As filed with the Securities and Exchange
Commission on March 12, 2021.
|
Registration No. 333-
|
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
RESONANT INC.
(Exact name of registrant as specified
in its charter)
Delaware
(State of other jurisdiction of
incorporation or organization)
|
45-4320930
(I.R.S. Employer
Identification No.)
|
10900 Stonelake Boulevard
Suite 100, Office 02-130
Austin, Texas 78759
(805) 308-9803
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
George Holmes
Chief Executive Officer
Resonant Inc.
10900 Stonelake Boulevard
Suite 100, Office 02-130
Austin, Texas 78759
(805) 308-9803
(Name, address, including zip code, and
telephone number, including area code of agent for service)
Copy to:
John J. McIlvery, Esq.
Stubbs Alderton & Markiles, LLP
15260 Ventura Boulevard, 20th
Floor
Sherman Oaks, California 91403
(818)
444-4500
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨
|
Accelerated filer ¨
|
Non-accelerated filer x
|
Smaller reporting company x
|
|
Emerging growth company ¨
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered
|
Proposed maximum aggregate offering price (1)
|
Amount of registration fee (2)
|
Common Stock, par value $0.001 per share
|
(3)
|
N/A
|
Preferred Stock, par value $0.001 per share
|
(3)
|
N/A
|
Warrants
|
(3)
|
N/A
|
Units
|
(3)
|
N/A
|
Debt Securities
|
(3)
|
N/A
|
Total:
|
$100,000,000
|
$10,910.00
|
|
(1)
|
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate
principal amount of debt securities, and such indeterminate number of warrants to purchase common stock, preferred stock and/or
debt securities as may be sold by the registrant from time to time, which together shall have an aggregate initial offering price
not to exceed $100,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt
securities shall be in such greater principal amount at maturity as shall result in an aggregate offering price not to exceed $100,000,000,
less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold
separately or as units with the other securities registered hereunder. The proposed maximum offering price per class of security
will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered
hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock
and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide
for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any of such securities. In
addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number
of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result
of stock splits, stock dividends or similar transactions.
|
|
(2)
|
Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
|
|
(3)
|
The proposed maximum aggregate offering price per class of security will be determined from time
to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified
as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
|
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further
amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended (the “Securities Act”) or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission (the “SEC”), acting pursuant to said Section 8(a),
may determine.
EXPLANATORY NOTE
This
registration statement contains:
|
·
|
a base prospectus, which covers the offering, issuance and sale
by us of up to a maximum aggregate offering price of $100,000,000 of our common stock, preferred stock, debt securities, warrants,
units and/or rights in one or more offerings, including our existing at-the-market offering as described below; and
|
|
·
|
a sales agreement prospectus supplement, which covers the offering,
issuance and sale by us of up to an additional maximum aggregate offering price of $50,000,000 of our common stock in an at-the-market
offering that may be issued and sold under our existing At the-Market Equity Offering Sales Agreement dated August 14, 2020, or
the Sales Agreement, with Stifel, Nicolaus & Company, Incorporated, or Stifel.
|
We previously entered
into the Sales Agreement with Stifel relating to the sale and issuance of shares of our common stock, and filed with the Securities
and Exchange Commission, or the SEC, a prospectus supplement dated August 14, 2020, and accompanying prospectus dated November
29, 2018, to offer and sell from time to time pursuant to the Sales Agreement shares of our common stock having an aggregate offering
price of up to $25,000,000. The prospectus supplement, and the accompanying prospectus (together, the “prior sales agreement
prospectus supplement”), are part of the registration statements on Form S-3 (File No. 333-228353 and File No. 333-246336)
that we filed with the SEC using a “shelf” registration process.
As of March 11,
2021, we have sold a total of 5,383,601 shares of our common stock for gross proceeds of $15,643,341 under the prior sales agreement
prospectus supplement, which leaves a total maximum aggregate offering price of $9,356,659 of our common stock available for sale
under the prior sales agreement prospectus supplement immediately prior to the filing of this registration statement.
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base
prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus supplement immediately
follows the base prospectus. The common stock that may be offered, issued and sold by the registrant under the sales agreement
prospectus supplement is included in the $100,000,000 of securities that may be offered, issued and sold by us under the base prospectus.
Any portion of the $100,000,000 included in the sales agreement prospectus supplement that is not previously sold or included in
an active placement notice pursuant to the Sales Agreement is available for sale in other offerings pursuant to the base prospectus,
and if no shares are sold under the Sales Agreement, the full $100,000,000 of securities may be sold in other offerings pursuant
to the base prospectus and a corresponding prospectus supplement.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, Dated March 12, 2021
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
From time to time,
we may offer and sell up to $100,000,000 of any combination of the securities described in this prospectus, either individually
or in combination with other securities. We may also offer common stock or preferred stock upon conversion of debt securities,
common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
We will provide
the specific terms of these offerings and securities in one or more supplements to this prospectus. We may also authorize one or
more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related
free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated
by reference, before buying any of the securities being offered.
Our common stock
is traded on The Nasdaq Capital Market under the symbol “RESN.” On March 4, 2021, the last reported sale price of our
common stock on The Nasdaq Capital Market was $4.13. The applicable prospectus supplement will contain information, where
applicable, as to other listings, if any, on The NASDAQ Capital Market or other securities exchange of the securities covered by
the applicable prospectus supplement.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
“Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under
similar headings in the other documents that are incorporated by reference into this prospectus.
This prospectus
may not be used to offer or sell any securities unless accompanied by a prospectus supplement.
The securities
may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers,
on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section titled “Plan
of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect
to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts
and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021
TABLE OF CONTENTS
Page
______________
You should rely
only on the information that we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement
and any related free writing prospectus that we may authorize to be provided to you. We have not authorized anyone to provide you
with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything
not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize
to be provided to you. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell
only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume
that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
only as of the date on the front of the document and that any information we have incorporated by reference is accurate only as
of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a security.
ABOUT THIS PROSPECTUS
This prospectus
is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission utilizing a “shelf”
registration process. Under this shelf registration process, we may offer shares of our common stock and preferred stock and various
series of debt securities in one or more offerings, up to a total dollar amount of $100,000,000. This prospectus provides you with
a general description of the securities we may offer.
Each time we offer
a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information
about the terms of those securities. We may also authorize one or more free writing prospectuses to be provided to you that may
contain material information relating to these offerings. We may also add, update or change in the prospectus supplement (and in
any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus
or in the documents that we have incorporated by reference into this prospectus. We urge you to carefully read this prospectus,
any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein
by reference as described under the heading “Incorporation of Certain Information by Reference,” before buying any
of the securities being offered.
THIS PROSPECTUS
MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The information
appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of
the date on the front of the document and any information we have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations and
prospects may have changed since those dates.
This prospectus
contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual
documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading
“Where You Can Find More Information.”
This prospectus and the information incorporated
herein by reference include trademarks, services marks and trade names owned by us or other companies. All trademarks, service
marks and trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related
free writing prospectuses are the property of their respective owners.
Unless the context otherwise requires, the
terms “we,” “our,” “us,” “our company,” and “Resonant” refer to Resonant
Inc. and its subsidiaries.
RESONANT INC.
Resonant is a late-stage development company
that has created an innovative software, intellectual property, or IP, and services platform that has the ability to increase designer
efficiency, reduce the time to market and lower unit costs in the designs of filters for radio frequency, or RF, front-ends for
the mobile device, automotive, medical, internet-of-things and related industries. The RF front-end, or RFFE, is the circuitry
in a device responsible for analog signal processing and is located between the device’s antenna and its digital circuitry.
The software platform we continue to develop is based on fundamentally new technology that we call Infinite Synthesized Networks®,
or ISN®, to configure and connect resonators, the building blocks of RF filters. Filters are a critical component of the RF
front-end used to select desired radio frequency signals and reject unwanted signals. Our ISN® platform allows us to develop
unique, custom designs that address the increasing complexity of the RFFE due to increasing bandwidth requirements, such as by
using carrier aggregation (the combining of multiple frequencies into a single data stream to increase throughput through higher
data rates), or CA, by both reducing the size of the filter and improving performance. Our goal is to utilize our ISN® platform
to support our customers in reducing their time to develop complex filter and module designs, to access new classes of filter designs,
and to do it more cost effectively. Additionally, our ISN® platform has allowed us to expand our customer focus beyond just
filter manufacturers by enabling a new class of customer - fabless filter manufacturers. These companies do not have their own
internal filter fabrication facility, or fab, and typically already would be supplying other products in the RFFE to the original
equipment manufacturers (OEMs), and, as a result do not require a protracted new vendor qualification process in order to supply
parts. Through our existing customer relationships, we are able to leverage our ISN® tools to deliver cutting edge filter designs
to these fabless filter manufacturers.
We are commercializing our technology
through the creation of filter designs that address the problems in the high growth RFFE industry created by the growing number
of frequency bands in mobile and other RFFE enabled devices. The worldwide adoption of Long Term Evolution, or LTE, as the global
standard, the transition to 5G, and the use of mobile devices to access the Internet, has resulted in massive proliferation of
frequency bands which, when combined with CA for higher data rates and multiple input multiple output, or MIMO, has resulted in
an ever-increasing number and complexity of filters in the RFFE. We have developed and continue to expand a series of single-band
designs for frequency bands presently dominated by larger and more expensive bulk acoustic wave, or BAW, filters. We are also developing
multiplexer filter designs for two or more bands to address the CA requirements of our customers. We are using our ISN® platform
to efficiently integrate these designs into RF modules for our module customers. Currently, we are leveraging ISN® to develop
these designs targeted for either the Surface Acoustic Wave (SAW) or Temperature Compensated, Surface Acoustic Wave (TC-SAW) manufacturing
processes. In 2018 we further extended ISN® for BAW designs, which has resulted in our invention of a resonator structure based
on a combination of interdigital transducer (IDT) and piezoelectric membrane, which we call XBAR®, which exhibits performance
parameters suitable for 5G and WiFi applications - high frequency operation, large bandwidth and high power reliability. Our success
with XBAR® is dependent on our ability to develop high frequency filters utilizing these resonator structures that are successfully
adopted by our targeted customers, which will be determined by our ability to show improved performance over competing products
or significantly reduce the size and cost of their products.
We believe licensing our designs, either
as prepaid royalties or royalties paid as products ship, is the most direct and effective means of validating our ISN® platform
and IP to address this rapidly growing market. Our target customers make part or all of the RFFE. We intend to retain ownership
of our designs, and we expect to be compensated through license fees and royalties based on sales of RFFE filters that incorporate
our designs and leverage our ISN® platform.
Our customer engagement process
typically begins with the execution of a Joint Development Agreement, or JDA, and License Agreement, or LA, for specific
bands. Depending on the complexity of the design, we estimate that initial samples of products to OEMs, will occur typically
within nine to thirty-six months following execution of a license agreement. We classify these new designs as either ISN®
Ready (9-12 months), ISN® Pilot (12-18 months), ISN® Advanced (18-36 months) or ISN® Development (Custom).
Following these development cycles, designs are manufactured, qualified by our customers and sampled to OEM customers. Our
customers can take from three to six months to qualify a design and then the OEMs can take an additional three to six months,
or longer, to qualify a design as fit for use, reliable and ready for mass production. The point at which an OEM begins
taking product from our customers in mass production is typically when royalty revenues would begin. Our customer agreements
typically provide for upfront design fees and royalty payments for each unit sold using our filter designs and typically last
for a minimum of two years, but may be renewed for a longer period. More recently our agreements have included pre-paid
royalties, which can be fully paid-up for a design, or a partial pre-pay with subsequent royalties when the part begins
shipping.
In 2017, in order to further facilitate
our fabless filter program, and to provide manufacturing stability across the supply chain, we embarked on the creation of our
Foundry Program. Foundries joining Resonant’s program first complete a foundry evaluation process to ensure alignment with
our customers for filter performance, manufacturing quality and capacity, and business practices. Once the evaluation is completed,
the foundry runs a characterization lot, used to create a foundry process design kit, after which we are ready to start designs
for manufacture in the foundry. Packaging/Back-end vendors can also join the program by completing a back-end evaluation process
to match their capabilities with foundry partners and our customers. Through this program we enable a secure supply chain for all
our customers.
In 2019, we began development of Filter
IP Standard Library designs to enable faster time to market for our customers. Further, the first Filter IP Library design was
incorporated into Cadence Design Systems, Inc.'s AWR design suite, allowing module designers access to Resonant filter designs.
At Mobile World Congress we showed the first 5G filter based upon XBAR® technology - an n79 filter. Subsequently, we accepted
a $7.0 million investment and signed a commercial agreement for the development and license of filters for four bands based on
XBAR® technology, with the industry's largest provider of filters for the RFFE. The commercial agreement provides for our receipt
of up to an aggregate of $9.0 million of contract consideration in the form of "pre-paid royalties" for the licensed
designs and certain other intellectual property developed in the collaboration, payable in installments over a multi-year development
period, with each installment conditioned upon our achievement of certain milestones and deliverables acceptable to our customer
in its discretion. During 2020, we continued the development of filters under the commercial agreement, resulting in completion
of the second milestone ahead of schedule in October. This milestone is significant as it recognizes achieving predetermined target
performance, packaging and initial reliability. Completion of the milestone also resulted in the second payment from this customer.
We have received a total of $4.5 million from this customer as of December 31, 2020. In accounting for this contract under ASC
606, we have determined the total contract consideration is to be recognized over time as the intellectual property is developed.
Early in 2020 we signed multiple new license
agreements with a major foundry focused on the China market, further enhancing our foundry program. These agreements include both
pre-paid royalties and royalty payments due upon shipment of parts for the licensed designs. In August of 2020 we demonstrated
that XBAR® based filters could be manufactured using standard SAW foundry processing, a much simpler and lower cost process
than is used for other BAW filter manufacturing. During the year we expanded our patent portfolio and ended the year with more
than 300 issued and pending patents, with more than 150 patents protecting our XBAR® technology. The combination of progress
developing XBAR®-based filters, advances in our foundry program and increasing shipments of our legacy designs resulted in
record annual revenues in 2020 and more than 50 million filters shipped using ISN® designs since our inception.
We plan to continue to pursue filter design
projects with existing and potential customers and other strategic partners. These types of arrangements offer complementary technology
and market intelligence. In addition, we will continue to help develop a fabless filter eco-system to support the growth in filter
volumes for our customers. We are also investigating the potential of licensing part or all of our ISN® software design suite
to potential customers in the RFFE industry. We will continue to develop XBAR® technology for both mobile and non-mobile applications,
including 5G, WiFi and Ultra-WideBand (UWB) applications, forming strategic partnerships with filter manufacturers and customers
to bring the technology to market as quickly as possible. We intend to retain ownership of our technology, software, designs and
related improvements. Our goal is to establish and leverage alliances with new and existing customers, who will help grow the market
for our designs by integrating them with their own proprietary technology and products, or by using our software products for their
own designs, thus combining their own particular strengths with ours to provide an extensive array of solutions.
Corporate Information
We were incorporated in Delaware in
January 2012. Our principal executive offices are located at 10900 Stonelake Boulevard, Suite 100, Office 02-130, Austin,
Texas 78759, and our telephone number at this location is (805) 308-9803. Our website address is www.resonant.com. The
information contained on, or that can be accessed through, our website is not a part of this prospectus.
RISK FACTORS
Investing in our
securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the
risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the section titled “Risk Factors” contained in our most
recent Annual Report on Form 10-K and in our most recent Quarterly Report on Form 10-Q, as well as any amendments thereto reflected
in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other
information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for
use in connection with a specific offering. The risks described in these documents are not the only ones we face, but those that
we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors
that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future
performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks
actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause
the trading price of our securities to decline, resulting in a loss of all or part of your investment. Please also read carefully
the section below titled “Forward-Looking Statements.”
FORWARD-LOOKING STATEMENTS
This prospectus
and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, or Securities Act, and Section 21E of the Securities Exchange Act of 1934, or Exchange Act. These statements
involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements
to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
These forward-looking statements include, but are not limited to, those concerning the following:
|
•
|
the impact of the coronavirus, or COVID-19, pandemic on our worldwide operations and those of our business partners;
|
|
•
|
our ability to fund our planned operations and implement our business plan;
|
|
•
|
the status of filter designs under development;
|
|
•
|
the prospects for licensing filter designs upon completion of development;
|
|
•
|
plans for other filter designs not currently in development;
|
|
•
|
potential customers for our designs;
|
|
•
|
the timing and amount of future royalty streams;
|
|
•
|
our plans regarding the use of proceeds from our equity financings and the expected duration of our capital resources;
|
|
•
|
our plans regarding future financings;
|
|
•
|
the impact of our designs on the mobile device market;
|
|
•
|
our intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business;
|
|
•
|
the timing and success of our plan of commercialization;
|
|
•
|
our dependence on growth in our customers’ businesses;
|
|
•
|
our customers’ success in marketing products incorporating our designs to their customers;
|
|
•
|
the effects of market conditions on our stock price and operating results;
|
|
•
|
our ability to maintain our competitive technological advantages against competitors in our industry and the related costs
associated with defending intellectual property infringement and other claims;
|
|
•
|
our ability to timely and effectively adapt our existing technology and have our technology solutions gain market acceptance;
|
|
•
|
our ability to introduce new filter designs and bring them to market in a timely manner;
|
|
•
|
our ability to maintain, protect and enhance our intellectual property;
|
|
•
|
our expectations concerning our relationships with our customers and other third parties and our customers’ relationships
with their manufacturers;
|
|
•
|
the attraction and retention of qualified employees and key personnel;
|
|
•
|
future acquisitions of or investments in complementary companies or technologies; and
|
|
•
|
our ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public
company and United States export regulations.
|
In some cases,
you can identify forward-looking statements by terms such as “anticipates,” “believes”, “could”,
“estimates”, “expects”, “intends”, “may”, “plans”, “potential”,
“predicts”, “projects”, “should”, “will”, “would” as well as similar
expressions. Forward-looking statements reflect our current views with respect to future events, are based on assumptions and are
subject to risks, uncertainties and other important factors. We discuss many of these risks, uncertainties and other important
factors in greater detail under the heading “Risk Factors” contained in the applicable prospectus supplement and any
related free writing prospectus, and in our most recent annual report on Form 10-K and in our most recent quarterly report
on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC. Given these risks, uncertainties
and other important factors, you should not place undue reliance on these forward-looking statements. Also, these forward-looking
statements represent our estimates and assumptions only as of the date such forward-looking statements are made. Except as required
by law, we assume no obligation to update any forward-looking statements publicly, or to reflect facts and circumstances after
the date of this prospectus. Before deciding to purchase our securities, you should carefully read both this prospectus, the applicable
prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as
described under the heading “Incorporation of Certain Information by Reference,” completely and with the understanding
that our actual future results may be materially different from what we expect.
THE SECURITIES WE MAY OFFER
We
may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of
such securities, either individually or in combination with other securities, with a total value of up to $100,000,000 from time
to time under this prospectus, together with the applicable prospectus supplement and any related free writing prospectus, at prices
and on terms to be determined by market conditions at the time of any offering. We may also offer common stock, preferred stock
and/or debt securities upon the exercise of warrants. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement
that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
|
·
|
designation or classification;
|
|
·
|
aggregate principal amount or aggregate offering price;
|
|
·
|
maturity, if applicable;
|
|
·
|
original issue discount, if any;
|
|
·
|
rates and times of payment of interest or dividends, if any;
|
|
·
|
redemption, conversion, exercise, exchange or sinking fund terms, if any;
|
|
·
|
restrictive covenants, if any;
|
|
·
|
voting or other rights, if any;
|
|
·
|
conversion prices, if any; and
|
|
·
|
important United States federal income tax considerations.
|
The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing
prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the
registration statement of which this prospectus is a part.
THIS PROSPECTUS
MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the
securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents
or underwriters, we will include in the applicable prospectus supplement:
|
·
|
the names of those agents or underwriters;
|
|
·
|
applicable fees, discounts and commissions to be paid to them;
|
|
·
|
details regarding over-allotment options, if any; and
|
|
·
|
the net proceeds to us.
|
Common Stock.
We may issue shares of our common stock from time to time. The holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. Subject to preferences that may be applicable to any outstanding
shares of preferred stock, the holders of common stock are entitled to receive ratably such dividends as may be declared by our
board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock
are entitled to share ratably in all assets legally available for distribution to stockholders remaining after payment of liabilities
and the liquidation preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights
and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable
to our common stock. When we issue shares of common stock under this prospectus, the shares will be fully paid and non-assessable.
The rights, preferences and privileges of the 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 which we may designate in the future. In this prospectus, we have summarized
certain general features of the common stock under “Description of Capital Stock—Common Stock.” We urge you,
however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided
to you) related to any common stock being offered.
Preferred Stock.
We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the
designations, powers, preferences and rights of the preferred stock, as well as the qualifications, limitations or restrictions
thereon, including dividend rights, conversion rights, preemptive rights, voting rights, terms of redemption or repurchase, liquidation
preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible
preferred stock will be convertible into our common stock or exchangeable for our other securities. Conversion may be mandatory
or at your option and would be at prescribed conversion rates. We will fix the designations, powers, preferences and rights of
the preferred stock of each series, as well as the qualifications, limitations or restrictions thereon, in the certificate of designation
relating to that series.
If we sell
any series of preferred stock under this prospectus, we will fix the designations, powers, preferences and rights of such
series of preferred stock, as well as the qualifications, limitations or restrictions thereon, 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 reports 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. In this prospectus, we have summarized certain general features of the preferred stock under
“Description of Capital Stock—Preferred Stock.” We urge you, however, to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred
stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of
preferred stock.
Debt Securities. We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated
debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument
governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for
our common stock or our other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed
conversion rates.
The debt securities
will be issued under an indenture that we will enter into with a national banking association or other eligible party, as trustee.
In this prospectus, we have summarized certain general features of the debt securities under “Description of Debt Securities.”
We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize
to be provided to you) related to the series of debt securities being offered, as well as the complete indenture and any supplemental
indentures that contain the terms of the debt securities. We have filed the form of indenture as an exhibit to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of
the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or
will be incorporated by reference from reports that we file with the SEC.
Warrants.
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue
warrants independently or in combination with common stock, preferred stock and/or debt securities. In this prospectus, we have
summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to read
the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related
to the particular series of warrants being offered, as well as the form of warrant and/or the warrant agreement and warrant certificate,
as applicable, that contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus
is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement
and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental
agreements, before the issuance of such warrants.
Warrants may be
issued under a warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant
agent, if any, in the applicable prospectus supplement relating to a particular series of warrants.
Units.
We may issue units consisting of common stock, preferred stock, debt securities and/or warrants to purchase any of such securities
in one or more series. In this prospectus, we have summarized certain general features of the units under “Description of
Units.” We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to
be provided to you related to the series of units being offered, as well as the unit agreements that contain the terms of the units.
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, the form of unit agreement and any supplemental agreements that describe
the terms of the series of units we are offering before the issuance of such units.
USE OF PROCEEDS
Except as described
in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we currently
intend to use the net proceeds from the sale of the securities offered hereby for working capital, capital expenditures and other
general corporate purposes, and for product development. We also may use a portion of the proceeds to finance potential acquisitions
and investments in companies or products that are complementary to our business, if and when suitable opportunities arise; however,
we currently have no commitments or agreements with respect to any such transactions. Pending these uses, we expect to invest the
net proceeds in short-term, investment-grade securities.
DESCRIPTION OF CAPITAL STOCK
Our authorized
capital stock consists of 100,000,000 shares of common stock, $0.001 par value, and 3,000,000 shares of preferred
stock, $0.001 par value. As of March 4, 2021, there were 60,119,538 shares of common stock outstanding and no shares of preferred
stock outstanding.
The following
summary description of our capital stock is based on the provisions of our certificate of incorporation and bylaws and the applicable
provisions of the Delaware General Corporation Law. This information is qualified entirely by reference to the applicable provisions
of our certificate of incorporation, bylaws and the Delaware General Corporation Law. For information on how to obtain copies of
our certificate of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus is a part,
see “Where You Can Find More Information.”
Common Stock
The holders of
our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders.
Our stockholders do not have cumulative voting rights in the election of directors. Subject to preferences that may be applicable
to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably only those dividends
as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders
of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences
of any outstanding shares of preferred stock. Holders of common stock have no preemptive or other subscription or conversion rights.
There are no redemption or sinking fund provisions applicable to our common stock. Shares of our common stock outstanding, and
to be issued, are, and will be, fully paid and non-assessable. Additional shares of authorized common stock may be issued, as authorized
by our board of directors from time to time, without stockholder approval, except as may be required by applicable stock exchange
requirements.
Preferred Stock
Pursuant to our
certificate of incorporation, our board of directors has the authority, without further action by the stockholders (unless such
stockholder action is required by applicable law or the rules of The Nasdaq Stock Market), to designate and issue up to 3,000,000 shares
of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series,
to fix the designations, powers, preferences and rights of the shares of each wholly unissued series, and any qualifications, limitations
or restrictions thereon, and to increase or decrease the number of shares of any such series, but not below the number of shares
of such series then outstanding. Shares of our preferred stock, if issued, will be fully paid and non-assessable.
We will fix the
designations, powers, preferences and rights of the preferred stock of each series, as well as the qualifications, limitations
or restrictions thereon, 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 reports 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 that series of preferred stock. This description will include:
|
·
|
the title and stated value;
|
|
·
|
the number of shares we are offering;
|
|
·
|
the liquidation preference per share;
|
|
·
|
the dividend rate, period and payment date and method of calculation for dividends;
|
|
·
|
whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
|
|
·
|
the procedures for any auction and remarketing, if any;
|
|
·
|
the provisions for a sinking fund, if any;
|
|
·
|
the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption
and repurchase rights;
|
|
·
|
any listing of the preferred stock on any securities exchange or market;
|
|
·
|
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;
|
|
·
|
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;
|
|
·
|
voting rights, if any, of the preferred stock;
|
|
·
|
preemptive rights, if any;
|
|
·
|
restrictions on transfer, sale or other assignment, if any;
|
|
·
|
whether interests in the preferred stock will be represented by depositary shares;
|
|
·
|
a discussion of any material United States federal income tax considerations applicable to the preferred stock;
|
|
·
|
the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
|
|
·
|
any limitations on the 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
|
|
·
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
|
The General Corporation
Law of the State of Delaware, or DGCL, the state of our incorporation, provides that the holders of preferred stock will have the
right to vote separately as a class (or, in some cases, as a series) on an amendment to our certificate of incorporation if the
amendment would change the par value or, unless the certificate of incorporation provided otherwise, the number of authorized shares
of the class or change the powers, preferences or special rights of the class or series so as to adversely affect the class or
series, as the case may be. This right is in addition to any voting rights that may be 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
may have the effect of decreasing the market price of our common stock.
Anti-takeover
Effects of Provisions of Charter Documents and Delaware Law
Charter Documents.
Our certificate of incorporation and bylaws contain provisions that could discourage potential takeover attempts and make it more
difficult for stockholders to change management, which could adversely affect the marketplace of our common stock.
Our certificate
of incorporation limits the personal liability for monetary damages for breach of fiduciary duty of our directors to Resonant and
our stockholders to the fullest extent permitted by the Delaware General Corporation Law. The inclusion of this provision in our
certificate of incorporation may reduce the likelihood of derivative litigation against directors and may discourage or deter stockholders
or management from bringing a lawsuit against directors for breach of their fiduciary duty.
Our certificate
of incorporation provides that all stockholder action must be effected at a meeting of stockholders and not by a consent in writing.
In addition, our certificate of incorporation and bylaws provide that, except as otherwise expressly provided by the terms of any
series of preferred stock permitting the holders of such series of preferred stock to call a special meeting of the holders of
such series, special meetings of stockholders of Resonant may be called only by the board of directors, the chairperson of the
board of directors, the chief executive officer or the president (in the absence of a chief executive officer). Finally, our bylaws
establish procedures, including advance notice procedures, with regard to the nomination of candidates for election as directors
and stockholder proposals.
Delaware Law.
We are subject to Section 203 of DGCL, which prohibits a Delaware corporation from engaging in any business combination with
any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with
the following exceptions:
|
·
|
before such date, the board of directors of the corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested holder;
|
|
·
|
upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes
of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares
owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
|
·
|
on or after such date, the business combination is approved by the board of directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock that is not owned by the interested stockholder.
|
In
general, Section 203 defines business combination to include the following:
|
·
|
any merger or consolidation involving the corporation and the interested stockholder;
|
|
·
|
any sale, lease, transfer, pledge or other disposition of 10% or more of the assets of the corporation to or with the interested
stockholder;
|
|
·
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of
the corporation to the interested stockholder;
|
|
·
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class
or series of the corporation beneficially owned by the interested stockholder; or
|
|
·
|
the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits
by or through the corporation.
|
In general, Section 203
defines interested stockholder as an entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation
or any entity or person affiliated with or controlling or controlled by such entity or person.
Although Section
203 permits us to elect not to be governed by its provisions, we have not made this election. As a result of the application of
Section 203, potential acquirers of Resonant may be discouraged from attempting to effect an acquisition transaction with us, thereby
possibly depriving holders of our securities of certain opportunities to sell or otherwise dispose of such securities at above-market
prices pursuant to such transactions.
Transfer Agent and Registrar
The transfer agent
and registrar for our common stock is Computershare Limited, P.O. Box 30170, College Station, TX 77842, and its telephone number
is (800) 368-5948. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and
described in the prospectus supplement for that series.
Listing on The NASDAQ Capital Market
Our common stock
is listed on The NASDAQ Capital Market under the symbol “RESN.”
DESCRIPTION OF DEBT SECURITIES
We may issue
debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt.
While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus
supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below.
Unless the context requires otherwise, whenever we refer to the indentures, we also are referring to any supplemental
indentures that specify the terms of a particular series of debt securities.
We will issue
the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be
qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as
an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this
prospectus is a part or will be incorporated by reference from reports that we file with the SEC. We use the term “debenture
trustee” to refer to the trustee under the indenture.
The following
summaries of material provisions of the debt securities and the indentures are subject to, and qualified in their entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable
prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus,
as well as the complete indentures that contains the terms of the debt securities.
General
The indenture
does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain
any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations
and financial condition or transactions involving us.
We may issue the
debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below
their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and
other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe
in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
|
·
|
the title of the series of debt securities;
|
|
·
|
any limit upon the aggregate principal amount that may be issued;
|
|
·
|
the maturity date or dates;
|
|
·
|
the form of the debt securities of the series;
|
|
·
|
the applicability of any guarantees;
|
|
·
|
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
|
|
·
|
whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and
the terms of any subordination;
|
|
·
|
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be determined;
|
|
·
|
the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will
begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
|
|
·
|
our right, if any, to defer payment of interest and the maximum length of any such deferral period;
|
|
·
|
if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may,
at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
|
|
·
|
the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities
and the currency or currency unit in which the debt securities are payable;
|
|
·
|
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
|
|
·
|
any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security
for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing
of debt securities of that series;
|
|
·
|
whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities;
the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other
individual securities; and the depositary for such global security or securities;
|
|
·
|
if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable,
or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
|
|
·
|
if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which
shall be payable upon declaration of acceleration of the maturity thereof;
|
|
·
|
additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others,
the consolidation, merger or sale covenant;
|
|
·
|
additions to or changes in the events of default with respect to the securities and any change in the right of the debenture
trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due
and payable;
|
|
·
|
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
|
|
·
|
additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
|
|
·
|
additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of
holders of debt securities issued under the indenture;
|
|
·
|
the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in
U.S. dollars;
|
|
·
|
whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and
conditions upon which the election may be made;
|
|
·
|
the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
|
|
·
|
any restrictions on transfer, sale or assignment of the debt securities of the series; and
|
|
·
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions
or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
|
Conversion or Exchange Rights
We will set forth
in the prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common
stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide
otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any
covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an
entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours)
must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default Under the Indenture
Unless we provide
otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
|
·
|
if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been
extended or deferred;
|
|
·
|
if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable and the time for payment has
not been extended or delayed;
|
|
·
|
if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from
the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable
series; and
|
|
·
|
if specified events of bankruptcy, insolvency or reorganization occur.
|
If an event of
default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the
last bullet point above, the debenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series, by notice to us in writing, and to the debenture trustee if notice is given by such holders, may
declare the unpaid principal of, premium, if any and accrued interest, if any, due and payable immediately. If an event of default
specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each
issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the debenture
trustee or any holder.
The holders of
a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default
with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure
the default or event of default.
Subject to the
terms of the indenture, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders
of the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders
of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred
on the debenture trustee, with respect to the debt securities of that series, provided that:
|
·
|
the direction so given by the holder is not in conflict with any law or the applicable indenture; and
|
|
·
|
subject to its duties under the Trust Indenture Act of 1939, the debenture trustee need not take any action that might involve
it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
|
A holder of the
debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee,
or to seek other remedies only if:
|
·
|
the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series;
|
|
·
|
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
|
|
·
|
the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request
and offer.
|
These limitations
do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any,
or interest on, the debt securities.
We will periodically
file statements with the debenture trustee regarding our compliance with specified covenants in the indentures.
Modification of Indenture; Waiver
We and the debenture
trustee may change an indenture without the consent of any holders with respect to specific matters:
|
·
|
to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
|
|
·
|
to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;”
|
|
·
|
to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
|
|
·
|
to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions
for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance,
of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right
or power conferred upon us in the indenture;
|
|
·
|
to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication and delivery of debt securities, as set forth in the indenture;
|
|
·
|
to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material
respect;
|
|
·
|
to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided
above under “Description of Debt Securities—General” to establish the form of any certifications required to
be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of
any series of debt securities;
|
|
·
|
to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
|
|
·
|
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture
Act of 1939.
|
In addition, under
the indenture, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that
is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities,
we and the debenture trustee may make the following changes only with the consent of each holder of any outstanding debt securities
affected:
|
·
|
extending the fixed maturity of the series of debt securities;
|
|
·
|
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable
upon the redemption of any debt securities; or
|
|
·
|
reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
|
Discharge
Each indenture
provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
|
·
|
register the transfer or exchange of debt securities of the series;
|
|
·
|
replace stolen, lost or mutilated debt securities of the series;
|
|
·
|
pay principal of and premium and interest on any debt securities of the series;
|
|
·
|
maintain paying agencies;
|
|
·
|
hold monies for payment in trust;
|
|
·
|
recover excess money held by the trustee;
|
|
·
|
compensate and indemnify the trustee; and
|
|
·
|
appoint any successor trustee.
|
In order to exercise
our rights to be discharged, we must deposit with the debenture trustee money or government obligations sufficient to pay all the
principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue
the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt
securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf
of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect
to that series. See “Legal Ownership of Securities” for a further description of the terms relating to any book-entry
securities.
At the option
of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable
prospectus supplement, the holder of any series of debt securities can exchange the debt securities for other debt securities of
the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the
terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders
of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that
the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but
we may require payment of any taxes or other governmental charges.
We will name in
the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that
we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to
redeem the debt securities of any series, we will not be required to:
|
·
|
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption
and ending at the close of business on the day of the mailing; or
|
|
·
|
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed
portion of any debt securities we are redeeming in part.
|
Information Concerning the Debenture
Trustee
The debenture
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture
trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the
request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and
liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise
indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment
date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We will pay principal
of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by
us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the debenture trustee in New York City as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All money we pay
to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
Unless we provide
otherwise in the applicable prospectus supplement, the indentures and the debt securities will be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
The following
description, together with the additional information we may include in any applicable prospectus supplement and free writing prospectus,
summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants
to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently
or in combination with common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we
have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will
apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable
prospectus supplement for a particular series of warrants may specify different or additional terms.
We will file
as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that
contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance
of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in
their entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant
certificate, as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series of warrants
that we may offer under this prospectus, as well as any related free writing prospectus, and the complete form of warrant
and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms
of the warrants.
General
We will describe
in the applicable prospectus supplement the terms of the series of warrants being offered, including:
|
·
|
the offering price and aggregate number of warrants offered;
|
|
·
|
the currency for which the warrants may be purchased;
|
|
·
|
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
|
|
·
|
in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
|
|
·
|
in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such
exercise;
|
|
·
|
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
|
|
·
|
the terms of any rights to redeem or call the warrants;
|
|
·
|
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
|
|
·
|
the dates on which the right to exercise the warrants will commence and expire;
|
|
·
|
the manner in which the warrant agreements and warrants may be modified;
|
|
·
|
a discussion of material or special U.S. federal income tax considerations, if any, of holding or exercising the warrants;
|
|
·
|
the terms of the securities issuable upon exercise of the warrants; and
|
|
·
|
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
|
Before exercising
their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
|
·
|
in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
|
|
·
|
in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise voting rights, if any.
|
Exercise of Warrants
Each warrant
will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus
supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants
may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement
relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will
become void.
Upon receipt of
payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office
of the warrant agent, if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as
practicable, issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants
represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued
for the remaining warrants.
Governing Law
Unless we provide
otherwise in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed in
accordance with the laws of the State of New York.
Enforceability of Rights by Holders
of Warrants
Each warrant agent,
if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue
of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement
or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us.
Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
No Outstanding Warrants
As of March 11,
2021, there were no outstanding warrants to purchase shares of our common stock.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses,
summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized
below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may
differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth
in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
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, the form of unit agreement that describes the terms of the series of units we are offering,
and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms
and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement
and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements
related to the particular series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental
agreements that contain the terms of the units.
General
We will describe
in the applicable prospectus supplement the terms of the series of units being offered, including:
|
·
|
the offering price and aggregate number of units offered;
|
|
·
|
the currency for which the units may be purchased;
|
|
·
|
if applicable, the designation and terms of the units and of the securities comprising the units, including whether and under
what circumstances those securities may be held or transferred separately;
|
|
·
|
a discussion of material or special U.S. federal income tax considerations, if any, of holding the units; and
|
|
·
|
any other specific terms, preferences, rights or limitations of or restrictions on the units.
|
The provisions
described in this section, as well as those described under “Description of Capital Stock,” “Description of Debt
Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt
security or warrant included in each unit, respectively.
Governing Law
Unless we provide
otherwise in the applicable prospectus supplement, the units and any unit agreements will be governed by and construed in accordance
with the laws of the State of New York.
Enforceability of Rights by Holders
of Units
Each unit agent,
if any, will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units.
A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including
any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit
may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights
as holder under any security included in the unit.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form
or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons
who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain
for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer
to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names,
as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors
in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities
in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by
one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other
financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are
referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person
in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered
in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the
depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes
along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As a result, investors
in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through
a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest
through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders,
of the securities.
Street Name Holders
We may terminate
a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their
own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank,
broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those
securities through an account he or she maintains at that institution.
For securities
held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we will make all payments on those securities to them. These
institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree
to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name
will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations,
as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street
name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or
has no choice because we are issuing the securities only in global form.
For example, once
we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder
is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but
does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event,
we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact
the indirect holders is up to the holders.
Special Considerations For Indirect
Holders
If you hold securities
through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your
own institution to find out:
|
·
|
how it handles securities payments and notices;
|
|
·
|
whether it imposes fees or charges;
|
|
·
|
how it would handle a request for the holders’ consent, if ever required;
|
|
·
|
whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted
in the future;
|
|
·
|
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to
act to protect their interests; and
|
|
·
|
if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
|
Global Securities
A global security
is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each security
issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary.
Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known
as DTC, will be the depositary for all securities issued in book-entry form.
A global security
may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security
Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner
and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution
that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented
by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus
supplement for a particular security indicates that the security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any
book-entry clearing system.
Special Considerations For Global
Securities
The rights of
an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder
of securities and instead deal only with the depositary that holds the global security.
If securities
are issued only in the form of a global security, an investor should be aware of the following:
|
·
|
an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for
his or her interest in the securities, except in the special situations we describe below;
|
|
·
|
an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above;
|
|
·
|
an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that
are required by law to own their securities in non-book-entry form;
|
|
·
|
an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
|
|
·
|
the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security;
|
|
·
|
we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of
ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;
|
|
·
|
the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security
within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
|
|
·
|
financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
|
There may be more
than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions
of any of those intermediaries.
Special Situations When a Global
Security Will Be Terminated
In a few
special situations described below, the global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in
street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their
interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of
holders and street name investors above.
Unless we provide
otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
|
·
|
if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as depositary within 90 days;
|
|
·
|
if we notify any applicable trustee that we wish to terminate that global security; or
|
|
·
|
if an event of default has occurred with regard to securities represented by that global security and has not been cured or
waived.
|
The prospectus
supplement may also list additional situations for terminating a global security that would apply only to the particular series
of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or
any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from time to
time pursuant to underwritten public offerings, “at the market” offerings, negotiated transactions, block trades or
a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to
one or more purchasers. We may distribute securities from time to time in one or more transactions:
|
·
|
at a fixed price or prices, which may be changed;
|
|
·
|
at market prices prevailing at the time of sale;
|
|
·
|
at prices related to such prevailing market prices; or
|
A prospectus supplement or supplements
(and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of
the securities, including, to the extent applicable:
|
·
|
the name or names of the underwriters, if any;
|
|
·
|
the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale;
|
|
·
|
any over-allotment options under which underwriters may purchase additional securities from us;
|
|
·
|
any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
|
|
·
|
any public offering price;
|
|
·
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
|
·
|
any securities exchange or market on which the securities may be listed.
|
Only underwriters named in the prospectus
supplement will be underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale,
they will acquire the securities for their own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public
offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the
underwriter, the nature of any such relationship.
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe
any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters
to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
We may provide agents and underwriters
with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to
payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than
common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment,
stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering
or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option
or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that are qualified market
makers on The NASDAQ Capital Market may engage in passive market making transactions in the common stock on The NASDAQ Capital
Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess
of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid,
however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if
commenced, may be discontinued at any time.
We may engage in “at-the-market-offerings”
into an existing trading market within the meaning of Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative
transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named
in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities
to a financial institution or other third party that in turn may sell the securities short using this prospectus and the applicable
prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in
our securities or in connection with a concurrent offering of other securities.
The specific terms of any lock-up provisions
in respect of any given offering will be described in the applicable prospectus supplement.
In compliance with the guidelines of the
Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member
or independent broker dealer may not exceed 8% of the aggregate proceeds of the offering.
The underwriters, dealers and agents may
engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
The validity of the securities being offered
hereby will be passed upon for us by Stubbs Alderton & Markiles, LLP, Sherman Oaks, California.
EXPERTS
The consolidated financial statements
of Resonant Inc. as of December 31, 2020, and for the year ended December 31, 2020, have been incorporated by reference herein
in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
The audit report covering the December 31, 2020 consolidated financial statements contains an explanatory paragraph that states that Resonant
Inc. has suffered recurring losses from operations, and expects to continue to incur significant losses, that raise substantial doubt
about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result
from the outcome of that uncertainty.
The consolidated balance sheet of Resonant
Inc. as of December 31, 2019, and the related consolidated statements of comprehensive loss, stockholders’ equity and cash
flows of Resonant Inc. for the year ended December 31, 2019, incorporated by reference in this prospectus have been so incorporated
in reliance on the report of Crowe LLP, an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus
is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information
set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or
other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement
or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly
and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC’s website at www.sec.gov. Our Internet address is www.resonant.com. You may also read and copy any document
we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the Public Reference Room.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows
us to incorporate by reference the information we file with it, which means that we can disclose important information to you by
referring you to another document that we have filed separately with the SEC. You should read the information incorporated by reference
because it is an important part of this prospectus. We incorporate by reference the following information or documents that we
have filed with the SEC (Commission File No. 001-36467):
Any information
in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this
prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces
such information.
We also incorporate
by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, including all such reports filed after the date of the initial registration statement and prior to effectiveness
of the registration statement, until we file a post-effective amendment that indicates the termination of the offering of the securities
made by this prospectus. Information in such future filings updates and supplements the information provided in this prospectus.
Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document
we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements
in the later filed document modify or replace such earlier statements.
We will furnish
without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of the documents
that have been incorporated by reference into this prospectus, including exhibits to these documents. You should direct any requests
for copies to:
Resonant Inc.
10900 Stonelake Boulevard
Suite 100, Office 02-130
Austin, Texas 78759
Attn: Investor Relations
Telephone: (805) 308-9803
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, Dated March 12, 2021
PROSPECTUS SUPPLEMENT
$50,000,000
Common Stock
_________________________
We entered into an At-the-Market Equity Offering Sales Agreement
dated August 14, 2020, or the Sales Agreement, with Stifel, Nicolaus & Company, Incorporated, or Stifel, relating to shares
of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms of the
Sales Agreement, pursuant to this prospectus supplement and the accompanying prospectus, we may offer and sell shares of our common
stock, having an aggregate offering price of up to $50.0 million from time to time on or after the date of this prospectus supplement
through Stifel as our sales agent.
We previously filed with the Securities
and Exchange Commission, or the SEC, a prospectus supplement dated August 14, 2020 and accompanying prospectus dated November 29,
2018, which were previously made part of the registration statements on Form S-3 (File No. 333-228353 and File No. 333-246336)
that we filed with the SEC, to offer and sell from time to time pursuant to the Sales Agreement shares of our common stock having
an aggregate offering price of up to $25.0 million. The shares of common stock offered by this prospectus supplement and the accompanying
prospectus for sale pursuant to the Sales Agreement are in addition to the shares of common stock that may be offered for sale
under the Sales Agreement pursuant to the prospectus supplement dated August 14, 2020 and its accompanying prospectus. As of March
11, 2021, we have sold a total of 5,383,601 shares of our common stock for gross proceeds of $15,643,341 pursuant to the prospectus
supplement dated August 14, 2020 and its accompanying prospectus, which leaves a total maximum aggregate offering price of $59,356,659
of our common stock available for sale under the Sales Agreement pursuant to both this prospectus supplement and the accompanying
prospectus and the prospectus supplement dated August 14, 2020 and its accompanying prospectus.
This prospectus supplement should be
read in conjunction with the accompanying prospectus, and is qualified by reference thereto, except to the extent that the information
herein amends or supersedes the information contained in the accompanying prospectus. This prospectus supplement is not complete
without, and may only be delivered or utilized in connection with, the accompanying prospectus, and any future amendments or supplements
thereto.
Our common stock is listed on the Nasdaq
Capital Market under the symbol “RESN.” The last reported sale price of our common stock on the Nasdaq Capital Market
on March 4, 2021 was $4.13 per share.
Sales of our common stock, if any,
under this prospectus supplement and the accompanying prospectus may be made in sales deemed to be an “at the market offering”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Stifel is not required
to sell any specific number or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts
consistent with its normal trading and sales practices on mutually agreed terms between Stifel and us. There is no arrangement
for funds to be received in any escrow, trust or similar arrangement.
The compensation to Stifel for sales
of common stock sold pursuant to the Sales Agreement will be an amount equal to 3.0% of the gross sales price per share of common
stock sold under the Sales Agreement. In connection with the sale of the common stock on our behalf, Stifel will be deemed to be
an “underwriter” within the meaning of the Securities Act and the compensation of Stifel will be deemed to be underwriting
commissions or discounts. We have also agreed to provide indemnification and contribution to Stifel with respect to certain liabilities,
including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act.
_________________________
Investing in our securities involves
a high degree of risk. You should read this prospectus supplement, the accompanying prospectus and the documents incorporated by
reference herein before you make your investment decision. See “Risk Factors” beginning on page S-7 of this prospectus
supplement and in the documents incorporated by reference herein, including our most recent Annual Report on Form 10-K and
Quarterly Report on Form 10-Q, to read
about risks that you should consider before purchasing shares of our common stock.
_________________________
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy
of this prospectus supplement or the accompanying prospectus. Any representation to the contrary is a criminal offense.
_________________________
Stifel
The date
of this prospectus supplement is , 2021.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus supplement is a supplement
to the accompanying prospectus that is also a part of this document. This prospectus supplement and the accompanying prospectus
are part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. Under this “shelf” registration process, we may from time to time sell
any combination of securities described in the accompanying prospectus in one or more offerings up to a total of $100.0 million.
This prospectus supplement and the accompanying
prospectus do not constitute an offer to sell or a solicitation of an offer to buy the shares offered hereby in any jurisdiction
where, or to any person to whom, it is unlawful to make such offer or solicitation.
We
provide information to you about this offering of our common stock in two separate documents that are bound together: (1) this
prospectus supplement, which describes the specific details regarding this offering; and (2) the accompanying base prospectus,
which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus
supplement,” we are referring to both documents combined. If information in this prospectus supplement is inconsistent with
the accompanying base prospectus, you should rely on this prospectus supplement. To the extent there is a conflict between the
information contained in this prospectus supplement, on the one hand, and the information contained in any document incorporated
by reference in this prospectus supplement, on the other hand, you should rely on the information in this prospectus supplement.
If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example,
a document incorporated by reference in this prospectus supplement—the statement in the document having the later date modifies
or supersedes the earlier statement.
You should rely only on the information
contained in or incorporated by reference into this prospectus supplement and the accompanying prospectus or any free writing prospectus.
We have not, and the sales agent has not, authorized any other person to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. The information contained in or incorporated by reference
into this prospectus supplement and the accompanying prospectus is current as of the date such information is presented, regardless
of the time of delivery of this prospectus supplement or of any sale of the shares. Our business, financial condition, results
of operations and prospects may have changed since those dates. It is important for you to read and consider all information contained
in this prospectus supplement and the accompanying prospectus, including the documents incorporated by reference herein and therein,
in making your investment decision. You should also read and consider the information in the documents we have referred you to
in the sections entitled “Where You Can Find More Information” and “Incorporation of Certain Information By Reference”
below.
This prospectus
supplement and the information incorporated herein by reference include trademarks, services marks and trade names owned by us
or other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus supplement
or any related free writing prospectuses are the property of their respective owners.
Unless the context
otherwise requires, the terms “we,” “our,” “us,” “our company,” and “Resonant”
refer to Resonant Inc. and its subsidiaries.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights selected information
contained elsewhere or incorporated by reference in this prospectus supplement or the accompanying prospectus. Because it is a
summary, it does not contain all of the information that you should consider before investing in the shares. You should read this
entire prospectus supplement and the accompanying prospectus carefully, including the “Risk Factors,” and the financial
statements and other information incorporated by reference in this prospectus supplement and the accompanying prospectus.
Resonant Inc.
Resonant is a late-stage development company
that has created an innovative software, intellectual property, or IP, and services platform that has the ability to increase designer
efficiency, reduce the time to market and lower unit costs in the designs of filters for radio frequency, or RF, front-ends for
the mobile device, automotive, medical, internet-of-things and related industries. The RF front-end, or RFFE, is the circuitry
in a device responsible for analog signal processing and is located between the device’s antenna and its digital circuitry.
The software platform we continue to develop is based on fundamentally new technology that we call Infinite Synthesized Networks®,
or ISN®, to configure and connect resonators, the building blocks of RF filters. Filters are a critical component of the RF
front-end used to select desired radio frequency signals and reject unwanted signals. Our ISN® platform allows us to develop
unique, custom designs that address the increasing complexity of the RFFE due to increasing bandwidth requirements, such as by
using carrier aggregation (the combining of multiple frequencies into a single data stream to increase throughput through higher
data rates), or CA, by both reducing the size of the filter and improving performance. Our goal is to utilize our ISN® platform
to support our customers in reducing their time to develop complex filter and module designs, to access new classes of filter designs,
and to do it more cost effectively. Additionally, our ISN® platform has allowed us to expand our customer focus beyond just
filter manufacturers by enabling a new class of customer - fabless filter manufacturers. These companies do not have their own
internal filter fabrication facility, or fab, and typically already would be supplying other products in the RFFE to the original
equipment manufacturers (OEMs), and, as a result do not require a protracted new vendor qualification process in order to supply
parts. Through our existing customer relationships, we are able to leverage our ISN® tools to deliver cutting edge filter designs
to these fabless filter manufacturers.
We are commercializing our technology
through the creation of filter designs that address the problems in the high growth RFFE industry created by the growing number
of frequency bands in mobile and other RFFE enabled devices. The worldwide adoption of Long Term Evolution, or LTE, as the global
standard, the transition to 5G, and the use of mobile devices to access the Internet, has resulted in massive proliferation of
frequency bands which, when combined with CA for higher data rates and multiple input multiple output, or MIMO, has resulted in
an ever-increasing number and complexity of filters in the RFFE. We have developed and continue to expand a series of single-band
designs for frequency bands presently dominated by larger and more expensive bulk acoustic wave, or BAW, filters. We are also developing
multiplexer filter designs for two or more bands to address the CA requirements of our customers. We are using our ISN® platform
to efficiently integrate these designs into RF modules for our module customers. Currently, we are leveraging ISN® to develop
these designs targeted for either the Surface Acoustic Wave (SAW) or Temperature Compensated, Surface Acoustic Wave (TC-SAW) manufacturing
processes. In 2018 we further extended ISN® for BAW designs, which has resulted in our invention of a resonator structure based
on a combination of interdigital transducer (IDT) and piezoelectric membrane, which we call XBAR®, which exhibits performance
parameters suitable for 5G and WiFi applications - high frequency operation, large bandwidth and high power reliability. Our success
with XBAR® is dependent on our ability to develop high frequency filters utilizing these resonator structures that are successfully
adopted by our targeted customers, which will be determined by our ability to show improved performance over competing products
or significantly reduce the size and cost of their products.
We believe licensing our designs, either
as prepaid royalties or royalties paid as products ship, is the most direct and effective means of validating our ISN® platform
and IP to address this rapidly growing market. Our target customers make part or all of the RFFE. We intend to retain ownership
of our designs, and we expect to be compensated through license fees and royalties based on sales of RFFE filters that incorporate
our designs and leverage our ISN® platform.
Our customer engagement process
typically begins with the execution of a Joint Development Agreement, or JDA, and License Agreement, or LA, for specific
bands. Depending on the complexity of the design, we estimate that initial samples of products to OEMs, will occur typically
within nine to thirty-six months following execution of a license agreement. We classify these new designs as either ISN®
Ready (9-12 months), ISN® Pilot (12-18 months), ISN® Advanced (18-36 months) or ISN® Development (Custom).
Following these development cycles, designs are manufactured, qualified by our customers and sampled to OEM customers. Our
customers can take from three to six months to qualify a design and then the OEMs can take an additional three to six months,
or longer, to qualify a design as fit for use, reliable and ready for mass production. The point at which an OEM begins
taking product from our customers in mass production is typically when royalty revenues would begin. Our customer agreements
typically provide for upfront design fees and royalty payments for each unit sold using our filter designs and typically last
for a minimum of two years, but may be renewed for a longer period. More recently our agreements have included pre-paid
royalties, which can be fully paid-up for a design, or a partial pre-pay with subsequent royalties when the part begins
shipping.
In 2017, in order to further facilitate
our fabless filter program, and to provide manufacturing stability across the supply chain, we embarked on the creation of our
Foundry Program. Foundries joining Resonant’s program first complete a foundry evaluation process to ensure alignment with
our customers for filter performance, manufacturing quality and capacity, and business practices. Once the evaluation is completed,
the foundry runs a characterization lot, used to create a foundry process design kit, after which we are ready to start designs
for manufacture in the foundry. Packaging/Back-end vendors can also join the program by completing a back-end evaluation process
to match their capabilities with foundry partners and our customers. Through this program we enable a secure supply chain for all
our customers.
In 2019, we began development of Filter
IP Standard Library designs to enable faster time to market for our customers. Further, the first Filter IP Library design was
incorporated into Cadence Design Systems, Inc.'s AWR design suite, allowing module designers access to Resonant filter designs.
At Mobile World Congress we showed the first 5G filter based upon XBAR® technology - an n79 filter. Subsequently, we accepted
a $7.0 million investment and signed a commercial agreement for the development and license of filters for four bands based on
XBAR® technology, with the industry's largest provider of filters for the RFFE. The commercial agreement provides for our receipt
of up to an aggregate of $9.0 million of contract consideration in the form of "pre-paid royalties" for the licensed
designs and certain other intellectual property developed in the collaboration, payable in installments over a multi-year development
period, with each installment conditioned upon our achievement of certain milestones and deliverables acceptable to our customer
in its discretion. During 2020, we continued the development of filters under the commercial agreement, resulting in completion
of the second milestone ahead of schedule in October. This milestone is significant as it recognizes achieving predetermined target
performance, packaging and initial reliability. Completion of the milestone also resulted in the second payment from this customer.
We have received a total of $4.5 million from this customer as of December 31, 2020. In accounting for this contract under ASC
606, we have determined the total contract consideration is to be recognized over time as the intellectual property is developed.
Early in 2020 we signed multiple new license
agreements with a major foundry focused on the China market, further enhancing our foundry program. These agreements include both
pre-paid royalties and royalty payments due upon shipment of parts for the licensed designs. In August of 2020 we demonstrated
that XBAR® based filters could be manufactured using standard SAW foundry processing, a much simpler and lower cost process
than is used for other BAW filter manufacturing. During the year we expanded our patent portfolio and ended the year with more
than 300 issued and pending patents, with more than 150 patents protecting our XBAR® technology. The combination of progress
developing XBAR®-based filters, advances in our foundry program and increasing shipments of our legacy designs resulted in
record annual revenues in 2020 and more than 50 million filters shipped using ISN® designs since our inception.
We plan to continue to pursue filter
design projects with existing and potential customers and other strategic partners. These types of arrangements offer
complementary technology and market intelligence. In addition, we will continue to help develop a fabless filter eco-system
to support the growth in filter volumes for our customers. We are also investigating the potential of licensing part or all
of our ISN® software design suite to potential customers in the RFFE industry. We will continue to develop XBAR®
technology for both mobile and non-mobile applications, including 5G, WiFi and Ultra-WideBand (UWB) applications, forming
strategic partnerships with filter manufacturers and customers to bring the technology to market as quickly as possible. We
intend to retain ownership of our technology, software, designs and related improvements. Our goal is to establish and
leverage alliances with new and existing customers, who will help grow the market for our designs by integrating them with
their own proprietary technology and products, or by using our software products for their own designs, thus combining their
own particular strengths with ours to provide an extensive array of solutions.
Corporate Information
We were incorporated in Delaware in January
2012. Our principal executive offices are located at 10900 Stonelake Boulevard, Suite 100, Office 02-130, Austin, Texas 78759,
and our telephone number at this location is (805) 308-9803. Our website address is www.resonant.com. The information contained
on, or that can be accessed through, our website is not a part of this prospectus supplement or the accompanying prospectus.
THE OFFERING
Issuer
|
|
Resonant Inc.
|
|
|
|
Common stock offered by us
|
|
Shares of our common stock having a total maximum aggregate offering price of up to $50.0 million.
|
|
|
|
Common stock to be outstanding
|
|
|
after the offering
|
|
Up to 72,196,832 shares, assuming sales at a price of $4.14 per share, which was the closing price on the Nasdaq Capital Market on March 4, 2021. The actual number of shares issued will vary depending on the sales price under this offering.
|
|
|
|
Manner of offering
|
|
“At-the-market” offering that may be made from time to time, if at all, through our sales agent, Stifel. See “Plan of Distribution” on page S-12.
|
|
|
|
Use of Proceeds
|
|
We intend to use the net proceeds from this offering for working capital and other general corporate purposes. See “Use of Proceeds” on page S-10.
|
|
|
|
Risk Factors
|
|
See “Risk Factors” beginning on page S-7 of this prospectus supplement and page 6 of the accompanying prospectus, as well as those risk factors that are incorporated by reference in this prospectus supplement and the accompanying prospectus, for a discussion of factors you should carefully consider before deciding to invest in shares of our common stock.
|
|
|
|
Nasdaq Capital Market symbol
|
|
RESN
|
The number of shares of our common stock
to be outstanding after this offering is based on 60,119,538 shares of our common stock outstanding as of March 4, 2021 and excludes:
|
·
|
1,063,541 shares of our common stock issuable upon exercise of outstanding options
as of March 4, 2021 granted under our equity incentive plans at a weighted average exercise price of $4.57 per share;
|
|
·
|
4,289,227 shares of our common stock issuable upon the release of outstanding
restricted stock units as of March 4, 2021 granted under our equity incentive plans with a weighted average grant date fair value
of $3.59 per share;
|
|
·
|
4,340,525 shares of our common stock available as of March 4, 2021 for issuance or future grant pursuant to our equity incentive
plan; and
|
|
·
|
shares of our common stock having a total maximum aggregate offering price of up to $9,356,659
that may be sold under the Sales Agreement pursuant to the prospectus supplement dated August 14, 2020 and its accompanying prospectus.
|
RISK FACTORS
An investment in our common stock is
subject to numerous risks as discussed more fully below and under the caption “Risk Factors” in the accompanying prospectus,
our most recent Annual Report on Form 10-K and our most recent Quarterly Report on Form 10-Q, both of which we incorporate by reference
herein, and other information that we file from time to time with the SEC after the date of this prospectus supplement and which
we incorporate by reference herein. Any of these risks could adversely affect our financial condition and results of operations
or our ability to execute our business strategy. You should read and consider carefully all the information set forth and incorporated
by reference in this prospectus supplement and the accompanying prospectus before deciding whether to invest in our common stock.
The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently consider immaterial may also affect our business operations. See “Incorporation
of Certain Documents By Reference.”
Risks Related to this Offering
Resales of our common stock in the public market during
this offering by our stockholders may cause the market price of our common stock to fall.
We may issue common stock from time to time
in connection with this offering. This issuance from time to time of these new shares of our common stock, or our ability to issue
these shares of common stock in this offering, could result in resales of our common stock by our current stockholders concerned
about the potential dilution of their holdings. In turn, these resales could have the effect of depressing the market price for
our common stock.
Purchasers will experience immediate dilution in the book
value per share of the common stock purchased in the offering.
The expected offering price of our common
stock will be substantially higher than the net tangible book value per share of our outstanding common stock. As a result, based
on our capitalization as of December 31, 2020, investors purchasing shares in this offering would incur immediate dilution of $3.17
per share of common stock purchased, based on an assumed public offering price of our common stock of $4.13 per share, the last
reported sale price of the common stock on March 4, 2021. See “Dilution” in this prospectus supplement for a more detailed
discussion of the dilution you will incur if you purchase shares in this offering.
Our management will have broad discretion over the use
of the proceeds we receive in this offering and might not apply the proceeds in ways that increase the value of your investment.
Our management will have broad discretion
to use our net proceeds from this offering and you will be relying on the judgment of our management regarding the application
of these proceeds. Our management might not apply our net proceeds of this offering in ways that increase the value of your investment.
You will not have the opportunity to influence our decisions on how to use our net proceeds from this offering.
If we raise additional capital in the future, your ownership
in us could be diluted.
Any issuance of equity we may undertake
in the future to raise additional capital could cause the price of our common stock to decline, or require us to issue shares at
a price that is lower than that paid by holders of our common stock in the past, which would result in those newly issued shares
being dilutive. In addition, the price per share at which we sell additional shares of our common stock, or securities convertible
or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in
this offering. If we obtain funds through a credit facility or through the issuance of debt or preferred securities, these
securities would likely have rights senior to your rights as a common stockholder, which could impair the value of our common stock.
FORWARD-LOOKING STATEMENTS
This prospectus
supplement, the accompanying prospectus and the documents incorporated by reference contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, or Securities Act, and Section 21E of the Securities Exchange Act
of 1934, or Exchange Act. These statements involve known and unknown risks, uncertainties and other important factors that may
cause our actual results, performance or achievements to be materially different from any future results, performances or achievements
expressed or implied by the forward-looking statements. These forward-looking statements include, but are not limited to, those
concerning the following:
|
•
|
the intended use of proceeds under this prospectus supplement and the prospectus;
|
|
•
|
the impact of the coronavirus, or COVID-19, pandemic on our worldwide operations and those of our business partners;
|
|
•
|
our ability to fund our planned operations and implement our business plan;
|
|
•
|
the status of filter designs under development;
|
|
•
|
the prospects for licensing filter designs upon completion of development;
|
|
•
|
plans for other filter designs not currently in development;
|
|
•
|
potential customers for our designs;
|
|
•
|
the timing and amount of future royalty streams;
|
|
•
|
our plans regarding the use of proceeds from our equity financings and the expected duration of our capital resources;
|
|
•
|
our plans regarding future financings;
|
|
•
|
the impact of our designs on the mobile device market;
|
|
•
|
our intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business;
|
|
•
|
the timing and success of our plan of commercialization;
|
|
•
|
our dependence on growth in our customers’ businesses;
|
|
•
|
our customers’ success in marketing products incorporating our designs to their customers;
|
|
•
|
the effects of market conditions on our stock price and operating results;
|
|
•
|
our ability to maintain our competitive technological advantages against competitors in our industry and the related costs
associated with defending intellectual property infringement and other claims;
|
|
•
|
our ability to timely and effectively adapt our existing technology and have our technology solutions gain market acceptance;
|
|
•
|
our ability to introduce new filter designs and bring them to market in a timely manner;
|
|
•
|
our ability to maintain, protect and enhance our intellectual property;
|
|
•
|
our expectations concerning our relationships with our customers and other third parties and our customers’ relationships
with their manufacturers;
|
|
•
|
the attraction and retention of qualified employees and key personnel;
|
|
•
|
future acquisitions of or investments in complementary companies or technologies; and
|
|
•
|
our ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public
company and United States export regulations.
|
In some cases,
you can identify forward-looking statements by terms such as “anticipates,” “believes”, “could”,
“estimates”, “expects”, “intends”, “may”, “plans”, “potential”,
“predicts”, “projects”, “should”, “will”, “would” as well as similar
expressions. Forward-looking statements reflect our current views with respect to future events, are based on assumptions and are
subject to risks, uncertainties and other important factors. We discuss many of these risks, uncertainties and other important
factors in greater detail under the heading “Risk Factors” contained in this prospectus supplement and any related
free writing prospectus, and in our most recent annual report on Form 10-K and in our most recent quarterly report on Form 10-Q,
as well as any amendments thereto reflected in subsequent filings with the SEC. Given these risks, uncertainties and other important
factors, you should not place undue reliance on these forward-looking statements. Also, these forward-looking statements represent
our estimates and assumptions only as of the date such forward-looking statements are made. Except as required by law, we assume
no obligation to update any forward-looking statements publicly, or to reflect facts and circumstances after the date of this prospectus
supplement. Before deciding to purchase our securities, you should carefully read both this prospectus supplement, the accompanying
prospectus and any related free writing prospectus, together with the information incorporated herein by reference as described
under the heading “Incorporation of Certain Information by Reference,” completely and with the understanding that our
actual future results may be materially different from what we expect.
USE OF PROCEEDS
We intend to use
the net proceeds, if any, from the sale of common stock offered hereby for working capital and other general corporate purposes.
We have not determined the amounts we plan to spend on the areas listed above or the timing of these expenditures. As a result,
our management will have broad discretion to allocate the net proceeds of this offering. Pending the application of the net proceeds
for these purposes, we intend to invest the net proceeds in short-term, investment-grade securities.
DILUTION
The net tangible
book value of our common stock as of December 31, 2020 was approximately $19.8 million,
or approximately $0.34 per share. Net tangible book value per share is equal to the amount of our total tangible assets, less total
liabilities, divided by the number of shares of common stock outstanding. Dilution in net tangible book value per share represents
the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net tangible
book value per share of our common stock immediately afterwards.
After giving effect
to the sale by us of shares of our common stock in the total aggregate amount of $50.0 million at an assumed offering price
of $4.13 per share, the last reported sale price of our common stock on March 4, 2021 on the Nasdaq Capital Market, and after
deducting underwriting commissions and estimated offering expenses, our net tangible book value as of December 31,
2020 would have been approximately $68.1 million, or $0.96 per share. This represents an immediate increase in net tangible
book value of $0.62 per share to existing stockholders and an immediate dilution of $3.17 per share to new investors purchasing
shares of common stock in this offering. The following table illustrates this dilution:
Assumed offering price per share
|
|
|
|
|
$
|
4.13
|
Net tangible book value per share as of December 31, 2020
|
|
$
|
0.34
|
|
|
|
Increase per share attributable to new investors after giving effect to the offering
|
|
|
0.62
|
|
|
|
As adjusted net tangible book value per share after this offering
|
|
|
|
|
|
0.96
|
Dilution in net tangible book value per share to new investors
|
|
|
|
|
$
|
3.17
|
The table above
assumes for illustrative purposes only an aggregate of 12,106,538 shares of our common stock are sold at a price of $4.13 per share,
for aggregate gross proceeds of $50.0 million. The shares, if any, sold in this offering will be sold from time to time at various
prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price per share shown
in the table above, or $5.13 per share, assuming all of our common stock in the aggregate amount of $50.0 million is sold at that
price, would increase our adjusted net tangible book value per share after the offering to $0.99 per share and would increase the
dilution in net tangible book value per share to new investors in this offering to $4.14 per share, after deducting commissions
and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold
from the assumed offering price per share shown in the table above, or $3.13 per share, assuming all of our common stock in the
aggregate amount of $50.0 million is sold at that price, would increase our adjusted net tangible book value per share after the
offering to $0.91 per share and would decrease the dilution in net tangible book value per share to new investors in this offering
to $2.22 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied
for illustrative purposes only.
The calculations
above are based on 59,128,356 shares of our common stock outstanding as of December 31, 2020 and exclude the following:
|
·
|
1,140,975 shares of our common stock issuable upon exercise of outstanding options
as of December 31, 2020 granted under our equity incentive plans at a weighted average exercise price of $4.46 per share;
|
|
·
|
3,038,785 shares of our common stock issuable upon the release of outstanding
restricted stock units as of December 31, 2020 granted under our equity incentive plans with a weighted average grant date fair
value of $2.53 per share;
|
|
·
|
5,730,815 shares of our common stock available as of December 31, 2020 for issuance
or future grant pursuant to our equity incentive plan.
|
From January 1,
2021 through March 4, 2021, we issued an aggregate of 140,000 shares of our common stock as a result of settlement of RSUs.
As of March 11,
2021, a total maximum aggregate offering price of $9,356,659 of our common stock was available for sale under the Sales Agreement
pursuant to the prospectus supplement dated August 14, 2020 and its accompanying prospectus.
PLAN OF DISTRIBUTION
We have previously entered into an at-the-market
equity offering sales agreement, or the Sales Agreement, with Stifel, under which we may issue and sell shares of our common stock,
from time to time, through Stifel acting as sales agent. Pursuant to this prospectus supplement, we may sell shares of our common
stock having total aggregate gross proceeds of up to $50.0 million under the Sales Agreement. Stifel may sell the common stock
by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities
Act.
Each time we wish to issue and sell common
stock under the Sales Agreement, we will notify Stifel of the number of shares to be issued, the dates on which such sales are
anticipated to be made and any minimum price below which sales may not be made. Once we have so instructed Stifel, unless Stifel
declines to accept the terms of this notice, Stifel has agreed to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Stifel under the Sales
Agreement to sell our common stock are subject to a number of conditions that we must meet.
The settlement between us and Stifel is
generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our common stock
as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such
other means as we and Stifel may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Stifel a commission equal to
3.0% of the gross proceeds we receive from the sales of our common stock under the Sales Agreement. Because there is no minimum
offering amount required as a condition to close this offering, the actual total public offering size, commissions and proceeds
to us, if any, are not determinable at this time. In connection with the sale of the common stock on our behalf, Stifel will be
deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Stifel will be deemed
to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to Stifel with respect
to certain civil liabilities, including liabilities under the Securities Act. We have also agreed to reimburse Stifel for certain
expenses incurred in connection with the offering of our common stock pursuant to the sales agreement, up to a maximum of $50,000.
We estimate that our total expenses for the offering, excluding compensation payable to Stifel under the terms of the Sales Agreement,
will be approximately $200,000.
The offering of our common stock pursuant
to the Sales Agreement will terminate upon the earlier of (i) the sale of all of our common stock provided for in this prospectus
supplement or (ii) termination of the Sales Agreement as permitted therein. This summary of the material provisions of the Sales
Agreement does not purport to be a complete statement of its terms and conditions.
Stifel and its affiliates may in the future
provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services
they may in the future receive customary fees.
This prospectus supplement and the accompanying
prospectus in electronic format may be made available on a website maintained by Stifel and Stifel may distribute this prospectus
supplement and the accompanying prospectus electronically.
To the extent required by Regulation M,
Stifel will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus
supplement.
LEGAL MATTERS
The validity of the securities being offered
hereby will be passed upon for us by Stubbs Alderton & Markiles, LLP, Sherman Oaks, California. Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., Boston, Massachusetts, is acting as counsel for the placement agent in connection with certain legal matters
relating to the shares of common stock offered by this prospectus supplement.
EXPERTS
The consolidated financial statements
of Resonant Inc. as of December 31, 2020, and for the year ended December 31, 2020, have been incorporated by reference herein
in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
The audit report covering the December 31, 2020 consolidated financial statements contains an explanatory paragraph that states that Resonant
Inc. has suffered recurring losses from operations, and expects to continue to incur significant losses, that raise substantial doubt
about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result
from the outcome of that uncertainty.
The consolidated balance sheet of Resonant
Inc. as of December 31, 2019, and the related consolidated statements of comprehensive loss, stockholders’ equity and cash
flows of Resonant Inc. for the year ended December 31, 2019, incorporated by reference in this prospectus have been so incorporated
in reliance on the report of Crowe LLP, an independent registered public accounting firm, given on the authority of said firm
as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus
supplement and the accompanying prospectus are part of registration statements on Form S-3 we filed with the SEC under the Securities
Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus
supplement to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the
exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference
into this prospectus supplement for a copy of such contract, agreement or other document. Because we are subject to the information
and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information
with the SEC. Our Internet address is www.resonant.com. Our SEC filings are available to the public over the Internet at the SEC’s
website at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows
us to incorporate by reference the information we file with it, which means that we can disclose important information to you by
referring you to another document that we have filed separately with the SEC. You should read the information incorporated by reference
because it is an important part of this prospectus supplement. We incorporate by reference the following information or documents
that we have filed with the SEC (Commission File No. 001-36467):
Any information
in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this
prospectus supplement or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies
or replaces such information.
We also
incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) made with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all such reports filed after the date of this
prospectus supplement until the completion or termination of the offering of the securities made by this prospectus
supplement. Information in such future filings updates and supplements the information provided in this prospectus
supplement. Any statements in any such future filings will automatically be deemed to modify and supersede any information in
any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the
extent that statements in the later filed document modify or replace such earlier statements.
We will furnish
without charge to each person to whom a copy of this prospectus supplement is delivered, upon written or oral request, a copy of
the documents that have been incorporated by reference into this prospectus supplement, including exhibits to these documents.
You should direct any requests for copies to:
Resonant Inc.
10900 Stonelake Boulevard
Suite 100, Office 02-130
Austin, Texas 78759
Attn: Investor Relations
Telephone: (805) 308-9803
$50,000,000
Common Stock
PROSPECTUS SUPPLEMENT
, 2021
Stifel
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
ITEM 14.
|
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
|
The following table sets forth the estimated
costs and expenses, other than the underwriting discounts and commissions payable by the Registrant in connection with the offering
of the securities being registered. All amounts are estimates, except the SEC registration fee.
SEC registration fee
|
|
$
|
10,910
|
|
Accounting fees and expenses
|
|
|
*
|
|
Legal fees and expenses
|
|
|
*
|
|
Transfer Agent fees and expenses
|
|
|
*
|
|
Printing and related fees
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
|
|
|
|
|
* Estimated fees and expenses are not presently known. The foregoing
sets forth the general categories of fees and expenses (other than underwriting discounts and commissions) that we anticipate we
will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate fees and
expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus
supplement.
|
ITEM 15.
|
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
|
Section 145 of the Delaware General
Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against
expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement in connection with specified actions,
suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the
corporation or a derivative action), if they acted in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe
their conduct was unlawful.
A similar standard is applicable in the
case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) actually and
reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval before
there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted by a corporation’s Certificate of Incorporation,
Bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
As permitted by Section 145 of the Delaware
General Corporation Law, Section 8.1 of the Registrant’s Certificate of Incorporation, as amended, provides:
“To the fullest extent permitted by the
DGCL, as it presently exists or may hereafter be amended from time to time, a director of the
Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director. If the DGCL is amended
to authorize corporate action further eliminating or limiting the personal liability of directors, then the
liability of a director
of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.”
The Registrant’s Certificate of
Incorporation, as amended, and Bylaws, as amended, provide for indemnification of officers and directors to the fullest extent
permitted by Delaware law. In addition, the Registrant has, and intends in the future to enter into, agreements to provide indemnification
for directors and officers in addition to that provided for in the Bylaws.
The Registrant maintains insurance on behalf
of any person who is a director or officer against any loss arising from any claim asserted against any of them and expense incurred
by any of them in any capacity, subject to certain exclusions.
Exhibit
|
|
|
|
Incorporated
by Reference
|
|
Filed
|
Number
|
|
Exhibit
Description
|
|
Form
|
|
File
Number
|
|
Exhibit
|
|
Filing
Date
|
|
Herewith
|
1.1
|
|
Form of Underwriting
Agreement
|
|
|
|
|
|
|
|
|
|
(1)
|
1.2
|
|
At-The-Market
Equity Offering Sales Agreement, dated as of August 14, 2020, by and between Resonant Inc. and Stifel, Nicolaus & Company,
Incorporated.
|
|
8-K
|
|
001-36467
|
|
1.1
|
|
August
14, 2020
|
|
|
3.1.1
|
|
Amended
and Restated Certificate of Incorporation
|
|
8-K
|
|
001-36467
|
|
3.1
|
|
June
5, 2014
|
|
|
3.1.2
|
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation
|
|
8-K
|
|
001-36467
|
|
3.1
|
|
June
12, 2019
|
|
|
3.2
|
|
Amended
and Restated Bylaws
|
|
8-K
|
|
001-36467
|
|
3.2
|
|
June
5, 2014
|
|
|
4.1
|
|
Specimen
of common stock certificate
|
|
S-1/A
|
|
333-193552
|
|
4.1
|
|
April
11, 2014
|
|
|
4.2
|
|
Form
of Indenture between the Registrant and one or more trustees to be named
|
|
|
|
|
|
|
|
|
|
X
|
4.3
|
|
Specimen
preferred stock certificate
|
|
|
|
|
|
|
|
|
|
(1)
|
4.4
|
|
Form
of Certificate of Designation of Preferred Stock
|
|
|
|
|
|
|
|
|
|
(1)
|
4.5
|
|
Form
of Debt Securities
|
|
|
|
|
|
|
|
|
|
(1)
|
4.6
|
|
Form
of Common Stock Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
|
|
|
(1)
|
4.7
|
|
Form
of Preferred Stock Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
|
|
|
(1)
|
4.8
|
|
Form
of Debt Securities Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
|
|
|
(1)
|
4.9
|
|
Form
of Unit Agreement and Unit Certificate
|
|
|
|
|
|
|
|
|
|
(1)
|
5.1
|
|
Opinion
of Stubbs Alderton & Markiles, LLP
|
|
|
|
|
|
|
|
|
|
X
|
23.1
|
|
Consent
of Crowe LLP
|
|
|
|
|
|
|
|
|
|
X
|
23.2
|
|
Consent
of KPMG LLP
|
|
|
|
|
|
|
|
|
|
X
|
23.3
|
|
Consent
of Stubbs Alderton & Markiles, LLP (included in Exhibit 5.1)
|
|
|
|
|
|
|
|
|
|
X
|
24.1
|
|
Power
of Attorney (included on signature page)
|
|
|
|
|
|
|
|
|
|
X
|
25.1
|
|
Statement
of Eligibility of Trustee under the Senior Debt Indenture
|
|
|
|
|
|
|
|
|
|
(1)
|
|
(1)
|
To be filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in this
registration statement, including a Current Report on Form 8-K.
|
The undersigned
Registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
(i) include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) reflect in
the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs
(1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 and
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove
from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That,
for purposes of determining any liability under the Securities Act of 1933:
(i) The information
omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this registration statement as of the time it was declared effective;
(ii) Each
post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(8) To file
an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Exchange Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, State of Texas, on March 12, 2021.
|
By:
|
/s/ George Holmes
|
|
|
George Holmes
|
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each
individual whose signature appears below constitutes and appoints George B. Holmes and Martin S. McDermut, and each of them, his
true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to
sign any registration statement for the same offering covered by the Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same,
with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes,
may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates stated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
George Holmes
|
|
Chairman of the Board, Chief Executive Officer
|
|
March 12, 2021
|
George Holmes
|
|
and Director
(Principal Executive Officer)
|
|
|
/s/
Martin McDermut
|
|
Chief Financial Officer and Secretary
|
|
March 12, 2021
|
Martin McDermut
|
|
(Principal Financial and Accounting Officer)
|
|
|
/s/
Rubén Caballero
|
|
Director
|
|
March 12, 2021
|
Rubén Caballero
|
|
|
|
|
/s/
Michael Fox
|
|
Director
|
|
March 12, 2021
|
Michael Fox
|
|
|
|
|
/s/
Alan Howe
|
|
Director
|
|
March 12, 2021
|
Alan Howe
|
|
|
|
|
/s/
Joshua Jacobs
|
|
Director
|
|
March 12, 2021
|
Joshua Jacobs
|
|
|
|
|
/s/
Jack Jacobs
|
|
Director
|
|
March 12, 2021
|
Jack Jacobs
|
|
|
|
|
/s/
Jean Rankin
|
|
Director
|
|
March 12, 2021
|
Jean Rankin
|
|
|
|
|
/s/ Robert
Tirva
|
|
Director
|
|
March 12, 2021
|
Robert Tirva
|
|
|
|
|
Signature Page
Resonant (NASDAQ:RESN)
Historical Stock Chart
From Apr 2024 to May 2024
Resonant (NASDAQ:RESN)
Historical Stock Chart
From May 2023 to May 2024