law, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities
Act or the rules and regulations promulgated thereunder. We note, however, that there is uncertainty as to whether a court would enforce
this provision and that investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder.
Section 22 of the Securities Act creates concurrent jurisdiction for state and federal courts over all suits brought to enforce any duty
or liability created by the Securities Act or the rules and regulations thereunder.
As permitted by Section 102
of the Delaware General Corporation Law, we have adopted provisions in our Amended and Restated Certificate of Incorporation and our
Amended and Restated Bylaws that limit or eliminate the personal liability of our directors for a breach of their fiduciary duty of care
as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business
judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
| ● | any
breach of the director’s duty of loyalty to us or our stockholders; |
| ● | any
act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law; |
| ● | any
act related to unlawful stock repurchases, redemptions or other distributions or payment
of dividends; or |
| ● | any
transaction from which the director derived an improper personal benefit. |
These limitations of liability
do not affect the availability of equitable remedies such as injunctive relief or rescission. Our Amended and Restated Certificate of
Incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware
law.
As permitted by Section 145
of the Delaware General Corporation Law, our Amended and Restated Bylaws provide that:
| ● | we
may indemnify our directors, officers and employees to the fullest extent permitted by the
Delaware General Corporation Law, subject to limited exceptions; |
| ● | we
may advance expenses to our directors, officers and employees in connection with a legal
proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject
to limited exceptions; and |
| ● | the
rights provided in our bylaws are not exclusive. |
Our Amended and Restated
Certificate of Incorporation and our Amended and Restated Bylaws provide for the indemnification provisions described above and elsewhere
herein. We have entered or will enter into, and intend to continue to enter into, separate indemnification agreements with our directors
and officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These
indemnification agreements generally require us, among other things, to indemnify our officers and directors against certain liabilities
that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct.
These indemnification agreements also generally require us to advance any expenses incurred by the directors or officers as a result
of any proceeding against them as to which they could be indemnified. These indemnification provisions and the indemnification agreements
may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses
incurred, arising under the Securities Act.
We have purchased and currently
intend to maintain insurance on behalf of each and every person who is or was a director or officer of the Registrant against any loss
arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
FORMS OF SECURITIES
Each security may be represented
either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire
issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive
securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive
payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants
or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s
beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Registered Global
Securities
We may issue the securities
in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the
applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global
securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount
of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive
registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the depositary or those nominees.
The specific terms of the
depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial
interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or
persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit,
on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of
the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities
will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the
transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants,
and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require
that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary,
or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable
indenture, warrant agreement or unit agreement.
Except as described below,
owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered
global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive
form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for
that registered global security and, if that person is not a participant, on the procedures of the participant through which the person
owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand
that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement
or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that
action or would otherwise act upon the instructions of beneficial owners holding through them.
Payments to holders with
respect to securities represented by a registered global security registered in the name of a depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of the Company,
the trustees, the warrant agents, the unit agents or any other agent of the Company, agent of the trustees, the warrant agents or unit
agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership
interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership
interests.
We expect that the depositary
for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or
other payment or distribution to holders of that registered global security, will immediately credit participants’ accounts in
amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary.
We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants
will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts
of customers or registered in “street name,” and will be the responsibility of those participants.
If the depositary for any
of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases
to be a clearing agency registered under the Exchange Act and a successor depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security
that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered
in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or
theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants
with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.