As
filed with the Securities and Exchange Commission on December 9, 2020
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Protara
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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20-4580525
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification Number)
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1
Little West 12th Street
New
York, New York 10014
(646)
844-0337
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
Jesse
Shefferman
Chief
Executive Officer
Protara
Therapeutics, Inc.
1
Little West 12th Street
New
York, New York 10014
(646)
844-0337
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Ryan
S. Sansom, Esq.
Karen
E. Deschaine, Esq.
Shashi
N. Khiani, Esq.
Cooley
LLP
4401
Eastgate Mall
San
Diego, California 92121
(858)
550-6000
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Blaine
Davis
Chief
Financial Officer
Protara
Therapeutics, Inc.
1
Little West 12th Street
New
York, New York 10014
(646)
844-0337
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Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION
OF REGISTRATION FEE
Title of Each Class of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price per Unit
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee(1)
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Common Stock, par value $0.001 per share
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(2)
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(3)
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(3
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)
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-
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Preferred Stock, par value $0.001 per share
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(2)
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(3)
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(3
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)
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-
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Debt Securities
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(2)
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(3)
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(3
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)
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-
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Warrants
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(2)
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(3)
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(3
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)
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-
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Total
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(2)
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$
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300,000,000
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$
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32,730
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(1)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, or the Securities Act.
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(2)
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There
are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal
amount of debt securities and such indeterminate number of warrants to purchase common stock, preferred stock or debt securities
as shall have an aggregate initial offering price not to exceed $300,000,000. If any debt securities are issued at an original
issue discount, then the principal amount of such debt securities shall be in such greater amount as shall result in an aggregate
initial offering price not to exceed $300,000,000, less the aggregate dollar amount of all securities previously issued hereunder.
Any securities registered hereunder may be sold separately or in combination with other securities registered hereunder. The securities
registered 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 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.
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(3)
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The
proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to General Instruction II.D. of Form S-3 under the Securities Act.
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The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any state where such offer
or sale is not permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 9, 2020
PROSPECTUS
$300,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
From
time to time, we may offer up to $300,000,000 of any combination of the securities described in this prospectus in one or more
offerings. We may also offer securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any
securities registered hereunder, including any applicable antidilution provisions.
This
prospectus provides a general description of the securities we may offer. Each time we offer securities, we will provide specific
terms of the securities offered in a supplement 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 you
invest in any of the securities being offered.
This
prospectus may not be used to consummate a sale of any securities unless accompanied by a prospectus supplement.
Our
common stock is listed on The Nasdaq Capital Market, or Nasdaq, under the symbol “TARA.” On December 8, 2020, the
last reported sale price of our common stock was $22.98 per share. The applicable prospectus supplement will contain
information, where applicable, as to any other listing on Nasdaq or any securities market or other exchange of the securities,
if any, covered by the prospectus supplement.
We
will sell these securities directly 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 or 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.
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 as described on page
29 of this prospectus.
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 , 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC,
utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the
securities described in this prospectus in one or more offerings up to a total aggregate offering price of $300,000,000. This
prospectus provides you with a general description of the securities we may offer.
Each
time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that
we have incorporated by reference into this prospectus. You should 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 investing in any of the securities offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither
we, nor any agent, underwriter or dealer has authorized any person to give any information or to make any representation other
than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any related free
writing prospectus prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement
to this prospectus or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement
to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free
writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even
though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities
are sold, on a later date.
This
prospectus and the information incorporated herein by reference 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.”
Unless
otherwise stated, all references in this prospectus to “we,” “us,” “our,” “Protara,”
the “Company” and similar designations refer to Protara Therapeutics, Inc. This prospectus contains references to
trademarks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus, including
logos, artwork and other visual displays, may appear without the ® or ™ symbols, but such references are not intended
to indicate, in any way, that the applicable licensor will not assert, to the fullest extent under applicable law, its rights
to these trademarks and trade names. We do not intend our use or display of other companies’ trade names or trademarks to
imply a relationship with, or endorsement or sponsorship of us by, any other companies.
SUMMARY
The
following summary highlights information contained elsewhere in this prospectus. This summary is not complete and does not contain
all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus,
the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities
discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
You should also carefully read the information incorporated by reference into this prospectus, including our financial statements,
and the exhibits to the registration statement of which this prospectus is a part.
Unless
the context indicates otherwise, references in this prospectus to “Protara,” “Protara Therapeutics,” “the
Company,” “we,” “us,” “our” and similar references refer to Protara Therapeutics, Inc.
Overview
We
are a New York City based clinical-stage biopharmaceutical company committed to identifying and advancing transformative therapies
for the treatment of cancer and rare diseases with significant unmet needs. We prioritize creativity, diverse perspectives, integrity
and tenacity to expedite our goal of bringing life-changing therapies to people with limited treatment options.
Our
portfolio includes two development programs utilizing TARA-002, an investigational cell therapy based on the broad immunopotentiator,
OK-432, which is approved in Japan and Taiwan for the treatment of lymphatic malformations, or LMs, and multiple oncologic indications.
We are initially developing TARA-002 in the U.S. for the treatment of LMs. In addition, we are also developing TARA-002 in the
U.S. for the treatment of non-muscle invasive bladder cancer, or NMIBC. In July 2020, the U.S. Food and Drug Administration, or
FDA, granted Rare Pediatric Disease designation for TARA-002 for the treatment of LMs.
Bladder
cancer is the sixth most common cancer in the United States, with NMIBC representing approximately 80% of bladder cancer diagnoses.
Approximately 65,000 patients are diagnosed with NMIBC in the United States each year. NMIBC is cancer found in the tissue that
lines the inner surface of the bladder that has not spread into the bladder muscle. The current standard of care for NMIBC includes
intravesical Bacillus Calmette-Guerin, or BCG, which has been the subject of multiple global supply shortages in the past decade
due to the inability to meet demand to treat the large worldwide population of patients with NMIBC.
Building
on existing safety and efficacy data from OK-432, and subject to the completion of non-clinical studies as well as acceptance
of an Investigational New Drug, or IND, application, we plan to commence a Phase 1 clinical trial in 2021 to assess the safety
and tolerability of TARA-002 in patients with High Grade NMIBC, potentially including patients with carcinoma in situ, or CIS,
with results expected in 2022. We are currently in the planning stages for the Phase 2 clinical development program, which if
the Phase 1 trial is successful, we will plan to commence with our Phase 2 clinical trials in this indication. The
Phase 2 trials are expected to include High Grade NMIBC patients with CIS +/- Ta and/or T1 papillary tumors and high grade Ta
and/or T1 papillary tumors without CIS.
We
have submitted an update and accompanying clarifying questions to the FDA Division of Vaccines and Related Products
Applications, or the Division, in connection with our IND application for TARA-002 in LMs, and the Division notified us that
it is in the process of generating responses to our clarifying questions. We plan to continue discussions with the FDA to
determine whether OK-432’s more than 25-year safety database in LMs outside the U.S., as well as the significant
treatment effect and safety database from the clinical trials conducted in the US and led by the University of Iowa, are
sufficient for a BLA submission for TARA-002. Based on our interaction with the Division, we may need to conduct additional
clinical trials.
TARA-002
was developed from the same master cell bank of genetically distinct group A Streptococcus pyogenes as OK-432 (marketed
as Picibanil® in Japan and Taiwan by Chugai Pharmaceutical Co., Ltd., or Chugai Pharmaceutical). Following
a recent pre-IND interaction with the Office of Tissues and Advanced Therapies division of the Center for Biologics Evaluation
and Research, or CBER, the FDA agreed that we have successfully demonstrated initial manufacturing comparability between TARA-002
and OK-432. In addition, we continue to be on track to conduct three large-scale batch runs to confirm comparability. Good Manufacturing
Practice, or GMP, scale up is currently in process and we plan to initiate GMP comparability runs with an expected completion
date in mid-2021.
The
third development program in our portfolio is intravenous, or IV, Choline Chloride, an investigational phospholipid substrate
replacement therapy initially in development for patients receiving parenteral nutrition, or PN, who have intestinal failure associated
liver disease, or IFALD. IV Choline Chloride has been granted Orphan Drug Designation by the FDA for this indication and has also
been granted Fast Track Designation for the treatment of IFALD.
Our
fourth program, vonapanitase, is a recombinant human elastase. We are reviewing the research and preclinical and clinical data
of vonapanitase and have not yet determined whether to pursue further development of this product candidate in the future.
We
have devoted substantial efforts to the development of these programs. We do not have any approved products and have not generated
any revenue from product sales. TARA-002 is in later stage development for LMs and has not yet been approved for use for treatment
of LMs, NMIBC or any other indications. We do not expect to generate any significant revenues prior to 2022, if ever. To finance
our current strategic plans, including the conduct of ongoing and future clinical trials and further research and development
costs, we will need to raise additional capital.
The
Merger
On
January 9, 2020, we, then known as Proteon Therapeutics, Inc., completed our previously announced merger transaction with ArTara
Subsidiary, Inc. (formerly ArTara Therapeutics, Inc., or Private ArTara) in accordance with the terms of the Agreement and Plan
of Merger and Reorganization, or the Merger Agreement, dated as of September 23, 2019, by and among the Company, REM 1 Acquisition,
Inc., and Private ArTara, pursuant to which REM 1 Acquisition, Inc. merged with and into Private ArTara, with Private ArTara surviving
as a wholly owned subsidiary of the Company, which we refer to as the “Merger”.
On
January 9, 2020, in connection with, and prior to the completion of, the Merger, we effected a 1-for-40 reverse stock split of
our common stock, Private ArTara changed its name from “ArTara Therapeutics, Inc.” to “ArTara Subsidiary, Inc.”,
and we changed our name from “Proteon Therapeutics, Inc.” to “ArTara Therapeutics, Inc.” On May 11, 2020,
we changed our name from “ArTara Therapeutics, Inc.” to “Protara Therapeutics, Inc.”
Corporate
Information
We
were originally incorporated in March 2006 in the State of Delaware under the name Proteon Therapeutics, Inc., and at that time,
acquired Proteon Therapeutics, LLC, our predecessor, which was formed in June 2001. In January 2020, we effected the Merger. In
January 2020, we changed our name from Proteon Therapeutics, Inc. to ArTara Therapeutics, Inc., and in May 2020, we changed our
name from ArTara Therapeutics, Inc. to Protara Therapeutics, Inc. Our principal executive offices are located at 1 Little West
12th Street, New York, New York 10014, our telephone number is (646) 844-0337 and our website address is www.protaratx.com. The
information contained in or accessible through our website does not constitute part of this prospectus.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such
securities, up to a total aggregate offering price of $300,000,000 from time to time in one or more offerings under this prospectus,
together with any applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined
by market conditions at the time of the relevant offering. 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:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity,
if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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ranking,
if applicable;
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restrictive
covenants, if any;
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voting
or other rights, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to
or adjustments in the conversion or exchange prices or rates and in the securities or
other property receivable upon conversion or exchange; and
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important
U.S. federal income tax considerations.
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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.
We
may sell the securities directly to investors or through underwriters, dealers or agents. We, and our underwriters or agents,
reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters
or agents, we will include in the applicable prospectus supplement:
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the
names of those underwriters or agents;
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applicable
fees, discounts and commissions to be paid to them;
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details
regarding over-allotment options, if any; and
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the
estimated net proceeds to us.
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This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
Common
Stock. We may issue shares of our common stock from time to time. Each holder of common stock is entitled to one vote
for each share on all matters submitted to a vote of the stockholders and does not have cumulative voting rights. Subject to preferences
that may apply to any outstanding preferred stock, holders of our common stock are entitled to receive ratably any dividends that
our board of directors may declare out of funds legally available for that purpose. In the
event of 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 preference of any outstanding preferred stock. Holders
of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund
provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject
to and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that we may designate
in the future, as well as our Series 1 Convertible Non-Voting Preferred Stock, or Series 1 Preferred Stock. In this prospectus,
we have summarized certain general features of our common stock under the heading “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. Under our sixth amended and
restated certificate of incorporation, as amended from time to time, our board of directors has the
authority, without further action by our stockholders (unless such stockholder action is required by applicable law or the rules
of any stock exchange or market on which our securities are then traded), to issue up to 10,000,000 shares of preferred stock
in one or more series and to fix the number, rights, preferences, privileges and restrictions thereof. These rights, preferences
and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and
sinking fund terms, and the number of shares constituting any series or the designation of such series, any or all of which may
be greater than the rights of common stock. Any convertible preferred stock we may issue will be convertible into our common
stock or exchangeable for our other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed
conversion rates.
If
we sell any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights
of such series of preferred stock, as well as the qualifications, limitations or restrictions thereof, 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 that 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 the heading “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. From time to time, we may issue debt securities 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 other securities. Conversion may be mandatory or at the holder’s option and would
be at prescribed conversion rates.
Any
debt securities issued under this prospectus will be issued under one or more documents called indentures, which are contracts
between us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain
general features of the debt securities under the heading “Description of Debt Securities.” 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 debt securities being offered, as well as the complete indenture(s) and any supplemental indentures that contain
the terms of the debt securities. We have filed a form of indenture as an exhibit to the registration statement of which this
prospectus is a part. We will file 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, supplemental indentures and forms of debt securities containing the terms
of the debt securities being offered.
Warrants.
From time to time, we may issue warrants for the purchase of common stock, preferred stock and/or debt securities, in
one or more series, from time to time. We may issue warrants independently or in combination with common stock, preferred stock
and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have summarized
certain general features of the warrants under the heading “Description of Warrants.” 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 particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain
the terms of the warrants. We have filed forms of the warrant agreements and forms of warrant certificates containing the terms
of the warrants that we may offer as exhibits to the registration statement of which this prospectus is a part. We will file as
exhibits to the registration statement of which this prospectus is a part, or will be incorporated by reference from reports that
we file with the SEC, the form of warrant 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.
Any
warrants issued under this prospectus may be evidenced by warrant certificates. 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 applicable, in the prospectus
supplement relating to the particular series of warrants being offered.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully review 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 our Annual Report on Form 10-K for the year ended December 31, 2019, as updated by our annual, quarterly
and other reports and documents that are incorporated by reference into this prospectus, before deciding whether to purchase any
of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk
factors could adversely affect our business, results of operations, financial condition and cash flows, as well as adversely affect
the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of
your investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly
impair our business operations.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including the information incorporated herein by reference, contains, and any prospectus supplement may contain, forward-looking
statements. These statements are based on our management’s current beliefs, expectations and assumptions about future events,
conditions and results and on information currently available to us. Discussions containing these forward-looking statements may
be found, among other places, in the sections titled “Business,” “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” incorporated by reference from our most recent
Annual Report on Form 10-K and our most recent Quarterly Report on Form 10-Q, as well as any amendments thereto, filed with the
SEC.
In
some cases, you can identify forward-looking statements by terminology such as “aim,” “anticipate,” “assume,”
“believe,” “contemplate,” “continue,” “could,” “design,” “due,”
“estimate,” “expect,” “goal,” “intend,” “may,” “objective,”
“plan,” “predict,” “positioned,” “potential,” “seek,” “should,”
“target,” “will,” “would” or the negative or plural of those terms, and similar expressions
intended to identify statements about the future, although not all forward-looking statements contain these words. These forward-looking
statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity,
performance or achievements to be materially different from the information expressed or implied by these statements.
Any
statements in this prospectus, or incorporated herein by reference, about our expectations, beliefs, plans, objectives, assumptions
or future events or performance are not historical facts and are forward-looking statements. Within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act these forward-looking statements include statements regarding:
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the
impact of the COVID-19 pandemic on our business and operations as well as the business
or operations of our manufacturers, research partners, and other third parties with whom
we conduct business or regulatory agencies;
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estimates
regarding our financial performance, including future revenue, expenses and capital requirements;
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our
expected cash position and ability to obtain financing in the future on satisfactory
terms or at all;
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expectations
regarding our plans to research, develop and commercialize our current and future product
candidates, including TARA-002, and Intravenous (IV) Choline Chloride;
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expectations
regarding the safety and efficacy of our product candidates;
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expectations
regarding the timing, costs and outcomes of our planned non-clinical studies and clinical
trials;
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expectations
regarding potential market size;
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expectations
regarding the timing of the availability of data from our non-clinical studies and clinical
trials;
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expectations
regarding the clinical utility, potential benefits and market acceptance of our product
candidates;
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expectations
regarding our commercialization, marketing and manufacturing capabilities and strategy;
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the
implementation of our business model, strategic plans for our business, product candidates
and technology;
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expectations
regarding our ability to identify additional products or product candidates with significant
commercial potential;
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developments
and projections relating to our competitors and industry;
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our
ability to remain listed on the Nasdaq Capital Market;
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the
impact of government laws and regulations;
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the
timing or likelihood of regulatory filings and approvals;
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our
ability to protect our intellectual property position; and
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our
expected use of proceeds from any offering under this prospectus.
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You
should refer to the “Risk Factors” section 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,
for a discussion of important factors that may cause our actual results to differ materially from those expressed or implied by
our forward-looking statements. Given these risks, uncertainties and other factors, many of which are beyond our control, we cannot
assure you that the forward-looking statements in this prospectus will prove to be accurate, and you should not place undue reliance
on these forward-looking statements. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may
be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements
as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time
frame, or at all.
Except
as required by law, we assume no obligation to update these forward-looking statements publicly, or to revise any forward-looking
statements to reflect events or developments occurring after the date of this prospectus, even if new information becomes available
in the future.
USE
OF PROCEEDS
We
will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Except as described
in any applicable prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you
in connection with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered hereby,
if any, for general corporate purposes, including research and development expenses, general
and administrative expenses, sales and marketing expenses, capital expenditures, which may include costs of funding future license
agreements, acquisitions, and working capital or for any other purpose we describe in the applicable prospectus supplement.
We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received
from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending the use of net
proceeds, we plan to invest the net proceeds in short- and intermediate-term interest-bearing
obligations, investment-grade securities, certificates of deposit or government securities.
DESCRIPTION
OF CAPITAL STOCK
The
following summary description of our capital stock is based on the provisions of our sixth amended and restated certificate of
incorporation, as amended from time to time, our second amended and restated bylaws, our certificate of designation of preferences,
rights and limitations of Series 1 Convertible Non-Voting Preferred Stock, as amended from time to time, and the applicable provisions
of the Delaware General Corporation Law. This information is qualified entirely by reference to the applicable provisions of our
sixth amended and restated certificate of incorporation, as amended from time to time, our second amended and restated bylaws,
our certificate of designation of preferences, rights and limitations of Series 1 Convertible Non-Voting Preferred Stock, as amended
from time to time, and the Delaware General Corporation Law. For information on how to obtain copies of our sixth amended and
restated certificate of incorporation, as amended from time to time, our second amended and restated bylaws, our certificate of
designation of preferences, rights and limitations of Series 1 Convertible Non-Voting Preferred Stock, as amended from time to
time, each of which are exhibits to the registration statement of which this prospectus is a part, see “Where You Can Find
Additional Information.” We refer in this section to our sixth amended and restated certificate of incorporation, as amended
from time to time, and our second amended and restated bylaws as our “certificate of incorporation” and our “bylaws”,
respectively.
General
Our
authorized capital stock consists of 110,000,000 shares, all with a par value of $0.001 per share, of which 100,000,000 shares
are designated as common stock and 10,000,000 shares are designated as preferred stock. As of December 7, 2020, we had 11,211,840 shares
of common stock and 8,027.356 shares of Series 1 Preferred Stock outstanding.
Common
Stock
Voting
Rights
Each
holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including
the election of directors. Our stockholders do not have cumulative voting rights in the election of directors. An election of
directors by our stockholders shall be determined by a plurality of votes cast by the stockholders entitled to vote on the election.
Dividends
Subject
to preferences that may be applicable to any then outstanding preferred stock, holders of our common stock are entitled to receive
dividends, if any, as may be declared from time to time by the board of directors out of legally available funds.
Liquidation
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the
net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and
the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights
and Preferences
Holders
of common stock have no preemptive, conversion or subscription rights and there are no redemption or sinking fund provisions applicable
to the common stock. 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 that we may designate in the future.
Preferred
Stock
Under
our certificate of incorporation, our board of directors has the authority, without further action by stockholders, to designate
up to 10,000,000 shares of preferred stock in one or more series and to fix or alter, from time to time, the powers, designations,
preferences, and relative, participating, optional, or other special rights, if any, and such qualifications and restrictions,
if any, of any series of preferred stock, including dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption price or prices, and the liquidation preference of any wholly
unissued series of preferred stock, any or all of which may be greater than the rights of the common stock, and to establish the
number of shares constituting any such series. Our board of directors has designated 8,028 shares of preferred stock as Series
1 Preferred Stock.
Our
board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each
series that we sell under this prospectus and any applicable prospectus supplements in the certificate of designation relating
to each such series. We will incorporate by reference as an exhibit to the registration statement of which this prospectus is
a part or as an exhibit to one or more Current Reports on Form 8-K, the form of any certificate of designation that describes
the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This
description will include:
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the
title and stated value;
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the
number of shares we are offering;
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the
liquidation preference per share;
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the
purchase price per share;
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the
dividend rate per share, dividend period, payment date or dates and method of calculation
for dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which
dividends will accumulate;
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our
right, if any, to defer payment of dividends and the maximum length of any such deferral
period;
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the
procedures for any auction and remarketing, if any;
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the
provisions for a sinking fund, if any;
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights;
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any
listing of the preferred stock on any securities exchange or market;
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whether
the preferred stock will be convertible into our common stock or other securities of
ours, including warrants, and, if applicable, the conversion price, or how it will be
calculated, and under what circumstances and the mechanism by which it may be adjusted,
and the conversion period;
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whether
the preferred stock will be exchangeable into debt securities or other securities of
ours, and, if applicable, the exchange price, or how it will be calculated, and under
what circumstances it may be adjusted, and the exchange period;
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preemptive
rights, if any;
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restrictions
on transfer, sale or other assignment, if any;
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whether
interests in the preferred stock will be represented by depositary shares;
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a
discussion of any material or special U.S. federal income tax considerations applicable
to the preferred stock;
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights
if we liquidate, dissolve or wind up our affairs;
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any
limitations on issuances of any class or series of preferred stock ranking senior to
or on parity with the series of preferred stock being issued as to dividend rights and
rights if we liquidate, dissolve or wind up our affairs; and
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any
other specific terms, rights, preferences, privileges, qualifications or limitations
of, or restrictions on the preferred stock.
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If
we issue and sell shares of preferred stock pursuant to this prospectus, together with any applicable prospectus supplement or
free writing prospectus, the shares will be fully paid and non-assessable.
The
laws of the state of Delaware, the state of our incorporation, provide that the holders of preferred stock will have the right
to vote separately, as a class, on any proposal involving fundamental changes in the rights of holders of such preferred stock.
This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The
issuance of preferred stock could adversely affect the voting power, conversion or other rights of holders of common stock and
reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. Preferred stock could
be issued quickly with terms designed to delay, deter 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.
Series
1 Convertible Non-Voting Preferred Stock
September
2019 Offering
On
September 23, 2019, we entered into a subscription agreement, or the Subscription Agreement, with certain institutional investors,
or the Purchasers, providing for the issuance and sale of 1,896,888 shares of common stock and 3,879.356 shares of Series 1 Preferred
Stock for an aggregate purchase price of approximately $40.5 million. The Subscription Agreement was subsequently amended by a
First Amendment to Subscription Agreement on November 19, 2019.
Each
share of Series 1 Preferred Stock is convertible, at any time at the option of the holder thereof, a conversion rate equal to
the stated value of $7,011.47 per share divided by an initial conversion price of $7.01 per share, subject to adjustment for any
stock splits, stock dividends and similar events, and further subject to a 9.99% blocker provision. Upon written notice to us,
the holder may from time to time increase or decrease such limitation to any other percentage not in excess of 19.99% specified
in such notice. Each share of Series 1 Preferred Stock is entitled to a preference of $10.00 per share upon liquidation of the
Company, and thereafter will share ratably in any distributions or payments on an as-converted basis with the holders of common
stock. In addition, upon the occurrence of certain transactions that involve the merger or consolidation of the Company, an exchange
or tender offer, a sale of all or substantially all of the assets of the Company or a reclassification of its common stock, each
share of Series 1 Preferred Stock will be convertible into the kind and amount of securities, cash and/or other property that
the holder of a number of shares of common stock issuable upon conversion of one share of Series 1 Preferred Stock would receive
in connection with such transaction. Except as provided in the Certificate of Designation or as required by law, the shares of
Series 1 Preferred Stock have no voting rights.
Pursuant
to the Subscription Agreement, certain holders of Series 1 Preferred Stock have preemptive rights to participate pro rata in future
equity financings of the Company, subject to certain exceptions and limitations. In addition, the lead Purchaser has the right
(but not the obligation) to appoint up to two directors to our board of directors and one other Purchaser has the right (but not
the obligation) to appoint one director to our board of directors, in each case subject to requirements related to holding minimum
amounts of our equity securities. In addition, at any time when it does not have a designee serving on the board of directors,
each of these Purchasers has a right to designate an individual to be present and participate in a non-voting capacity in all
meetings of our board of directors and committees of the board. Further, we have also agreed not to take certain actions related
to the business without the consent of the lead Purchaser for so long as such lead Purchaser continues to hold a minimum amount
of the Series 1 Preferred Stock purchased under the Subscription Agreement. These actions include (a) liquidating, dissolving
or winding-up the affairs of the Company; (b) any merger, consolidation or other Fundamental Transaction (defined in the Subscription
Agreement); (c) amendments to our certificate of incorporation or bylaws in a manner that adversely effects the Series 1 Preferred
Stock and that is disproportionate to the effect on any other class or series of capital stock; (d) material changes to the principal
business of the Company; (e) purchases, redemptions or the payment of dividends on any capital stock (subject to certain exceptions);
(f) the sale, assignment, license or pledge of TARA-002; and (g) transactions involving assets of the Company with an aggregate
value over $2.5 million.
Concurrently
with the execution of the Subscription Agreement, we entered into a registration rights agreement, or the Registration Rights
Agreement, dated September 23, 2019, with the Purchasers. Pursuant to the terms of the Registration Rights Agreement, we prepared
and filed a registration statement on Form S-3 on January 30, 2020 for the purposes of registering the resale of the shares of
common stock issued pursuant to the Subscription Agreement and the shares of common stock issuable upon conversion of the Series
1 Preferred Stock issued pursuant to the Subscription Agreement. Additionally, pursuant to the Subscription Agreement, if at any
time after 180 days following the date of closing of the issuance and sale of Series 1 Preferred Stock and common stock pursuant
to the Subscription Agreement, either the lead Purchaser or another Purchaser determines that it may be deemed to be an “affiliate”
of the Company within the meaning of Rule 144 of the Securities Act, we shall enter into a registration rights agreement with
such Purchaser requiring us to file a registration statement on Form S-3 pursuant to a demand by such Purchaser in connection
with the resale of such Purchaser’s shares of common stock.
The
preceding summaries do not purport to be complete and are qualified in their entirety by reference to the Certificate of Designation
for the Series 1 Preferred Stock, the Registration Rights Agreement and the Subscription Agreement, as applicable, copies of which
are attached hereto as Exhibits 3.5, 4.5 and 10.1, respectively, and which are incorporated herein by reference.
September
2020 Offering
On
September 24, 2020, we issued and sold in an underwritten public offering an additional 4,148 shares of our Series 1 Preferred
Stock at an offering price of $16,873.54 per share, for gross and net proceeds of approximately $70.0 million and $66.3 million,
respectively.
Delaware
Anti-Takeover Law and Provisions of Our Certificate of Incorporation, as amended, and Bylaws, as amended
Our
certificate of incorporation and our bylaws contain certain provisions that could have the effect of delaying, deterring or preventing
another party from acquiring control of us, and therefore could adversely affect the market price of our common stock. These provisions
and certain provisions of Delaware General Corporation Law, or the DGCL, which are summarized below, may also discourage coercive
takeover practices and inadequate takeover bids, and are designed, in part, to encourage persons seeking to acquire control of
us to negotiate first with our board of directors. We believe that the benefits of increased protection of our potential ability
to negotiate more favorable terms with an unfriendly or unsolicited acquirer outweigh the disadvantages of potentially discouraging
a proposal to acquire us.
Delaware
Anti-Takeover Law
We
are subject to Section 203 of the DGCL, or Section 203. Section 203 generally prohibits a public Delaware corporation from engaging
in a “business combination” with an “interested stockholder” for a period of three years following the
time that such stockholder became an interested stockholder, unless:
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prior
to such time the board of directors of the corporation approved either the business combination
or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon
consummation of the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, 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
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at
or subsequent to such time the business combination is approved by the board of directors
and authorized at an annual or special meeting of stockholders, and not by written consent,
by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder.
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Section
203 defines a business combination to include:
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any
merger or consolidation involving the corporation and the interested stockholder;
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any
sale, transfer, pledge or other disposition involving the interested stockholder of 10%
or more of the assets of the corporation;
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder;
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subject
to exceptions, any transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the corporation beneficially
owned by the interested stockholder; and
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the corporation.
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In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
Certificate
of Incorporation and Bylaws
Our
certificate of incorporation and bylaws contain certain provisions that are intended to enhance the likelihood of continuity and
stability in the composition of the board of directors and which may have the effect of delaying, deferring or preventing a future
takeover or change in control unless such takeover or change in control is approved by the board of directors. In addition, the
authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting
or other rights or preferences that could impede the success of any attempt to change our control. These provisions include:
Classified
board of directors
Our
certificate of incorporation provides that the board of directors is divided into three classes of directors, with the classes
as nearly equal in number as possible. Any additional directorships resulting from an increase in the number of directors will
be apportioned by the board of directors among the three classes. The classification of directors will have the effect of making
it more difficult for stockholders to change the composition of the board of directors.
Our
certificate of incorporation provides that, subject to any rights of holders of preferred stock to elect additional directors
under specified circumstances, the number of directors will be fixed exclusively pursuant to a resolution adopted by the board
of directors. Any additional directorships resulting from an increase in the number of directors will be distributed among the
three classes so that, as nearly as possible, each class shall consist of one third of the board of directors.
Action
by Written Consent; Special Meetings of Stockholders
Our
certificate of incorporation provides that stockholder action can be taken only at an annual or special meeting of stockholders
and cannot be taken by written consent in lieu of a meeting. Our certificate of incorporation and bylaws also provide that, except
as otherwise required by law, special meetings of the stockholders can be called only by or at the direction of the board of directors
pursuant to a resolution adopted by a majority of the total number of directors. Except as described above, stockholders will
not be permitted to call a special meeting or to require the board of directors to call a special meeting.
Removal
of Directors
Our
certificate of incorporation provides that our directors may be removed only for cause by the affirmative vote of at least 75%
of the voting power of our outstanding shares of capital stock, voting together as a single class and entitled to vote in the
election of directors. This requirement of a supermajority vote to remove directors could enable a minority of our stockholders
to prevent a change in the composition of the board of directors.
Advance
Notice Procedures
Our
bylaws include an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders,
including proposed nominations of persons for election to the board of directors. Stockholders at an annual meeting will only
be able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction
of the board of directors or by a stockholder who was a stockholder of record on the record date for the meeting, who is entitled
to vote at the meeting and who has given our Secretary timely written notice, in proper form, of the stockholder’s intention
to bring that business before the meeting. Although the bylaws do not give the board of directors the power to approve or disapprove
stockholder nominations of candidates or proposals regarding other business to be conducted at a special or annual meeting, the
bylaws may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed
or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors
or otherwise attempting to obtain control of us.
Super
Majority Approval Requirements
The
Delaware General Corporation Law generally provides that the affirmative vote of a majority of the shares entitled to vote on
any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless either a corporation’s
certificate of incorporation or bylaws requires a greater percentage. Our certificate of incorporation and bylaws provide that
the affirmative vote of holders of at least 75% of the outstanding shares of capital stock, voting together as a single class
and entitled to vote in the election of directors will be required to amend, alter, change or repeal the bylaws and certain portions
of the certificate of incorporation. This requirement of a supermajority vote to approve amendments to our bylaws could enable
a minority of our stockholders to exercise veto power over any such amendments.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock will be available for future issuance without stockholder approval. These additional
shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate
acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock could render more difficult
or discourage an attempt to obtain control of a majority of our common stock by means of a proxy contest, tender offer, merger
or otherwise.
Exclusive
Forum
Our
certificate of incorporation provides that, subject to limited exceptions, the state or federal courts located in the State of
Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders,
(iii) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law, our certificate
of incorporation or our bylaws, or (iv) any other action asserting a claim against our that is governed by the internal affairs
doctrine; provided, that these provisions will not apply to actions or proceedings brought to enforce a duty or liability created
by the Securities Act, the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other claim for which the
federal courts have exclusive jurisdiction. Any person or entity purchasing or otherwise acquiring any interest in shares of our
capital stock shall be deemed to have notice of and to have consented to the provisions of our certificate of incorporation described
above. Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for
the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors
and officers. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation
has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described
above, a court could find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or unenforceable.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Listing
Our
common stock is listed on the Nasdaq Capital Market under the symbol “TARA.”
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under
this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture
will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture
as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of
which this prospectus is a part, or will be incorporated by reference from, reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety
by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read
the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer
under this prospectus, as well as the complete indenture 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, 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:
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the
title of the series of debt securities;
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any
limit upon the aggregate principal amount that may be issued;
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the
maturity date or dates;
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the
form of the debt securities of the series;
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the
applicability of any guarantees;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured
debt;
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whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt
or any combination thereof, and the terms of any subordination;
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if
the price (expressed as a percentage of the aggregate principal amount thereof) at which
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;
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the
interest rate or rates, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates interest will be payable
and the regular record dates for interest payment dates or the method for determining
such dates;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral
period;
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if
applicable, the date or dates after which, or the period or periods during which, and
the price or prices at which, we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions;
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the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or
at the holder’s option to purchase, the series of debt securities and the currency
or currency unit in which the debt securities are payable;
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the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series;
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whether
the debt securities of the series shall be issued in whole or in part in the form of
a global security or securities; the terms and conditions, if any, upon which such global
security or securities may be exchanged in whole or in part for other individual securities;
and the depositary for such global security or securities;
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if
applicable, the provisions relating to conversion or exchange of any debt securities
of the series and the terms and conditions upon which such debt securities will be so
convertible or exchangeable, including the conversion or exchange price, as applicable,
or how it will be calculated and may be adjusted, any mandatory or optional (at our option
or the holders’ option) conversion or exchange features, the applicable conversion
or exchange period and the manner of settlement for any conversion or exchange;
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if
other than the full principal amount thereof, the portion of the principal amount of
debt securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof;
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additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant;
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additions
to or changes in the events of default with respect to the securities and any change
in the right of the trustee or the holders to declare the principal, premium, if any,
and interest, if any, with respect to such securities to be due and payable;
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additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance;
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additions
to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions
to or changes in the provisions relating to the modification of the indenture both with
and without the consent of holders of debt securities issued under the indenture;
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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;
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whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made;
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the
terms and conditions, if any, upon which we will pay amounts in addition to the stated
interest, premium, if any and principal amounts of the debt securities of the series
to any holder that is not a “United States person” for federal tax purposes;
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any
restrictions on transfer, sale or assignment of the debt securities of the series; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the
debt securities, any other additions or changes in the provisions of the indenture, and
any terms that may be required by us or advisable under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into
or exchangeable for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange
and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant
to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive
would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than any subsidiary
of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indenture with respect to any series of debt securities that we may issue:
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if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90
days; provided, however, that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto shall not constitute
a default in the payment of interest for this purpose;
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if
we fail to pay the principal of, or premium, if any, on any series of debt securities
as and when the same shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a valid extension of
the maturity of such debt securities in accordance with the terms of any indenture supplemental
thereto shall not constitute a default in the payment of principal or premium, if any;
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if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we receive written notice of
such failure, requiring the same to be remedied and stating that such is a notice of
default thereunder, from the trustee or holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the 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 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 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 trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a
majority 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 trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders
not involved in the proceeding.
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A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with
respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request;
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such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a
majority in aggregate principal amount of the outstanding debt securities of that series
other conflicting directions within 90 days after the notice, request and offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities
of any series;
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to
comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;”
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to
provide for uncertificated debt securities in addition to or in place of certificated
debt securities;
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to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt
securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of
default or to surrender any right or power conferred upon us in the indenture;
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities,
as set forth in the indenture;
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to
make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect;
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to
provide for the issuance of and 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;
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to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or
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to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act.
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In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority 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 trustee may make the following changes only with the consent of each holder of any outstanding
debt securities affected:
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extending
the fixed maturity of any debt securities of any series;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or
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reducing
the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
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:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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pay
principal of and premium and interest on any debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, 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 DTC, or another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and
as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the 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
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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.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to
this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any
holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York,
except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
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 warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series.
Warrants may be issued independently or together with common stock, preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any
warrants 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
have filed forms of the warrant agreements as exhibits to the registration statement of which this prospectus is a part. We will
file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant agreement, if any, including a form of warrant certificate, that describes the
terms of the particular series of warrants we are offering. The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement
and warrant certificate applicable to the particular series of warrants that we may offer under this prospectus. We urge you to
read the applicable prospectus supplements related to the particular series of warrants that we may offer under this prospectus,
as well as any related free writing prospectuses, and the complete warrant agreements and warrant certificates that contain the
terms of the warrants.
General
In
the applicable prospectus supplement, we will describe the terms of the series of warrants being offered, including, to the extent
applicable:
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the
title of such securities;
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the
offering price or prices and aggregate number of warrants offered;
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the
currency or currencies for which the warrants may be purchased;
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the
designation and terms of the securities with which the warrants are issued and the number
of warrants issued with each such security or each principal amount of such security;
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the
date on and after which the warrants and the related securities will be separately transferable;
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the
minimum or maximum amount of such warrants which may be exercised at any one time;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at which, and currency in which,
this principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock or preferred stock, the number of shares
of common stock or preferred stock, as the case may be, purchasable upon the exercise
of one warrant and the price at which, and the currency in which, these shares may be
purchased upon such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the
warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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the
terms of any rights to force the exercise of the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities
issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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a
discussion of any material or special U.S. federal income tax considerations of holding
or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase 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; or
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in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise
or to enforce covenants in the applicable indenture.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be exercised together with specified information, and paying the required
amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth
on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of
the warrant will be required to deliver to the warrant agent in connection with the exercise of the warrant.
On
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 on 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 warrant agreements, and any claim, controversy
or dispute arising under or related to the warrants or warrant agreements, will be governed by and construed in accordance with
the laws of the State of New York.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent, 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.
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary maintain for this purpose as the “holders” of those securities. These persons are the legal
holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that
are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders
are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice
even if that legal holder is required, under agreements with its participants or customers or by law, to pass 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 an indenture, or for other purposes.
In such an event, we would seek approval only from the legal holder, and not the indirect holders, of the securities. Whether
and how the legal holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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|
how
it would handle a request for the holders’ consent, if ever required;
|
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●
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whether
and how you can instruct it to send you securities registered in your own name so you
can be a holder, if that is permitted in the future;
|
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how
it would exercise rights under the securities if there were a default or other event
triggering the need for holders to act to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC, New York, New York, will be the depositary
for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “—Special Situations
When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder
of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations for Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot
obtain non-global certificates for his or her interest in the securities, except in the
special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for
payments on the securities and protection of his or her legal rights relating to the
securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances
where certificates representing the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investor’s interest in the
global security;
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we
and any applicable trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in the global security, nor will we
or any applicable trustee supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and
sell interests in the global security within its book-entry system use immediately available
funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through
which an investor holds its interest in the global security, may also have their own
policies affecting payments, notices and other matters relating to the securities.
|
There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible
for the actions of any of those intermediaries.
Special
Situations When a Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. 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:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act
as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global
security and has not been cured or waived.
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The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, 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:
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at
a fixed price or prices, which may be changed;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices; or
|
We
may also sell equity securities covered by this registration statement in an “at the market” offering as defined in
Rule 415 under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions
at other than a fixed price, either:
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on
or through the facilities of Nasdaq or any other securities exchange or quotation or
trading service on which such securities may be listed, quoted or traded at the time
of sale; and/or
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to
or through a market maker other than on Nasdaq or such other securities exchanges or
quotation or trading services.
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Such
“at the market” offerings, if any, may be conducted by underwriters acting as principal or agent.
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:
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the
name or names of any underwriters, dealers or agents, if any;
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the
purchase price of the securities and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from
us;
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|
any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation;
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any
public offering price;
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●
|
any
discounts or concessions allowed or reallowed or paid to dealers; and
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●
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any
securities exchange or market on which the securities may be listed.
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Only
underwriters named in the prospectus supplement are 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. 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 related to this offering, 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 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 overallotment, stabilizing transactions, short covering transactions and penalty bids. Overallotment
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. Short covering transactions involve
purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit
the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased
in a 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. These transactions
may be effected on any exchange or over-the-counter market or otherwise.
Any
underwriters who are qualified market makers on Nasdaq may engage in passive market making transactions in the securities on Nasdaq
in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must
be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however,
the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. 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.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, certain legal matters in connection with the offering and the validity
of the securities offered by this prospectus, and any supplement thereto, will be passed upon by Cooley LLP. Additional legal
matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The
consolidated financial statements of ArTara Subsidiary, Inc. (formerly ArTara Therapeutics, Inc.) as of December 31, 2019 and
2018 and for each of the years then ended, incorporated by reference in this prospectus from the Company’s Current Report
on Form 8-K/A, filed with the SEC on March 20, 2020, have been audited by Marcum, LLP, an independent registered public accounting
firm, as set forth in their report, which is incorporated herein by reference. Such consolidated financial statements have been
so incorporated by reference in reliance on such report given upon such firm as experts in auditing and accounting.
The
consolidated financial statements of Protara Therapeutics, Inc. (formerly Proteon Therapeutics, Inc. and ArTara Therapeutics,
Inc.) at December 31, 2019 and 2018, and for each of the years then ended, incorporated by reference in this prospectus and registration
statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report
thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts
in accounting and auditing.
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. This prospectus does
not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For
further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the registration statement. You should rely only on the information
contained in this prospectus or incorporated by reference. We have not authorized anyone else to provide you with different information.
We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information
in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time
of delivery of this prospectus or any sale of the securities offered by this prospectus.
We
must comply with the informational requirements of the Exchange Act, and we are required to file reports and proxy statements
and other information with the SEC. You may read and copy these reports, proxy statements and other information on the SEC’s
website at http://www.sec.gov, which contains reports, proxy and information statements and other information regarding issuers
like us that file electronically with the SEC. We maintain a website at www.protaratx.com. The information contained in, or that
can be accessed through, our website is not incorporated by reference herein and is not part of this prospectus.
Statements
contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance
we refer you to the copy of the contract or document filed as an exhibit to the registration statement, each such statement being
qualified in all respects by such reference.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this
prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to
the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information
in this prospectus. We also incorporate by reference into this prospectus the documents listed below and any future filings made
by us with the SEC (other than current reports or portions thereof 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 and other portions of documents that are furnished, but not filed, pursuant
to applicable rules promulgated by the SEC) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus is a part and
prior to effectiveness of the registration statement, and (ii) after the effectiveness of the registration statement but prior
to the termination of the offering of the securities covered by the applicable prospectus supplement:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the
SEC on March 20, 2020;
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the
information specifically incorporated by reference into our Annual Report on Form 10-K
for the year ended December 31, 2019 from our definitive proxy statement on Schedule 14A, as filed with the SEC on April 23, 2020;
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our
Current Reports on Form 8-K filed on January
10, 2020 (as amended by Amendment
No. 1 thereto, filed with the SEC on March 20, 2020), February
11, 2020, March
23, 2020, March
30, 2020, June 10,
2020 (as amended by Amendment
No. 1 thereto, filed with the SEC on October 8, 2020), July
16, 2020, July
24, 2020, September
8, 2020, September
23, 2020, November
17, 2020, December 7,
2020 and December
8, 2020; and
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the
description of our common stock contained in our registration statement on Form 8-A filed
with the SEC on October 16, 2014, including any amendments or reports filed for the purposes
of updating this description.
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We
will furnish without charge to each person, including any beneficial owner, to whom this prospectus supplement and the accompanying
prospectus is delivered, upon written or oral request, a copy of any document incorporated by reference. Requests should be addressed
to 1 Little West 12th Street, New York, NY 10014, Attn: Secretary or may be made telephonically at (646) 844-0337. Copies of these
filings are filings are also available, without charge, on the SEC’s website at www.sec.gov and on our website www.protaratx.com
as soon as reasonably practicable after they are filed electronically with the SEC. The information contained on our website is
not part of this prospectus supplement or the accompanying prospectus.
In
accordance with Rule 412 of the Securities Act, any statement contained in a document incorporated by reference in this prospectus
supplement or the accompanying prospectus shall be deemed modified, superseded or replaced for the purposes of this prospectus
supplement or the accompanying prospectus to the extent that a statement contained in this prospectus supplement or the accompanying
prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement.
PART
II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by us
in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration
fee and the Financial Industry Regulatory Authority, Inc., or FINRA, filing fee.
SEC registration fee
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$
|
32,730
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|
FINRA filing fee
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*
|
|
Accounting fees and expenses
|
|
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*
|
|
Legal fees and expenses
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*
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|
Transfer agent fees and expenses
|
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*
|
|
Trustee fees and expenses
|
|
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*
|
|
Printing and miscellaneous expenses
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
|
*
|
These
fees are calculated based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this
time.
|
Item
15. Indemnification of Officers and Directors
The
registrant’s certificate of incorporation and bylaws provide for indemnification of the registrant’s directors and
officers to the fullest extent permitted by law. Insofar as indemnification for liabilities under the Securities Act of 1933,
as amended, or the Securities Act, may be permitted to directors, officers or controlling persons of the registrant pursuant to
the registrant’s certificate of incorporation, bylaws and the Delaware General Corporation Law, or DGCL, the registrant
has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
Section
102(b)(7) of the DGCL provides that a certificate of incorporation may include a provision that eliminates or limits the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, relating to prohibited dividends or distributions or the repurchase or redemption of stock or (iv) for any transaction
from which the director derives an improper personal benefit. The registrant’s certificate of incorporation includes such
a provision. As a result of this provision, the registrant and its stockholders may be unable to obtain monetary damages from
a director for breach of his or her duty of care.
As
permitted under the DGCL, the registrant has entered into indemnification agreements with each of its directors and executive
officers that require the registrant to indemnify such persons against any and all expenses (including attorneys’, witness
or other professional fees), and unless in connection with a proceeding by or in the right of the registrant, any and all judgments,
fines and amounts paid in settlement, actually and reasonably incurred by such persons or on such persons’ behalf in connection
with any proceeding, whether actual or threatened, to which any such person may be involved as a party or otherwise by reason
of the fact that such person is or was a director or an executive officer of the registrant or is or was serving at the request
of the registrant as a director, officer, employee, agent or fiduciary of another enterprise, provided such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the registrant and, with
respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Under these agreements,
the registrant is not required to provide indemnification for certain matters, including:
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indemnification
beyond that permitted by applicable law;
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except
as provided in the indemnification agreements, an accounting of profits made from the
purchase and sale (or sale and purchase) by such director or executive officer of securities
of the registrant within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or the Exchange Act, or similar provisions of state statutory law
or common law;
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except
as provided in the indemnification agreements, any reimbursement of the registrant by
such director or executive officer of any bonus or other incentive-based or equity-based
compensation or of any profits realized by such director or executive officer from the
sale of securities of the registrant, as required in each case under the Exchange Act;
or
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except
as provided in the indemnification agreements, in connection with any proceeding initiated
by such director or executive officer, unless (i) the registrant’s board of directors
authorized the proceeding prior to its initiation or (ii) the registrant provides the
indemnification, in its sole discretion, pursuant to the powers vested in the registrant
under applicable law.
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The
indemnification agreements also set forth certain procedures, presumptions and remedies that will apply in the event of a claim
for indemnification thereunder.
Any
underwriting agreement that we may enter into may provide for indemnification by any underwriters, of us, our directors, our officers
who sign the registration statement and our controlling persons for some liabilities, including liabilities arising under the
Securities Act.
Item
16. Exhibits and Financial Statement Schedules
(a)
Exhibits.
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|
Description
of Document
|
1.1*
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|
Form
of Underwriting Agreement.
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3.1
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|
Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2014).
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3.2
|
|
Certificate of Amendment to the Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020).
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3.3
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|
Second Certificate of Amendment to the Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on May 13, 2020).
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3.4
|
|
Second Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 3, 2017).
|
3.5
|
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Certificate of Designation of Preferences, Rights and Limitations of Series 1 Convertible Non-Voting Preferred Stock (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020).
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3.6
|
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Certificate of Amendment to the Certificate of Designation of Preferences, Rights and Limitations of Series 1 Convertible Non-Voting Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on September 23, 2020).
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4.1
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|
Reference
is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6.
|
4.2
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|
Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020).
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4.3
|
|
Registration Rights Agreement, dated as of September 23, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K, filed with the SEC on September 24, 2019).
|
4.4*
|
|
Specimen
Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock.
|
4.5
|
|
Form of Indenture, between the Company and one or more trustees to be named (incorporated by reference to Exhibit 4.7 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020).
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4.6*
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|
Form
of Debt Securities.
|
4.7
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.9 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020).
|
4.8
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.10 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020).
|
4.9
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.11 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020).
|
5.1
|
|
Opinion of Cooley LLP.
|
10.1
|
|
Subscription Agreement, dated September 23, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 10.4 to the Registrant's Current Report on Form 8-K, filed with the SEC on September 24, 2019).
|
10.2
|
|
First Amendment to Subscription Agreement, dated November 19, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 99.12 to the Registrant's Registration Statement on Form S-4 (File No. 333-234549)).
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23.1
|
|
Consent of Marcum LLP, Independent Registered Public Accounting Firm.
|
23.2
|
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
|
23.3
|
|
Consent of Cooley LLP (included in Exhibit 5.1).
|
24.1
|
|
Power of Attorney (included on signature page).
|
25.1**
|
|
Statement
of Eligibility of Trustee under the Indenture.
|
|
*
|
To
be filed, if applicable, by amendment or by a report filed under the Exchange Act and incorporated herein by reference.
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|
**
|
To
be filed, if applicable, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule
5b-3 thereunder.
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Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the 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
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(iii)
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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;
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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 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement
or are contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this 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:
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(i)
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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
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(ii)
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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.
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(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:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any
other communication that is an offer in the offering made by the undersigned registrant
to the purchaser.
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(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 Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(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 the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed
by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration
statement as of the time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offing of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 New York, State of New York, on December 9, 2020.
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PROTARA
THERAPEUTICS, INC.
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By:
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/s/
Jesse Shefferman
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Jesse
Shefferman
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jesse Shefferman and Blaine Davis,
and each of them, as his or her true and lawful attorney-in-fact and agent, with the full power of substitution and resubstitution,
for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-3 has been signed by the
following persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Jesse Shefferman
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President and Chief Executive Officer and Director
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December 9, 2020
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Jesse Shefferman
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(Principal Executive Officer)
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/s/ Blaine Davis
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Chief Financial Officer
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December 9, 2020
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Blaine Davis
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(Principal Financial and Accounting Officer)
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/s/ Luke Beshar
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Chairman of the Board of Directors
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December 9, 2020
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Luke Beshar
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/s/ Barry Flannelly
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Director
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December 9, 2020
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Barry Flannelly, Pharm.D.
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/s/ Roger Garceau
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Director
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December 9, 2020
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Roger Garceau
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/s/ Richard Levy, M.D.
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Director
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December 9, 2020
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Richard Levy, M.D.
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/s/ Gregory P. Sargen
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Director
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December 9, 2020
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Gregory P. Sargen
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/s/ Michael Solomon, Ph.D.
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Director
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December 9, 2020
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Michael Solomon, Ph.D.
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II-6
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