Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-264282
Prospectus
Supplement
(to
Prospectus dated May 26, 2023)
NEXGEL,
INC.
222,000
Units Consisting 444,000 Shares of Common Stock
Warrants
to Purchase 222,000 Shares of Common Stock
We
are offering 222,000 units of NexGel, Inc. at a price to the public of $5.00 per unit, with each unit consisting of two shares
of our common stock, par value $0.001 per share, and one warrant to purchase one share of our common stock. Each warrant contained in
a unit has an exercise price of $4.25 per share of common stock. The warrants contained in the units will be exercisable immediately
and will expire five years from the date of issuance. We are also offering the shares of common stock that are issuable from time to
time upon exercise of the warrants contained in the units.
The
units offered hereby have no standalone rights and will not be certificated or issued as standalone securities. The common stock and
warrants included in the units offered hereby can only be purchased together as a unit, but the common stock and warrants will be issued
separately and will be immediately separable upon issuance.
Certain
members of our board of directors and management have agreed to purchase an aggregate of 27,000 units in this offering. In connection
with our offering, the members of board of directors purchasing units in this offering have agreed not to offer, issue, sell, contract
to sell, encumber, grant any option for the sale of or otherwise dispose of any of securities relating to the units for a period of 180
days following the date of the prospectus used in this offering.
Our
common stock and certain of our warrants are listed on The Nasdaq Capital Market, or Nasdaq, under the symbols “NXGL” and
“NXGLW,” respectively. On August 8, 2024, the last reported sale price of our common stock on Nasdaq was $2.71 per share.
The warrants being issued in this offering are not listed on any securities exchange, and we do not expect to list the Warrants or warrants.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-7 of this prospectus
supplement and the risk factors incorporated by reference into this prospectus supplement and the accompanying prospectus.
As
of August 8, 2024, the aggregate market value of the voting and non-voting common equity held by non-affiliates, computed by reference
to the price at which the common equity was last sold on August 8, 2024, was $ million, based on 6,324,266 shares of outstanding common
stock as of such date, of which 4,776,125 shares were held by non-affiliates. Pursuant to General Instruction I.B.6 of Form S-3, in no
event will we sell securities in a public primary offering with a value exceeding more than one-third of our public float in any 12-month
period so long as our public float remains below $75.0 million. During the 12 calendar months prior to and including the date of this
prospectus, we have sold $1.025 million of securities pursuant to General Instruction I.B.6 of Form S-3.
We
are selling the securities directly to the investors. We have retained Alere Financial Partners, LLC (A division of Cova Capital Partners,
LLC) to act as placement agent in connection with the securities offered by this prospectus supplement and the accompanying prospectus.
The placement agent is not purchasing the securities offered by us but have agreed to use their best efforts to solicit offers to purchase
the securities offered by this prospectus supplement and the accompanying prospectus. We have agreed to pay the placement agent a fee
of 8% of the aggregate gross proceeds in this offering received from non-affiliates and 4% of the aggregate gross proceeds in this offering
received from affiliates. See “Plan of Distribution” beginning on page S-11 of this prospectus supplement for more information
regarding these arrangements.
This
offering is for a minimum aggregate number of $500,000 of units that must be sold in order for a closing to occur and this offering may
not exceed the sale more than an aggregate of $1,500,000 of units. This offering shall terminate on August 15, 2024 if the minimum aggregate
number of $500,000 of units has not been sold. The offering shall be limited to an aggregate number of $1,500,000 of units sold. Investor
funds are held in a designated escrow account at Customers Bank and will not be released to us unless and until proceeds for the minimum
number of units have been received and will be returned to investors if proceeds for the minimum number of units have not been received.
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Per Unit | | |
Total | |
Public offering price | |
$ | 5.00 | | |
$ | 1,110,000 | |
Placement agent fees(1) | |
$ | 0.3758 | | |
$ | 83,400 | |
Proceeds, before expenses, to us | |
$ | 4.6243 | | |
$ | 1,026,600 | |
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(1) |
The
placement agent will receive compensation in addition to the cash commission set forth above. See “Plan of Distribution”
beginning on page S-11 of this prospectus supplement for more information regarding the compensation payable to the placement agent. |
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus supplement or the accompanying prospectus. Any representation to the contrary is a criminal
offense.
Delivery
of the securities offered hereby is expected to be made on or about August 14, 2024, subject to the satisfaction of certain conditions.
Alere
Financial Partners, LLC (A division of Cova Capital Partners, LLC)
The
date of this prospectus supplement is August 8, 2024
TABLE
OF CONTENTS
About
This Prospectus Supplement
This
prospectus supplement and the accompanying prospectus are part of a registration statement that we filed with the Securities and Exchange
Commission (the “SEC”) utilizing a “shelf” registration process. Each time we conduct an offering to sell securities
under the accompanying prospectus we will provide a prospectus supplement that will contain specific information about the terms of that
offering, including the price, the amount of securities being offered and the plan of distribution. The shelf registration statement
was initially filed with the SEC on April 13, 2022 and amended on May 26, 2023, and was declared effective by the SEC on June 7, 2023.
This prospectus supplement describes the specific details regarding this offering and may add, update or change information contained
in the accompanying prospectus. The accompanying prospectus provides general information about us and our securities, some of which,
such as the section entitled “Plan of Distribution,” may not apply to this offering. This prospectus supplement and the accompanying
prospectus are an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful
to do so. We are not making offers to sell or solicitations to buy our common stock in any jurisdiction in which an offer or solicitation
is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful
to make an offer or solicitation.
If
information in this prospectus supplement is inconsistent with the accompanying prospectus or the information incorporated by reference
with an earlier date, you should rely on this prospectus supplement. This prospectus supplement, together with the base prospectus, the
documents incorporated by reference into this prospectus supplement and the accompanying prospectus and any free writing prospectus we
have authorized for use in connection with this offering include all material information relating to this offering. We have not, and
the placement agent has not, authorized anyone to provide you with different or additional information and you must not rely on any unauthorized
information or representations. You should assume that the information appearing in this prospectus supplement, the accompanying prospectus,
the documents incorporated by reference in this prospectus supplement and the accompanying prospectus and any free writing prospectus
we have authorized for use in connection with this offering is accurate only as of the respective dates of those documents. Our business,
financial condition, results of operations and prospects may have changed since those dates. You should carefully read this prospectus
supplement, the accompanying prospectus and the information and documents incorporated herein by reference herein and therein, as well
as any free writing prospectus we have authorized for use in connection with this offering, before making an investment decision. See
“Incorporation by Reference” and “Where You Can Find More Information” in this prospectus supplement and in the
accompanying prospectus.
No
action is being taken in any jurisdiction outside the United States to permit a public offering of these securities or possession or
distribution of this prospectus supplement or the accompanying prospectus in that jurisdiction. Persons who come into possession of this
prospectus supplement and the accompanying prospectus in jurisdictions outside the United States are required to inform themselves about
and to observe any restrictions as to this offering and the distribution of this prospectus supplement and the accompanying prospectus
applicable to that jurisdiction.
This
prospectus supplement and the accompanying prospectus contain summaries of certain provisions contained in some of the documents described
herein which are summaries only and are not intended to be complete. Reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the full text of the actual documents, some of which have been filed or will
be filed and incorporated by reference herein. See “Where You Can Find More Information” in this prospectus supplement. We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference into this prospectus supplement or the accompanying prospectus were made solely for the benefit of
the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and
should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were
accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
This
prospectus supplement and the accompanying prospectus contain and incorporate by reference certain market data and industry statistics
and forecasts that are based on Company-sponsored studies, independent industry publications and other publicly available information.
Although we believe these sources are reliable, estimates as they relate to projections involve numerous assumptions, are subject to
risks and uncertainties, and are subject to change based on various factors, including those discussed under “Risk Factors”
in this prospectus supplement and the accompanying prospectus and under similar headings in the documents incorporated by reference herein
and therein. Accordingly, investors should not place undue reliance on this information.
Unless
otherwise stated or the context requires otherwise, all references in this prospectus supplement to the “Company,” “we,”
“us,” “our”, and “NexGel” refer to NexGel, Inc., a Delaware corporation, and its wholly-owned subsidiaries.
Prospectus
Supplement Summary
This
summary highlights information contained elsewhere in this prospectus supplement, the accompanying prospectus and the documents incorporated
by reference herein and therein. This summary does not contain all of the information that you should consider before deciding to invest
in our securities. You should read this entire prospectus supplement and the accompanying prospectus carefully, including the section
entitled “Risk Factors” beginning on page S-7 and our consolidated financial statements and the related notes
and the other information incorporated by reference into this prospectus supplement and the accompanying prospectus, before making an
investment decision.
Our
Company
We
manufacture high water content, electron beam cross-linked, aqueous polymer hydrogels, or gels, used for wound care, medical diagnostics,
transdermal drug delivery and cosmetics. We specialize in custom gels by capitalizing on proprietary manufacturing technologies. We have
historically served as a contract manufacturer, supplying our gels to third parties who incorporate them into their own products and
have recently began producing our own consumer products using our gels focused on proprietary branded products and white label opportunities.
Both our gels and our consumer products are manufactured using proprietary and non-proprietary mixing, coating and cross-linking technologies.
Together, these technologies enable us to produce gels that can satisfy rigid tolerance specifications with respect to a wide range of
physical characteristics (e.g., thickness, water content, adherence, absorption, moisture vapor transmission rate (a measure of the passage
of water vapor through a substance) and release rate) while maintaining product integrity. Additionally, we have the manufacturing ability
to offer broad choices in the selection of liners onto which the gels are coated. Consequently, we and our customers are able to determine
tolerances in moisture vapor transmission rate and active ingredient release rates while personalizing color and texture.
Contract
Manufacturing Business
As
described above, we have historically served as a contract manufacturer, supplying our gels to third parties who incorporate them into
their own products. Our hydrogels are currently being marketed in the U.S. and abroad by our customers for the following applications:
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Drug
Delivery. We believe delivering medication through hydrogel patches has important advantages over traditional methods of drug
delivery. Hydrogel patches are less intrusive, painless, allow for pre-planned medication time periods, can potentially release medication
in a manner consistent with the body’s own glandular activity (by avoiding dosage spikes and/or digestive alteration), and
minimize side effects related to the medication via injection or ingestion. |
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Other
Medical Applications. Hydrogel patches are being used for transdermal applications such as hormone replacement therapy and contraception,
treatment of acne, shingles, diabetes, motion sickness, treatment of angina with nitroglycerin and treatment of smoking addiction
using nicotine and palliatives (i.e., pain relievers). |
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Non-Prescription
Therapeutic Applications. Hydrogel patches are also used in the medical community and are also directly marketed to consumers
for topical application of over the counter (“OTC”) drugs such as non-prescription acne treatments, pain relievers, diet
preparations, cough suppressants, treatment of warts, calluses and corns, and pain relief. |
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Moist
Wound and Burn Dressings. Hydrogel dressings have long been used for treating wounds and burns. Clinical trials have demonstrated
the benefits of moist wound healing versus traditional dressings. Some of these benefits include immediate anti-inflammatory effects,
allowing for freer cell flow and less scarring, increased absorption of exudate, and accelerated healing. |
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Components
of Medical Devices. Several medical devices utilize hydrogels as components. These devices include active drug delivery systems
such as iontophoresis, warming and cooling devices, medical electrodes and various medical products for sensitive skin. |
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Cosmetic
Applications. Hydrogel patches and applications allow for delivery systems of cosmetic skin care products to consumers and skin
care providers for uses that include moisturizers, face masks, cooling masks and applicators. |
We
believe our competitive advantage in each of the general hydrogel patch applications described above is that our hydrogel patches are
gentler to the skin because we do not use chemical cross-linking agents which are incorporated into other hydrogel patches. In the past,
we have not actively marketed our hydrogel or consumer products but beginning in 2021 the Company hired salespeople to focus on expanding
our customer base and marketing efforts. Once the gels are manufactured according to a customer’s specifications, the gels are
generally shipped to the customer via a contract carrier (e.g., United Parcel Service, Inc.).
Our
Facilities
We
manufacture our hydrogels at what we believe to be one of only two facilities that can produce state-of-the–art hydrogel transdermal
products and we have successfully used over two hundred active ingredients combinations in our hydrogels to date. Our facility consists
of 13,500 square feet of manufacturing space, which we currently operate at approximately only 5% capacity and can expand rapidly to
meet increased demand, including for our healthcare and consumer product lines as described in more detail below. At full capacity, our
facility should allow for us to produce approximately 1.4 billion square inches of product annually. Additionally, in 2021 we completed
a $650,000 facility accelerator upgrade which we believe will result in a more efficient manufacturing process. Our facility is subject
to stringent FDA compliance requirements. We also believe our facility creates a high barrier to entry into our hydrogel and consumer
product business.
Consumer
Products
Beginning
in the third quarter of 2020, we began selling our own branded products using our hydrogel technology on the Amazon marketplace. In 2022
we expanded access to our products by launching our own direct to consumer website, Medagel.com. We currently have twenty-three different
product offerings, including multiple packaging configurations of the same product, which we market under the brand names MedaGel and
LumaGel Beauty and intend to offer additional products in 2023 and beyond. The products we sell under our MedaGel brand primarily relate
to over-the-counter (“OTC”) remedy solutions, such as blister and pain applications; while the products we sell under our
LumaGel Beauty brand primarily relate to beauty and cosmetic solutions, such as wrinkle and skin cream applications.
Additionally,
we have several more products in our development pipeline. We intend for these products to address various market opportunities including
the OTC” pharmaceutical drug delivery market, pain management, beauty and cosmetics, sports related applications, cannabinoids
(CBD/THC) and general podiatry.
Custom
and White Label Opportunities
We
leverage our hydrogel products and technologies by allowing other OTC brands to incorporate them into their products. We believe our
hydrogels, which do not use chemical cross-linking agents or parabens but rather use electronic beam energy, will be attractive to other
OTC brands, especially in the beauty and cosmetics industry, and their customers. We believe these white labeling opportunities will
increase the markets’ awareness of us as a consumer-friendly and reliable supplier of customizable patches. Additionally, we created
a process where customers have the ability to create their own custom hydrogel products. Customers pay a development fee that covers
our development expenses, eliminating our financial risk in the success or failure of the custom product. As opposed to our contract
manufacturing business, where we provide bulk sale of roll stock hydrogel to our customers who then use it as one component in their
finished products, our custom and white label business provides customers with a customer branded finished product which they sell to
their consumers.
Medical
Devices
We
have recently entered into the medical device development sector which a focus on analyzing, creating and developing devices and solutions
that reduce skin pain and irritation, improve and maintain skin integrity and provide greater comfort and safety for patients at the
site of which a medical device interfaces with the human body.
We
conducted proof of concept studies for the development of our first medical device, which we call NEXDrape and have filed for a patent
on this device under the Patent Cooperation Treaty which provides patent protection in the nations who are members of the treaty. The
NEXDrape device is an incise surgical drape designed for patients with impaired skin. The elderly, diabetics, trauma patients and those
with an adhesive sensitivity can have adverse events from the removal of adhesive drapes. Additionally, patients taking certain medications,
such as ELIQUIS® and steroids, may experience impaired skin as well. These groups represent a sizable percentage of the
incise surgical drape market, a market we believe to be significant and growing. The incise surgical drape market is currently fragmented
with 3M Healthcare being the market leader. Skin tears, infections, rashes, and post-surgical site pain are some of the problems that
can occur as a result of the removal of adhesive drapes, and have been reported with other currently available surgical drapes.
We
have conducted one animal and two human cadaver proof of concept studies with respect to NEXDrape. As a result of these studies, we believe
NEXDrape will represent a gentle to the skin alternative to the current adhesive based standard of care and will provide a unique solution
for patients with fragile or compromised skin. Additionally, we believe NEXDrape offers the following benefits over the current incise
surgical drape products: (i) no skin irritation; (ii) able to deliver a wide range of antiseptic and antibiotic agents; (iii) eliminates
air bubbles; and (iv) prevents dermis removal post-surgery, which reduces the risk of patient infection and discomfort. We intend to
file a 510(k) premarket submission with the Food and Drug Administration (FDA), which is an application to demonstrate that NEXDrape
is as safe and effective (or substantially equivalent to) a legally marketed surgical drape device. There can be no guarantee that the
FDA approves our application, if submitted.
We
are also in the process of developing a product we call NEXDerm which will be an adhesive tape designed to secure central lines and intravenous
tubes and devices to patients before, during and after medical treatment. We believe NEXDerm will be an attractive alternative to Tegaderm™,
a 3M Healthcare product. Based on our discussion with medical professionals, Tegaderm™ is often difficult and painful to remove
after adhesion, particularly for comprised skin patients. NEXDerm, which will incorporate exclusively licensed technology owned by Noble
Fiber, is designed to create a gentle to skin surgical tape impregnated with antimicrobial X-Static® silver fiber. We believe NEXDerm,
if successfully developed, will offer the following advantages over Tegaderm™: (i) ability to easily reposition the adhesive tape;
(ii) pain-free removal; (iii) gentle to the skin; and (iv) increased infection prevention. As with NEXDrape, we intend to file a 510(k)
premarket submission with the FDA to demonstrate that NEXDrape is as safe and effective (or substantially equivalent to) a legally marketed
surgical drape device. There can be no guarantee that the FDA approves our application, if submitted.
We
are also in the early stages of exploring opportunities to develop a number of other potential medical devices. Our current intent with
any medical devices will not be to commercialize due to the expense required but to potentially prepare them to go to market and to identify
and pursue licensing and partnering arrangements with third parties possessing the necessary resources and capabilities to bring the
devices to market.
Implications
of Being an Emerging Growth Company and a Smaller Reporting Company
We
qualify as an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”)
enacted in April 2012. An “emerging growth company” may take advantage of exemptions from some of the reporting requirements
that are otherwise applicable to public companies. These exceptions include:
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being
permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and
Analysis of Financial Condition and Results of Operations in this prospectus; |
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being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (the
“Sarbanes-Oxley Act”); |
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reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and |
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exemptions
from the requirements to hold a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
In
addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with
new or revised accounting standards. We have elected not to take advantage of the benefits of this exemption and our election is irrevocable.
Therefore, we will not be able to take advantage of this exemption at any time in the future.
Finally,
we are a “smaller reporting company” (and may continue to qualify as such even after we no longer qualify as an emerging
growth company) and accordingly may provide less public disclosure than larger public companies. As a result, the information that we
provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
The
Offering
Units
offered by us |
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222,000
units at a public offering price of $5.00 per unit, each consisting of two shares of common stock and one warrant to purchase a share
of common stock. The units will not be certificated and the shares of common stock and warrants that are part of such units will
be immediately separable and will be issued separately in this offering. |
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Warrants
offered as part of the units |
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Each
unit includes a warrant representing the right to purchase one share of common stock subject to customary adjustments. Each warrant
will have an exercise price of $4.25 per share, will be immediately exercisable and will expire on the fifth anniversary of the original
issuance date. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the warrants.
To better understand the terms of the Warrants, you should carefully read the “Description of Securities We Are Offering”
section of this prospectus. |
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Common
stock outstanding immediately prior to this offering |
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6,324,266
shares |
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Common
Stock to be outstanding after this offering |
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6,768,226,
assuming no exercise of the warrants; 6,990,266 assuming full exercise of the warrants. |
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Use
of proceeds |
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We
expect to receive net proceeds of approximately $1.010 million from this offering, excluding the proceeds, if any, for the exercise
of the warrants, after deducting the placement agent’s fees and estimated offering expenses payable by us. We intend to use
the net proceeds from this offering for working capital and for general corporate purposes. See “Use of Proceeds” on
page S-9 of the prospectus supplement for a more complete description of the intended use of proceeds from this offering. |
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Insider
participation |
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Certain
members of our board of directors and management have agreed to purchase an aggregate of 27,000 units in this offering. In connection
with our offering, the members of board of directors purchasing units in this offering have agreed not to offer, issue, sell, contract
to sell, encumber, grant any option for the sale of or otherwise dispose of any of securities relating to the units for a period
of 180 days following the date of the prospectus used in this offering. |
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Representative
warrant |
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Upon
the closing of this offering, we have agreed to issue to the Alere Financial Partners, LLC (A division of Cova Capital Partners,
LLC) warrants exercisable for a period of five years from the commencement of sales in this offering entitling it purchase up to
8% of the number of shares sold in this offering, or up to 33,360 shares, at a per share exercise price of $4.25. |
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Risk
factors |
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Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-7 of this prospectus supplement
and the risk factors incorporated by reference into this prospectus supplement and the accompanying prospectus. |
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Nasdaq
Capital Market Symbol |
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Our
common stock and certain of our warrants are listed on The Nasdaq Capital Market, or Nasdaq, under the symbols “NXGL”
and “NXGLW,” respectively. |
The
number of shares of common stock expected to be outstanding after this offering is based on 6,324,266 shares of common stock outstanding
as of August 8, 2024 and excludes, as of that date, the following:
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546,364
shares of common stock issuable upon the exercise of outstanding stock options at a weighted average exercise price of $2.274933
per share and 84,284 restricted stock units reserved for issuance; |
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3,713,519
shares of common stock issuable upon the exercise of warrants at a weighted average exercise price of approximately $5.311694; and |
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203,680
shares of common stock reserved for future issuance under the NexGel, Inc. 2019 Long-Term Incentive Plan, as amended. |
Risk
Factors
An
investment in our securities involves risks. We urge you to consider carefully the risks described below, and in the documents incorporated
by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision, including those risks
identified under “Item IA. Risk Factors” in our Annual Report on Form 10-K for the year ended December 31,
2022, which is incorporated by reference in this prospectus supplement and which may be amended, supplemented or superseded from time
to time by other reports that we subsequently file with the SEC. If any of these risks actually occurs, our business, financial condition,
results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting
in a loss of all or part of your investment. Please also read carefully the section below entitled “Cautionary Note Regarding
Forward-Looking Statements”.
Risks
Related to this Offering
Our
management will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds,
and the proceeds may not be invested successfully.
Our
management will have broad discretion in the application of the net proceeds from this offering, and our stockholders will not have the
opportunity as part of their investment decision to assess whether the net proceeds are being used appropriately. Because of the number
and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially
from their currently intended use. The failure by our management to apply these funds effectively could harm our business. See “Use
of Proceeds” on page S-9 of this prospectus supplement for a description of our proposed use of proceeds from this offering.
We
will require additional capital funding, the receipt of which may impair the value of our common stock.
Our
future capital requirements depend on many factors, including our research, development, sales and marketing activities. We will need
to raise additional capital through public or private equity or debt offerings or through arrangements with strategic partners or other
sources in order to continue to develop our drug candidates. There can be no assurance that additional capital will be available when
needed or on terms satisfactory to us, if at all. To the extent we raise additional capital by issuing equity securities, our stockholders
may experience substantial dilution and the new equity securities may have greater rights, preferences or privileges than our existing
common stock.
We
do not intend to pay dividends in the foreseeable future.
We
have never paid cash dividends on our common stock and currently do not plan to pay any cash dividends in the foreseeable future.
There
is no public market for the warrants being offered by us in this offering.
There
is no established public trading market for the warrants being offered in this offering, and we do not expect a market to develop. In
addition, we do not intend to apply to list the warrants on any national securities exchange or other nationally recognized trading system,
including Nasdaq. Without an active market, the liquidity of the warrants will be limited.
Holders
of warrants purchased in this offering will have no rights as common stockholders until such holders exercise their warrants and acquire
our common stock.
Until
holders of warrants acquire shares of our common stock upon exercise thereof, such holders will have no rights with respect to the shares
of our common stock underlying the warrants. Upon exercise of the warrants, the holders will be entitled to exercise the rights of a
common stockholder only as to matters for which the record date occurs after the exercise date.
Cautionary
Note Regarding Forward-Looking Statements
This
prospectus supplement, the accompanying prospectus and the documents we have filed with the SEC that are incorporated by reference herein
and therein contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements concern our current plans, intentions,
beliefs, expectations and statements of future economic performance. Statements containing terms such as “will,” “may,”
“believe,” “do not believe,” “plan,” “expect,” “intend,” “estimate,”
“anticipate” and other phrases of similar meaning are considered to be forward-looking statements.
Forward-looking
statements include, but are not limited to, statements about:
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our
ability to continue as a going concern; |
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inadequate
capital; |
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inadequate
or an inability to raise sufficient capital to execute our business plan; |
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our
ability to comply with current good manufacturing practices; |
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loss
or retirement of key executives; |
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our
plans to make significant additional outlays of working capital before we expect to generate significant revenues and the uncertainty
regarding when we will begin to generate significant revenues, if we are able to do so; |
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adverse
economic and geopolitical conditions, including the current conflict in Ukraine, and/or intense competition; |
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loss
of a key customer or supplier; |
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entry
of new competitors; |
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adverse
federal, state and local government regulation; |
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technological
obsolescence of our manufacturing process and equipment; |
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technical
problems with our research and products; |
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risks
of mergers and acquisitions including the time and cost of implementing transactions and the potential failure to achieve expected
gains, revenue growth or expense savings; |
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price
increases for supplies and components; |
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the
inability to carry out our business plans; and |
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other
risks and uncertainties, including those described under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and subsequent Quarterly Reports on Form 10-Q, which risk factors are incorporated
herein by reference |
Forward-looking
statements are based on our assumptions and are subject to known and unknown risks and uncertainties that could cause actual results
to differ materially from those reflected in or implied by these forward-looking statements. Factors that might cause actual results
to differ include, among others, those set forth under “Risk Factors” in this prospectus supplement and those discussed in
“Management’s Discussion and Analysis of Financial Condition and Results of Operation” in our most recent Annual Report
on Form 10-K and in our future reports filed with the SEC, all of which are incorporated by reference herein. Readers are cautioned not
to place undue reliance on any forward-looking statements contained in this prospectus supplement, the accompanying prospectus or the
documents we have filed with the SEC that are incorporated by reference herein and therein, which reflect management’s views and
opinions only as of their respective dates. We assume no obligation to update forward-looking statements to reflect actual results, changes
in assumptions or changes in other factors affecting such forward-looking statements, except to the extent required by applicable securities
laws.
You
should carefully read this prospectus supplement, the accompanying prospectus and the information incorporated herein by reference as
described under the heading “Incorporation by Reference,” and the documents that we reference in this prospectus supplement
and the accompanying prospectus and have filed as exhibits to the registration statement of which this prospectus supplement and the
accompanying prospectus are a part with the understanding that our actual future results, levels of activity, performance and achievements
may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
Use
of Proceeds
We
estimate that the net proceeds from this offering will be approximately $1.010 million, after deducting the estimated placement agent
fees and estimated offering expenses payable by us, assuming all of the units (or warrants) offered hereby are sold. This estimate excludes
the proceeds, if any, from exercise of the warrants.
We
intend to use the net proceeds from this offering for working capital and for general corporate purposes. This represents our best estimate
of the manner in which we will use the net proceeds we receive from this offering based upon the current status of our business, but
we have not reserved or allocated amounts for specific purposes and we cannot specify with certainty how or when we will use any of the
net proceeds. Amounts and timing of our actual expenditures will depend on numerous factors. Our management will have broad discretion
in applying the net proceeds from this offering.
Pending
application of the net proceeds as described above, we intend to invest the proceeds to us in investment-grade, interest-bearing securities
such as money market funds, certificates of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We
cannot predict whether the proceeds invested will yield a favorable, or any, return.
Dividend
Policy
We
have never declared or paid any cash dividends on our capital stock, and we do not currently intend to pay any cash dividends on our
common stock for the foreseeable future. We expect to retain future earnings, if any, to fund the development and growth of our business.
Any future determination to pay dividends on our common stock will be at the discretion of our board of directors and will depend upon,
among other factors, our results of operations, financial condition, capital requirements and any contractual restrictions.
Description
of the Securities We are Offering
Units
We
are offering units in this offering at an initial offering price of $5.00 per unit. Each unit consists of two shares of our common stock
and a warrant to purchase one share of our common stock at an exercise price equal to $4.25. The units will not be certificated and the
shares of common stock and warrants included in the units will be issued separately and will be immediately separable upon issuance.
Common
Stock
The
material terms and provisions of our common stock are described under the caption “Description of Capital Stock” in this
prospectus.
Warrants
Warrants
to Be Issued as Part of the Units
The
following summary of certain terms and provisions of the warrants to be included in the units offered by this prospectus is not complete
and is subject to, and qualified in its entirety by, the provisions of the form of warrant. Prospective investors should carefully review
the terms and provisions set forth in the form of warrant.
Exercisability.
The warrants are exercisable at any time after their original issuance and at any time up to the date that is five years after their
original issuance. The warrants will be exercisable, at the option of each holder, in whole or in part by delivering to us a duly executed
exercise notice and, at any time a registration statement registering the issuance of the shares of common stock underlying the warrants
under the Securities Act is effective and available for the issuance of such shares, or an exemption from registration under the Securities
Act is available for the issuance of such shares, by payment in full in immediately available funds for the number of shares of common
stock purchased upon such exercise. If a registration statement registering the issuance of the shares of common stock underlying the
warrants under the Securities Act is not effective or available and an exemption from registration under the Securities Act is not available
for the issuance of such shares, the holder may, in its sole discretion, elect to exercise the warrant through a cashless exercise, in
which case the holder would receive upon such exercise the net number of shares of common stock determined according to the formula set
forth in the warrant. No fractional shares of common stock will be issued in connection with the exercise of a warrant. In lieu of fractional
shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price.
Exercise
Limitation. A holder will not have the right to exercise any portion of the warrant if the holder (together with its affiliates)
would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to
the exercise, as such percentage ownership is determined in accordance with the terms of the warrants. However, any holder may increase
or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be
effective until 61 days following notice from the holder to us.
Exercise
Price. The exercise price per whole share of common stock purchasable upon exercise of the warrants is $4.25 per share. The exercise
price is subject to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations,
reclassifications or similar events affecting our common stock and also upon any distributions of assets, including cash, stock or other
property to our stockholders.
Transferability.
Subject to applicable laws, the warrants may be offered for sale, sold, transferred or assigned without our consent.
Fundamental
Transactions. In the event of a fundamental transaction, as described in the warrants and generally including any reorganization,
recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our
properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common
stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock, the
holders of the warrants will be entitled to receive upon exercise of the warrants the kind and amount of securities, cash or other property
that the holders would have received had they exercised the warrants immediately prior to such fundamental transaction.
Rights
as a Stockholder. Except as otherwise provided in the warrants or by virtue of such holder’s ownership of shares of our common
stock, the holder of a warrant does not have the rights or privileges of a holder of our common stock, including any voting rights, until
the holder exercises the warrant.
Governing
Law. The warrants are governed by New York law.
Plan
of Distribution
We
have engaged Alere Financial Partners, LLC (A division of Cova Capital Partners, LLC) to act as our placement agent pursuant to a placement
agent agreement in connection with this offering. The placement agent is not purchasing or selling any of the securities we are offering
by this prospectus supplement but have agreed to use their best efforts to arrange for the sale of the Shares (or warrants) offered by
this prospectus supplement. The placement agent may retain sub-agents and selected dealers in connection with this offering.
We
currently anticipate that the closing of this offering will take place on or about August 14, 2024, subject to customary closing
conditions. On the closing date, the following will occur:
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we
will receive funds in the amount of the aggregate purchase price; |
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the
placement agent will receive the placement agent fees in accordance with the terms of the placement agent agreement; and |
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we
will deliver the shares of our common stock (or warrants) to the investors. |
Fees
and Expenses
We
have agreed to pay the placement agent a placement agent fee in cash equal to 8% of the gross proceeds from the sale of the securities
to non-affiliates in this offering and 4% of the gross proceeds from the sale of the securities to affiliates in this offering.
Additionally
and upon the closing of this offering, we have agreed to issue to the placement agent warrants exercisable for a period of five years
entitling the placement agent to purchase up to 8% of the number of shares sold in this offering, or up to 33,360 shares, at a per share
exercise price of $4.25.
The
following table shows the per share and total cash placement agent’s fees we will pay to the placement agent in connection with
the sale of the securities offered pursuant to this prospectus supplement and the accompanying prospectus, assuming the purchase of all
of the securities offered hereby.
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Per Unit | | |
Total | |
Public offering price | |
$ | 5.00 | | |
$ | 1,110,000 | |
Placement agent fees(1) | |
$ | 0.3758 | | |
$ | 83,400 | |
Proceeds, before expenses, to us | |
$ | 4.6243 | | |
$ | 1,026,600 | |
(1)
The placement agent will receive compensation in addition to the cash commission set forth above. See “Plan of Distribution”
beginning on page S-11 of this prospectus supplement for more information regarding the compensation payable to the placement agent.
We
estimate the total expenses of this offering (including the expenses reimbursable to the placement agent) payable by us, excluding the
placement agent fee, will be approximately $85,000.
We
have agreed to indemnify the placement agent and certain other persons against certain liabilities relating to or arising out of the
placement agents’ activities under the placement agency agreement. We have also agreed to contribute to payments the placement
agent may be required to make in respect of such liabilities.
The
placement agent may be deemed to be underwriters within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received
by them and any profit realized on the resale of the shares sold by them while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements
of the Securities Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and
Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares of common stock
by the placement agent acting as principal. Under these rules and regulations, the placement agent:
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not engage in any stabilization activity in connection with our securities; and |
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must
not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted
under the Exchange Act, until it has completed its participation in the distribution. |
Lock-Up
Agreements
Certain
members of our board of directors and management have agreed to purchase an aggregate of 27,000 units in this offering. In connection
with our offering, the members of board of directors purchasing units in this offering have agreed not to offer, issue, sell, contract
to sell, encumber, grant any option for the sale of or otherwise dispose of any of securities relating to the units for a period of 180
days following the date of the final prospectus used in this offering.
Tail
Fee
We
have agreed to pay the placement agent a tail fee equal to the cash compensation in this offering, if any investor, who was contacted
or introduced to us by the placement agent during the term of its engagement, provides us with capital in any financing of equity, equity-linked,
convertible or debt or other capital raising activity during the 12 month period beginning from the closing of this offering.
Discretionary
Accounts
The
placement agent does not intend to confirm sales of the securities offered hereby to any accounts over which it has discretionary authority.
Listing
Our
common stock and certain of our warrants are listed on The Nasdaq Capital Market, or Nasdaq, under the symbols “NXGL” and
“NXGLW,” respectively.
Other
Relationships
The
placement agent and certain of its affiliates are full service financial institutions engaged in various activities, which may include
securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment,
hedging, financing and brokerage activities. The placement agent and certain of its affiliates have, from time to time, performed, and
may in the future perform, various commercial and investment banking and financial advisory services for us and our affiliates, for which
they received or will receive customary fees and expenses.
In
the ordinary course of their various business activities, the placement agent and certain of its affiliates may make or hold a broad
array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including
bank loans) for their own account and for the accounts of their customers, and such investment and securities activities may involve
securities and/or instruments issued by us and our affiliates. If the placement agent or its affiliates have a lending relationship with
us, they routinely hedge their credit exposure to us consistent with their customary risk management policies. The placement agent and
its affiliates may hedge such exposure by entering into transactions that consist of either the purchase of credit default swaps or the
creation of short positions in our securities or the securities of our affiliates, including potentially the securities offered hereby.
Any such short positions could adversely affect future trading prices of the securities offered hereby. The placement agent and certain
of its affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express
independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire,
long and/or short positions in such securities and instruments.
Legal
Matters
The
validity of the securities offered hereby will be passed upon for us by Quick Law Group PC, Boulder, Colorado.
Experts
The
consolidated financial statements of NexGel, Inc. and subsidiaries as of and for the years ended December 31, 2023 and 2022 have been
incorporated by reference in this prospectus and elsewhere in the registration statement have been incorporated by reference in reliance
upon the report of Turner, Stone & Company, LLP, independent registered public accountants, upon the authority of said firm as experts
in accounting and auditing.
Incorporation
by Reference
The
SEC allows us to “incorporate by reference” into this prospectus supplement the information in other documents that we file
with it. This means that we can disclose important information to you by referring you to those documents. The information incorporated
by reference is considered to be a part of this prospectus supplement, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus supplement.
We incorporate by reference in this prospectus supplement the documents listed below and any future filings that we may make with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of the offering under this prospectus supplement;
provided, however, that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed
in accordance with SEC rules :
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2023, filed on April 10, 2024 and Amendment No. 1 to Annual Report on
Form 10-K for the fiscal year ended December 31, 2023, filed on June 13, 2024 |
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Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2023, filed on August 14, 2023; |
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Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2023, filed on November 13, 2023; |
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Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed on May 13, 2024; |
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Amendment
No. 1 to Definitive Proxy Statement on Schedule
14A for 2024 Annual Meeting of Stockholders, filed on May 3, 2024; |
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Current
Report on Form 8-K, filed on December 5, 2023; |
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Current
Report on Form 8-K, filed on December 12, 2023; |
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Current
Report on Form 8-K, filed on December 29, 2023; |
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Current
Report on Form 8-K, filed on January 16, 2024; |
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Current
Report on Form 8-K, filed on February 21, 2024; |
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Current
Report on Form 8-K, filed on May 20, 2024; |
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Current
Report on Form 8-K, filed on June 17, 2024; and |
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The
description of our common stock contained in the Registration Statement on Amendment No.3 to Form S-1 filed pursuant to Section 12
of the Exchange Act on December 10, 2021, including any amendment or report filed with the SEC for the purpose of updating this description. |
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering will also be incorporated by reference in this prospectus supplement and deemed to be part of this prospectus supplement
from the date of the filing of such reports and documents. We are not, however, incorporating by reference any documents or portions
thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the SEC, including any
information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.
You
may obtain a copy of any or all of the documents referred to above, which may have been or may be incorporated by reference into this
prospectus supplement, including exhibits, at no cost to you by writing or telephoning us at the following address:
NexGel,
Inc.
Attn:
Corporate Secretary
2150
Cabot Blvd West, Suite B
Langhorne, PA 19047
(215)
702 8550
Where
You Can Find More Information
This
prospectus supplement and the accompanying prospectus are part of a registration statement on Form S-3 we filed with the SEC under the
Securities Act and do not contain all the information set forth or incorporated by reference in the registration statement. Whenever
a reference is made in this prospectus supplement or the accompanying prospectus to any of our contracts, agreements or other documents,
the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits
to the reports or other documents incorporated by reference into this prospectus supplement or the accompanying prospectus for a copy
of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act,
we file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy information
filed by us with the SEC at the SEC’s public reference section, 100 F Street, N.E., Washington, D.C. 20549. Information regarding
the operation of the public reference section can be obtained by calling 1-800-SEC-0330. The SEC also maintains an Internet site at http://www.sec.gov
that contains reports, statements and other information about issuers, such as us, who file electronically with the SEC.
We
also maintain a website at www.nexgel.com through which you can access our SEC filings free of charge. The information set forth on our
website is not part of this prospectus.
PROSPECTUS
NEXGEL,INC.
$75,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
From
time to time, we may offer and sell, in one or more offerings, up to $75,000,000 of any combination of the securities described in this
prospectus. We may also offer securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities
registered hereunder, including any applicable anti-dilution provisions.
We
will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change
information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well
as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities
offered hereby.
Our
common stock and warrants are listed on The Nasdaq Capital Market under the symbols “NXGL” and “NXGLW,” respectively.
On May 25, 2023, the last reported sale price of our common stock was $2.21 per share as reported on The Nasdaq Capital Market. We recommend
that you obtain current market quotations for our common stock prior to making an investment decision. We will provide information in
any applicable prospectus supplement regarding any listing of securities other than shares of our common stock on any securities exchange.
This prospectus may not be used to sell our securities unless it is accompanied by a prospectus supplement.
We
may offer and sell our securities to or through one or more agents, underwriters, dealers or other third parties or directly to one or
more purchasers on a continuous or delayed basis. If agents, underwriters or dealers are used to sell our securities, we will name them
and describe their compensation in a prospectus supplement. The price to the public of our securities and the net proceeds we expect
to receive from the sale of such securities will also be set forth in a prospectus supplement. For additional information on the methods
of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus
As
of May 25, 2023, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $9.076 million,
which was calculated based on 4,106,873 shares of outstanding common stock held by non-affiliates, at a price per share of $2.21. Pursuant
to General Instruction I.B.6 of Form S-3, in no event will we sell the securities described in this prospectus in a public primary offering
with a value exceeding more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period,
so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75 million. During the 12
calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction
I.B.6 of Form S-3.
We
are an “emerging growth company,” as that term is used in the Jumpstart Our Business Startups Act of 2012 and, as such, we
have elected to comply with certain reduced public company reporting requirements for this prospectus and future filings. See “The
Company—Implications of Being an Emerging Growth Company.”
Our
business and investing in shares of our common stock involves significant risks. You should review carefully the risks and uncertainties
referenced under the heading “Risk Factors” on page 5 of this prospectus, as well as those contained in the applicable
prospectus supplement and any related free writing prospectus, and in the other documents that are incorporated by reference into this
prospectus or the applicable prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is May 26, 2023
NEXGEL,
INC.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement filed with the Securities and Exchange Commission (the “SEC”), using a “shelf”
registration process. Under this shelf registration process, we may sell the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities which may be offered. Each time we offer securities for sale,
we will provide a prospectus supplement that contains specific information about the terms of that offering. Any prospectus supplement
may also add or update information contained in this prospectus. You should read both this prospectus and any prospectus supplement together
with additional information described below under “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference.”
You
should rely only on the information contained or incorporated by reference in this prospectus, and in any prospectus supplement. We have
not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. We are not making offers to sell or solicitations to buy the securities described in this prospectus in any
jurisdiction in which an offer or solicitation is not authorized, or in which the person making that offer or solicitation is not qualified
to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the information in this prospectus
or any prospectus supplement, as well as the information we file or previously filed with the SEC that we incorporate by reference in
this prospectus or any prospectus supplement is accurate as of any date other than its respective date. Our business, financial condition,
results of operations and prospects may have changed since those dates.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where
You Can Find More Information”.
All
brand names or trademarks appearing in this report are the property of their respective holders. Unless the context requires otherwise,
references in this prospectus to “NexGel,” the “Company,” “we,” “us,” and “our”
refer to NexGel, Inc., a Delaware corporation.
THE
COMPANY
Our
Company
We
manufacture high water content, electron beam cross-linked, aqueous polymer hydrogels, or gels, used for wound care, medical diagnostics,
transdermal drug delivery and cosmetics. We specialize in custom gels by capitalizing on proprietary manufacturing technologies. We have
historically served as a contract manufacturer, supplying our gels to third parties who incorporate them into their own products and
have recently began producing our own consumer products using our gels focused on proprietary branded products and white label opportunities.
Both our gels and our consumer products are manufactured using proprietary and non-proprietary mixing, coating and cross-linking technologies.
Together, these technologies enable us to produce gels that can satisfy rigid tolerance specifications with respect to a wide range of
physical characteristics (e.g., thickness, water content, adherence, absorption, moisture vapor transmission rate (a measure of the passage
of water vapor through a substance) and release rate) while maintaining product integrity. Additionally, we have the manufacturing ability
to offer broad choices in the selection of liners onto which the gels are coated. Consequently, we and our customers are able to determine
tolerances in moisture vapor transmission rate and active ingredient release rates while personalizing color and texture.
Contract
Manufacturing Business
As
described above, we have historically served as a contract manufacturer, supplying our gels to third parties who incorporate them into
their own products. Our hydrogels are currently being marketed in the U.S. and abroad by our customers for the following applications:
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Drug
Delivery. We believe delivering medication through hydrogel patches has important advantages over traditional methods of drug
delivery. Hydrogel patches are less intrusive, painless, allow for pre-planned medication time periods, can potentially release medication
in a manner consistent with the body’s own glandular activity (by avoiding dosage spikes and/or digestive alteration), and
minimize side effects related to the medication via injection or ingestion. |
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Other
Medical Applications. Hydrogel patches are being used for transdermal applications such as hormone replacement therapy and contraception,
treatment of acne, shingles, diabetes, motion sickness, treatment of angina with nitroglycerin and treatment of smoking addiction
using nicotine and palliatives (i.e., pain relievers). |
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Non-Prescription
Therapeutic Applications. Hydrogel patches are also used in the medical community and are also directly marketed to consumers
for topical application of over the counter (“OTC”) drugs such as non-prescription acne treatments, pain relievers, diet
preparations, cough suppressants, treatment of warts, calluses and corns, and pain relief. |
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Moist
Wound and Burn Dressings. Hydrogel dressings have long been used for treating wounds and burns. Clinical trials have demonstrated
the benefits of moist wound healing versus traditional dressings. Some of these benefits include immediate anti-inflammatory effects,
allowing for freer cell flow and less scarring, increased absorption of exudate, and accelerated healing. |
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Components
of Medical Devices. Several medical devices utilize hydrogels as components. These devices include active drug delivery systems
such as iontophoresis, warming and cooling devices, medical electrodes and various medical products for sensitive skin. |
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Cosmetic
Applications. Hydrogel patches and applications allow for delivery systems of cosmetic skin care products to consumers and skin
care providers for uses that include moisturizers, face masks, cooling masks and applicators. |
We
believe our competitive advantage in each of the general hydrogel patch applications described above is that our hydrogel patches are
gentler to the skin because we do not use chemical cross-linking agents which are incorporated into other hydrogel patches. In the past,
we have not actively marketed our hydrogel or consumer products but beginning in 2021 the Company hired salespeople to focus on expanding
our customer base and marketing efforts. Once the gels are manufactured according to a customer’s specifications, the gels are
generally shipped to the customer via a contract carrier (e.g., United Parcel Service, Inc.).
Our
Facilities
We
manufacture our hydrogels at what we believe to be one of only two facilities that can produce state-of-the–art hydrogel transdermal
products and we have successfully used over two hundred active ingredients combinations in our hydrogels to date. Our facility consists
of 13,500 square feet of manufacturing space, which we currently operate at approximately only 5% capacity and can expand rapidly to
meet increased demand, including for our healthcare and consumer product lines as described in more detail below. At full capacity, our
facility should allow for us to produce approximately 1.4 billion square inches of product annually. Additionally, in 2021 we completed
a $650,000 facility accelerator upgrade which we believe will result in a more efficient manufacturing process. Our facility is subject
to stringent FDA compliance requirements. We also believe our facility creates a high barrier to entry into our hydrogel and consumer
product business.
Consumer
Products
Beginning
in the third quarter of 2020, we began selling our own branded products using our hydrogel technology on the Amazon marketplace. In 2022
we expanded access to our products by launching our own direct to consumer website, Medagel.com. We currently have twenty-three different
product offerings, including multiple packaging configurations of the same product, which we market under the brand names MedaGel and
LumaGel Beauty and intend to offer additional products in 2023 and beyond. The products we sell under our MedaGel brand primarily relate
to over-the-counter (“OTC”) remedy solutions, such as blister and pain applications; while the products we sell under our
LumaGel Beauty brand primarily relate to beauty and cosmetic solutions, such as wrinkle and skin cream applications.
Additionally,
we have several more products in our development pipeline. We intend for these products to address various market opportunities including
the OTC” pharmaceutical drug delivery market, pain management, beauty and cosmetics, sports related applications, cannabinoids
(CBD/THC) and general podiatry.
Custom
and White Label Opportunities
We
leverage our hydrogel products and technologies by allowing other OTC brands to incorporate them into their products. We believe our
hydrogels, which do not use chemical cross-linking agents or parabens but rather use electronic beam energy, will be attractive to other
OTC brands, especially in the beauty and cosmetics industry, and their customers. We believe these white labeling opportunities will
increase the markets’ awareness of us as a consumer-friendly and reliable supplier of customizable patches. Additionally, we created
a process where customers have the ability to create their own custom hydrogel products. Customers pay a development fee that covers
our development expenses, eliminating our financial risk in the success or failure of the custom product. As opposed to our contract
manufacturing business, where we provide bulk sale of roll stock hydrogel to our customers who then use it as one component in their
finished products, our custom and white label business provides customers with a customer branded finished product which they sell to
their consumers.
Medical
Devices
We
have recently entered into the medical device development sector which a focus on analyzing, creating and developing devices and solutions
that reduce skin pain and irritation, improve and maintain skin integrity and provide greater comfort and safety for patients at the
site of which a medical device interfaces with the human body.
We
conducted proof of concept studies for the development of our first medical device, which we call NEXDrape and have filed for a patent
on this device under the Patent Cooperation Treaty which provides patent protection in the nations who are members of the treaty. The
NEXDrape device is an incise surgical drape designed for patients with impaired skin. The elderly, diabetics, trauma patients and those
with an adhesive sensitivity can have adverse events from the removal of adhesive drapes. Additionally, patients taking certain medications,
such as ELIQUIS® and steroids, may experience impaired skin as well. These groups represent a sizable percentage of the
incise surgical drape market, a market we believe to be significant and growing. The incise surgical drape market is currently fragmented
with 3M Healthcare being the market leader. Skin tears, infections, rashes, and post-surgical site pain are some of the problems that
can occur as a result of the removal of adhesive drapes, and have been reported with other currently available surgical drapes.
We
have conducted one animal and two human cadaver proof of concept studies with respect to NEXDrape. As a result of these studies, we believe
NEXDrape will represent a gentle to the skin alternative to the current adhesive based standard of care and will provide a unique solution
for patients with fragile or compromised skin. Additionally, we believe NEXDrape offers the following benefits over the current incise
surgical drape products: (i) no skin irritation; (ii) able to deliver a wide range of antiseptic and antibiotic agents; (iii) eliminates
air bubbles; and (iv) prevents dermis removal post-surgery, which reduces the risk of patient infection and discomfort. We intend to
file a 510(k) premarket submission with the Food and Drug Administration (FDA), which is an application to demonstrate that NEXDrape
is as safe and effective (or substantially equivalent to) a legally marketed surgical drape device. There can be no guarantee that the
FDA approves our application, if submitted.
We
are also in the process of developing a product we call NEXDerm which will be an adhesive tape designed to secure central lines and intravenous
tubes and devices to patients before, during and after medical treatment. We believe NEXDerm will be an attractive alternative to Tegaderm™,
a 3M Healthcare product. Based on our discussion with medical professionals, Tegaderm™ is often difficult and painful to remove
after adhesion, particularly for comprised skin patients. NEXDerm, which will incorporate exclusively licensed technology owned by Noble
Fiber, is designed to create a gentle to skin surgical tape impregnated with antimicrobial X-Static® silver fiber. We believe NEXDerm,
if successfully developed, will offer the following advantages over Tegaderm™: (i) ability to easily reposition the adhesive tape;
(ii) pain-free removal; (iii) gentle to the skin; and (iv) increased infection prevention. As with NEXDrape, we intend to file a 510(k)
premarket submission with the FDA to demonstrate that NEXDrape is as safe and effective (or substantially equivalent to) a legally marketed
surgical drape device. There can be no guarantee that the FDA approves our application, if submitted.
We
are also in the early stages of exploring opportunities to develop a number of other potential medical devices. Our current intent with
any medical devices will not be to commercialize due to the expense required but to potentially prepare them to go to market and to identify
and pursue licensing and partnering arrangements with third parties possessing the necessary resources and capabilities to bring the
devices to market.
Implications
of Being an Emerging Growth Company and a Smaller Reporting Company
We
qualify as an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”)
enacted in April 2012. An “emerging growth company” may take advantage of exemptions from some of the reporting requirements
that are otherwise applicable to public companies. These exceptions include:
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being
permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and
Analysis of Financial Condition and Results of Operations in this prospectus; |
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not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (the
“Sarbanes-Oxley Act”); |
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reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and |
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exemptions
from the requirements to hold a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
In
addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with
new or revised accounting standards. We have elected not to take advantage of the benefits of this exemption and our election is irrevocable.
Therefore, we will not be able to take advantage of this exemption at any time in the future.
Finally,
we are a “smaller reporting company” (and may continue to qualify as such even after we no longer qualify as an emerging
growth company) and accordingly may provide less public disclosure than larger public companies. As a result, the information that we
provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
Corporate
information
We
were incorporated in Delaware on January 13, 2009. Our principal executive offices are located at 2150 Cabot Blvd West, Suite B, Langhorne,
Pennsylvania 19047. Our telephone number is (215) 702-8550. Our website address is www.nexgel.com. The information contained on
our website is not part of this prospectus. We have included our website address as a factual reference and do not intend it to be an
active link to our website.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should consider the risks, uncertainties and assumptions described under
Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as well as
subsequently filed Quarterly Reports on Form 10-Q, which risk factors are incorporated herein by reference, and may be amended, supplemented
or superseded from time to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular
offering. The risks and uncertainties we have described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022
and subsequent Quarterly Reports on Form 10-Q are not the only ones we face. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also affect our operations. The occurrence of any of these known or unknown risks might cause
you to lose all or part of your investment in the offered securities.
CAUTIONARY
NOTES REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements that involve substantial risks and uncertainties. All statements contained in this prospectus
and/or any applicable prospectus supplement other than statements of historical facts, including statements regarding our strategy, future
operations, future financial position, future revenue, projected costs, prospects, plans, objectives of management and expected market
growth, are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important factors that
may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements
expressed or implied by the forward-looking statements.
The
words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,”
“plan,” “predict,” “project,” “target,” “potential,” “will,”
“would,” “could,” “should,” “continue,” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. These forward-looking statements
include, among other things, statements about:
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our
ability to continue as a going concern; |
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inadequate
capital; |
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inadequate
or an inability to raise sufficient capital to execute our business plan; |
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our
ability to comply with current good manufacturing practices; |
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loss
or retirement of key executives; |
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our
plans to make significant additional outlays of working capital before we expect to generate significant revenues and the uncertainty
regarding when we will begin to generate significant revenues, if we are able to do so; |
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adverse
economic and geopolitical conditions, including the current conflict in Ukraine, and/or intense competition; |
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loss
of a key customer or supplier; |
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entry
of new competitors; |
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adverse
federal, state and local government regulation; |
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technological
obsolescence of our manufacturing process and equipment; |
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technical
problems with our research and products; |
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risks
of mergers and acquisitions including the time and cost of implementing transactions and the potential failure to achieve expected
gains, revenue growth or expense savings; |
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price
increases for supplies and components; |
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the
inability to carry out our business plans; and |
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other
risks and uncertainties, including those described under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and subsequent Quarterly Reports on Form 10-Q, which risk factors are incorporated
herein by reference |
These
forward-looking statements are only predictions and we may not actually achieve the plans, intentions or expectations disclosed in our
forward-looking statements, so you should not place undue reliance on our forward-looking statements. Actual results or events could
differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we make. We have based these
forward-looking statements largely on our current expectations and projections about future events and trends that we believe may affect
our business, financial condition and operating results. We have included important factors in the cautionary statements included in
this prospectus, as well as certain information incorporated by reference into this prospectus, that could cause actual future results
or events to differ materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential
impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make.
You
should read this prospectus with the understanding that our actual future results may be materially different from what we expect. We
do not assume any obligation to update any forward-looking statements whether as a result of new information, future events or otherwise,
except as required by applicable law.
USE
OF PROCEEDS
Unless
otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities under this
prospectus for general corporate purposes and to in-license, acquire or invest in complementary businesses, technologies, products or
assets. However, we have no current commitments or obligations to do so. We may set forth additional information on the use of proceeds
from the sale or the securities we offer under this prospectus in a prospectus supplement relating to the specific offering. We cannot
currently allocate specific percentages of the net proceeds that we may use for the purposes specified above. As a result, our management
will have broad discretion in the allocation of the net proceeds. Pending the application of the net proceeds, we intend to invest the
net proceeds in short- and intermediate-term, interest-bearing obligations, investment-grade instruments, certificates of deposit or
direct or guaranteed obligations of the U.S. government.
DESCRIPTION
OF OUR CAPITAL STOCK
General
Our
authorized capital stock consists of 25,000,000 shares of common stock, $0.001 par value per share, and 5,000,000 shares of “blank
check” preferred stock, $0.001 par value per share. The following is a description of our common stock and certain provisions of
our certificate of incorporation, as amended (“Certificate”), and our amended and restated bylaws (“Bylaws”),
and certain provisions of Delaware law.
As
of March 31, 2023, there were issued and outstanding or reserved for issuance:
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5,614,028
shares of common stock outstanding held by approximately 1,175 stockholders of record; |
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542,469
shares of common stock issuable upon the exercise of outstanding stock options at a weighted average exercise price of $2.3401 per
share; |
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3,557,190
shares of common stock issuable upon the exercise of warrants at a weighted average exercise price of approximately $5.2566; and |
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237,027
shares of common stock reserved for future issuance under the NexGel, Inc. 2019 Long-Term Incentive Plan, as amended. |
Common
Stock
This
section describes the general terms of our common stock that we may offer from time to time. For more detailed information, a holder
of our common stock should refer to our Certificate and our Bylaws.
Except
as otherwise expressly provided in our Certificate, or as required by applicable law, all shares of our common stock have the same rights
and privileges and rank equally, share ratably and are identical in all respects as to all matters, including, without limitation, those
described below. All outstanding shares of common stock are fully paid and nonassessable.
Voting
Rights
Each
holder of our common stock is entitled to cast one vote for each share of common stock held on all matters submitted to a vote of stockholders.
Cumulative voting for election of directors is not allowed under our Certificate, which means that a plurality of the shares voted can
elect all of the directors then outstanding for election. Except as otherwise provided under Delaware law or our Certificate, and Bylaws,
on matters other than election of directors, action on a matter is approved if the votes cast favoring the action exceed the votes cast
opposing the action.
Dividend
Rights
The
holders of outstanding shares of our common stock are entitled to receive dividends out of funds legally available, if our board of directors,
in its discretion, determines to issue dividend, and only at the times and in the amounts that our board of directors may determine.
Our board of directors is not obligated to declare a dividend.
Liquidation
Rights
Upon
our liquidation, dissolution or winding-up, the holders of our common stock will be entitled to share equally, identically and ratably
in all assets remaining, subject to the prior satisfaction of all outstanding debt and liabilities and the preferential rights and payment
of liquidation preferences, if any, on any outstanding shares of preferred stock.
No
Preemptive or Similar Rights
Our
common stock is not subject to conversion, redemption, sinking fund or similar provisions.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, New York, New York.
Preferred
Stock
This
section describes the general terms and provisions of our outstanding shares of preferred stock, as well as preferred stock that we may
offer from time to time. The applicable prospectus supplement will describe the specific terms of the shares of preferred stock offered
through that prospectus supplement, which may differ from the terms we describe below. We will file a copy of the certificate of designation
that contains the terms of each new series of preferred stock with the SEC each time we issue a new series of preferred stock, and these
certificates of designation will be incorporated by reference into the registration statement of which this prospectus is a part. Each
certificate of designation will establish the number of shares included in a designated series and fix the designation, powers, privileges,
preferences and rights of the shares of each series as well as any applicable qualifications, limitations or restrictions. A holder of
our preferred stock should refer to the applicable certificate of designation, our Certificate and the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to be provided to you) for more specific information.
We
are authorized, subject to limitations prescribed by Delaware law, to issue up to 5,000,000 shares of preferred stock in one or more
series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences
and rights of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors can increase
or decrease the number of shares of any series, but not below the number of shares of that series then outstanding, without any further
vote or action by our stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights
that could adversely affect the voting power or other rights of the holders of the common stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect
of delaying, deferring or preventing a change in control of the Company and may adversely affect the market price of our common stock
and the voting and other rights of the holders of our common stock.
Outstanding
Series of Preferred Stock
Currently,
there are no shares our preferred stock outstanding or designated.
Shares
of Preferred Stock Issuable Pursuant to this Prospectus
We
will incorporate by reference as an exhibit to the registration statement, which includes this prospectus, the form of any certificate
of designation that describes the terms of the series of preferred stock we are offering. This description and the applicable prospectus
supplement will include:
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the
title and stated value; |
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the
number of shares authorized; |
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the
liquidation preference per share; |
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the
purchase price; |
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the
dividend rate, period and payment date, and method of calculation for dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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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 such redemption and repurchase
rights; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period; |
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period; |
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voting
rights, if any, of the preferred stock; |
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preemptive
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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a
discussion of any material United States federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
When
we issue shares of preferred stock under this prospectus, the shares will fully be paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
DESCRIPTION
OF OUR DEBT SECURITIES
This
section describes the general terms and provisions of debt securities that we may issue 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. While the terms we have summarized
below will apply generally to any future debt securities we may offer under this prospectus, the applicable prospectus supplement or
free writing prospectus will describe the specific terms of any debt securities offered through that prospectus supplement or free writing
prospectus. The terms of any debt securities we offer under a prospectus supplement or free writing prospectus may differ from the terms
we describe below. Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to
any supplemental indentures that specify the terms of a particular series of debt securities.
In
the event that we issue any debt securities, we will issue such senior debt securities under a senior indenture that we will enter into
with the trustee named in such senior indenture. We will file forms of these documents as exhibits 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
indentures will be qualified under the Trust Indenture Act of 1939, as amended, (the “Trust Indenture Act”). We use the term
“trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of potential senior debt securities, subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt
securities. We urge you to read the applicable prospectus supplement or free writing prospectus and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete applicable indenture that contains the
terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are
identical.
General
We
will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of debt securities being offered,
including:
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title; |
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding; |
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any
limit on the amount that may be issued; |
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depository will be; |
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the
maturity date; |
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United
States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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the
annual interest rate, 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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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the
terms of the subordination of any series of subordinated debt; |
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the
place where payments will be payable; |
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restrictions
on transfer, sale or other assignment, if any; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; the date, if any, after which, the
conditions upon which, and the price 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, if any, on which, and the price 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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whether
the indenture will restrict our ability or the ability of our subsidiaries to: |
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incur
additional indebtedness; |
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issue
additional securities; |
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create
liens; |
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries; |
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redeem
capital stock; |
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
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make
investments or other restricted payments; |
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sell
or otherwise dispose of assets; |
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enter
into sale-leaseback transactions; |
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in transactions with stockholders or affiliates; |
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or sell stock of our subsidiaries; or |
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effect
a consolidation or merger; |
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities; |
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information
describing any book-entry features; |
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provisions
for a sinking fund purchase or other analogous fund, if any; |
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the
applicability of the provisions in the indenture on discharge; |
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; |
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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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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;
and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events
of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under
applicable laws or regulations or advisable in connection with the marketing of the debt securities. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement or free writing prospectus the terms on which a series of debt securities may
be convertible into or exchangeable for our common stock, our preferred stock or other securities (including securities of a third-party).
We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities
of a third-party) 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 or free writing prospectus applicable to a particular series of debt securities, the
indentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose
of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for other securities
of ours or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make
provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they
had converted the debt securities before the consolidation, merger or sale.
Events
of Default Under the Indenture
Unless
we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the
following are events of default under the indentures with respect to any series of debt securities that we may issue:
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we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended; |
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase
or otherwise, and the time for payment has not been extended; |
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the 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. |
We
will describe in each applicable prospectus supplement or free writing prospectus any additional events of default relating to the relevant
series of debt securities.
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,
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 unpaid principal, premium, if any, 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 indentures, 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 or security satisfactory to it against any
loss, liability or expense. 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. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies 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,
and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as trustee; 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. |
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, or other defaults that may be specified in the applicable prospectus supplement or free
writing prospectus.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture; |
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to
comply with the provisions described above under “Description of Our Debt Securities—Consolidation, Merger or Sale;” |
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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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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
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under
“Description of Our 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 hereunder by a successor trustee; |
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose; |
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to
add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the holders, 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 to us in the indenture; or |
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series. |
In
addition, under the indentures, 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, subject to the terms of the indenture for any series of debt securities that we may issue or as otherwise provided
in the prospectus supplement or free writing prospectus 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 stated maturity of the series of debt securities; |
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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 or repurchase 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. |
Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement or
free writing prospectus applicable to a particular series of debt securities, 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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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. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
In
the event that we issue debt securities, we will issue such debt securities of each series only in fully registered form without coupons
and, unless we otherwise specify in the applicable prospectus supplement or free writing prospectus, in denominations of $1,000 and any
integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form
and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depository named by
us and identified in a prospectus supplement or free writing prospectus with respect to that series.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement or free writing prospectus, 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 indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement
or free writing prospectus, 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 make 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 or free writing prospectus 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. |
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 indentures at the request of any
holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it
might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement or free writing prospectus, 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 or free writing prospectus, 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 or free writing prospectus, 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 or free writing prospectus
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
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of Delaware, except to
the extent that the Trust Indenture Act is applicable.
Ranking
of Debt Securities
The
subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement or free writing prospectus. The subordinated indenture does not limit the amount of subordinated
debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit
the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF OUR WARRANTS
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing prospectus,
summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to
purchase common stock, preferred stock and/or debt securities in one or more series. Warrants may be offered independently or together
with common stock, preferred stock and/or debt securities offered by any prospectus supplement or free writing prospectus, and may be
attached to or separate from those securities. While the terms we have summarized below will generally apply to any future warrants we
may offer under this prospectus, we will describe the particular terms of any warrants that we may offer in more detail in the applicable
prospectus supplement or free writing prospectus. The terms of any warrants we offer under a prospectus supplement or free writing prospectus
may differ from the terms we describe below.
In
the event that we issue warrants, we will issue the warrants under a warrant agreement which we will enter into with a warrant agent
to be selected by us. Forms of these warrant agreements and forms of the warrant certificates representing the warrants, and the complete
warrant agreements and forms of warrant certificates containing the terms of the warrants being offered, will be filed as exhibits to
the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the
SEC. We use the term “warrant agreement” to refer to any of these warrant agreements. We use the term “warrant agent”
to refer to the warrant agent under any of these warrant agreements. The warrant agent will act solely as an agent of ours in connection
with the warrants and will not act as an agent for the holders or beneficial owners of the warrants.
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 applicable to a particular series of warrants. We urge you to read the applicable
prospectus supplements or free writing prospectus related to the warrants that we sell under this prospectus, as well as the complete
warrant agreements that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement or free writing prospectus the terms relating to a series of warrants. If warrants
for the purchase of debt securities are offered, the prospectus supplement or free writing prospectus will describe the following terms,
to the extent applicable:
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the
offering price and the aggregate number of warrants offered; |
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the
currencies in which the warrants are being offered; |
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the
designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities that can be purchased
if a holder exercises a warrant; |
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the
designation and terms of any series of debt securities with which the warrants are being offered and the number of warrants offered
with each such debt security; |
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the
date on and after which the holder of the warrants can transfer them separately from the related series of debt securities; |
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the
principal amount of the series of debt securities that can be purchased if a holder exercises a warrant and the price at which and
currencies in which such principal amount may be purchased upon exercise; |
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the
terms of any rights to redeem or call the warrants; |
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the
date on which the right to exercise the warrants begins and the date on which such right expires; |
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federal
income tax consequences of holding or exercising the warrants; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
If
warrants for the purchase of common stock or preferred stock are offered, the prospectus supplement or free writing prospectus will describe
the following terms, to the extent applicable:
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the
offering price and the aggregate number of warrants offered; |
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the
total number of shares that can be purchased if a holder of the warrants exercises them and, in the case of warrants for preferred
stock, the designation, total number and terms of the series of preferred stock that can be purchased upon exercise; |
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the
designation and terms of any series of preferred stock with which the warrants are being offered and the number of warrants being
offered with each share of common stock or preferred stock; |
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the
date on and after which the holder of the warrants can transfer them separately from the related common stock or series of preferred
stock; |
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the
number of shares of common stock or preferred stock that can be purchased if a holder exercises the warrant and the price at which
such common stock or preferred stock may be purchased upon exercise, including, if applicable, any provisions for changes to or adjustments
in the exercise price and in the securities or other property receivable upon exercise; |
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the
terms of any rights to redeem or call, or accelerate the expiration of, the warrants; |
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the
date on which the right to exercise the warrants begins and the date on which that right expires; |
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federal
income tax consequences of holding or exercising the warrants; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
Exercise
of Warrants
Each
holder of a warrant is entitled to purchase the principal amount of debt securities or number of shares of common stock or preferred
stock, as the case may be, at the exercise price described in the applicable prospectus supplement or free writing prospectus. After
the close of business on the day when the right to exercise terminates (or a later date if we extend the time for exercise), unexercised
warrants will become void.
A
holder of warrants may exercise them by following the general procedure outlined below:
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delivering
to the warrant agent the payment required by the applicable prospectus supplement or free writing prospectus to purchase the underlying
security; |
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properly
completing and signing the reverse side of the warrant certificate representing the warrants; and |
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delivering
the warrant certificate representing the warrants to the warrant agent within five business days of the warrant agent receiving payment
of the exercise price. |
If
you comply with the procedures described above, your warrants will be considered to have been exercised when the warrant agent receives
payment of the exercise price, subject to the transfer books for the securities issuable upon exercise of the warrant not being closed
on such date. After you have completed those procedures and subject to the foregoing, we will, as soon as practicable, issue and deliver
to you the debt securities, common stock or preferred stock that you purchased upon exercise. If you exercise fewer than all of the warrants
represented by a warrant certificate, a new warrant certificate will be issued to you for the unexercised amount of warrants. Holders
of warrants will be required to pay any tax or governmental charge that may be imposed in connection with transferring the underlying
securities in connection with the exercise of the warrants.
Amendments
and Supplements to the Warrant Agreements
We
may amend or supplement a warrant agreement without the consent of the holders of the applicable warrants to cure ambiguities in the
warrant agreement, to cure or correct a defective provision in the warrant agreement, or to provide for other matters under the warrant
agreement that we and the warrant agent deem necessary or desirable, so long as, in each case, such amendments or supplements do not
materially adversely affect the interests of the holders of the warrants.
Warrant
Adjustments
Unless
the applicable prospectus supplement or free writing prospectus states otherwise, the exercise price of, and the number of securities
covered by, a common stock warrant or preferred stock warrant will be adjusted proportionately if we subdivide or combine our common
stock or preferred stock, as applicable. In addition, unless the prospectus supplement or free writing prospectus states otherwise, if
we, without receiving payment:
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issue
capital stock or other securities convertible into or exchangeable for common stock or preferred stock, or any rights to subscribe
for, purchase or otherwise acquire any of the foregoing, as a dividend or distribution to holders of our common stock or preferred
stock; |
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pay
any cash to holders of our common stock or preferred stock other than a cash dividend paid out of our current or retained earnings
or other than in accordance with the terms of the preferred stock; |
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issue
any evidence of our indebtedness or rights to subscribe for or purchase our indebtedness to holders of our common stock or preferred
stock; or |
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issue
common stock or preferred stock or additional stock or other securities or property to holders of our common stock or preferred stock
by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement, |
then
the holders of common stock warrants and preferred stock warrants, as applicable, will be entitled to receive upon exercise of the warrants,
in addition to the securities otherwise receivable upon exercise of the warrants and without paying any additional consideration, the
amount of stock and other securities and property such holders would have been entitled to receive had they held the common stock or
preferred stock, as applicable, issuable under the warrants on the dates on which holders of those securities received or became entitled
to receive such additional stock and other securities and property.
Except
as stated above or as otherwise set forth in the applicable prospectus supplement or free writing prospectus, the exercise price and
number of securities covered by a common stock warrant and preferred stock warrant, and the amounts of other securities or property to
be received, if any, upon exercise of those warrants, will not be adjusted or provided for if we issue those securities or any securities
convertible into or exchangeable for those securities, or securities carrying the right to purchase those securities or securities convertible
into or exchangeable for those securities.
Holders
of common stock warrants and preferred stock warrants may have additional rights under the following circumstances:
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certain
reclassifications, capital reorganizations or changes of the common stock or preferred stock, as applicable; |
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certain
share exchanges, mergers, or similar transactions involving us and which result in changes of the common stock or preferred stock,
as applicable; or |
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certain
sales or dispositions to another entity of all or substantially all of our property and assets. |
If
one of the above transactions occurs and holders of our common stock or preferred stock are entitled to receive stock, securities or
other property with respect to or in exchange for their securities, the holders of the common stock warrants and preferred stock warrants
then outstanding, as applicable, will be entitled to receive upon exercise of their warrants the kind and amount of shares of stock and
other securities or property that they would have received upon the applicable transaction if they had exercised their warrants immediately
before the transaction.
DESCRIPTION
OF OUR RIGHTS
We
may issue rights for the purchase of shares of our common stock or shares of our preferred stock. Each series of rights will be issued
under a separate rights agreement which we will enter into with a bank or trust company, as rights agent, all as set forth in the applicable
prospectus supplement. The rights agent will act solely as our agent in connection with the certificates relating to the rights and will
not assume any obligation or relationship of agency or trust with any holders of rights certificates or beneficial owners of rights.
We will file the rights agreement and the rights certificates relating to each series of rights with the SEC and incorporate them by
reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of rights.
The
applicable prospectus supplement will describe the terms of any rights we issue, including as applicable:
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the
date for determining the persons entitled to participate in the rights distribution; |
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the
aggregate number or amount of underlying securities purchasable upon exercise of the rights and the exercise price; |
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the
aggregate number of rights being issued; |
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the
date, if any, on and after which the rights may be transferable separately; |
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the
date on which the right to exercise the rights commences and the date on which such right expires; |
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the
designation and terms of any securities with which the warrants are issued; |
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a
discussion of any material or special U.S. federal income tax considerations applicable to the rights; and |
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any
other terms of the rights, including the terms, procedures and limitations relating to the distribution, exchange and exercise of
the rights. |
Rights
will be exercisable for U.S. dollars only and will be in registered form only.
DESCRIPTION
OF OUR UNITS
This
section outlines some of the provisions of the units and the unit agreements. This information may not be complete in all respects and
is qualified entirely by reference to the unit agreement with respect to the units of any particular series. The specific terms of any
series of units will be described in the applicable prospectus supplement or free writing prospectus. If so described in a particular
prospectus supplement or free writing prospectus, the specific terms of any series of units may differ from the general description of
terms presented below.
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, shares of preferred
stock, debt securities, warrants, rights or any combination of such securities.
The
applicable prospectus supplement will specify the following terms of any units in respect of which this prospectus is being delivered:
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the
terms of the units and of any of the shares of common stock, shares of preferred stock, debt securities, or warrants comprising the
units, including whether and under what circumstances the securities comprising the units may be traded separately; |
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a
description of the terms of any unit agreement governing the units; |
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if
appropriate, a discussion of material U.S. federal income tax considerations; and |
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a
description of the provisions for the payment, settlement, transfer or exchange of the units. |
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
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through
agents to the public or to investors; |
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to
underwriters for resale to the public or to investors; |
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negotiated
transactions; |
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block
trades; |
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directly
to investors; or |
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through
a combination of any of these methods of sale. |
As
set forth in more detail below, the securities may be distributed 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 |
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at
negotiated prices. |
We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
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the
name or names of any agents or underwriters; |
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the
purchase price of the securities being offered 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
initial public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
securities exchanges or markets on which such securities may be listed. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent and the underwriters will be obligated to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment
option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the 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, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by 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.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly and then resell the securities, may be
deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the securities by
them may be deemed to be underwriting discounts and commissions under the Securities Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection
with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus supplement, sell securities
covered by this prospectus and the applicable prospectus supplement. If so, the third party may use securities borrowed from us or others
to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities
covered by this prospectus and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event
of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement or in
a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves
the sale by persons participating in the offering of more securities than have been sold to them by us. In those circumstances, such
persons would cover such over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option
granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating
in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise
prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction
as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on the NYSE American. We may elect to list any other class or series of
securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters may make a market
in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any
time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with the
Exchange Act or Regulation M under the Exchange Act. 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 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 these activities at any time.
Any
underwriters who are qualified market makers on the NYSE American may engage in passive market making transactions in the securities
on the NYSE American 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.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by Quick Law Group PC, Boulder, Colorado. Certain legal matters
will passed upon for any underwriters, dealers or agents by the law firm identified as counsel to such underwriters, dealers or agents
in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of NexGel, Inc. and subsidiaries as of and for the years ended December 31, 2022 and 2021 have been
incorporated by reference in this prospectus and elsewhere in the registration statement have been incorporated by reference in reliance
upon the report of Turner, Stone & Company, LLP, independent registered public accountants, upon the authority of said firm as experts
in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a public company and file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read
and copy any document we file at the SEC’s public reference room at 100 F Street, NE, Washington, D.C. 20549. You can request copies
of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information
about the operation of the public reference room. Our SEC filings are also available, at no charge, to the public at the SEC’s
website at http://www.sec.gov.
We
announce material financial information to our investors using our investor relations website, SEC filings, investor events, news and
earnings releases, public conference calls, webcasts and social media. We use these channels to communicate with our investors and the
public about our company, our products and services and other related matters. It is possible that information we post on some of these
channels could be deemed to be material information. Therefore, we encourage investors, the media and others interested in our company
to review the information we post to all of our channels, including our social media accounts.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
following documents filed by us with the SEC are incorporated by reference in this prospectus:
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed on March 28, 2023; |
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Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2023, filed on May 15, 2023; |
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Definitive
Proxy Statement on Schedule 14A for 2023 Annual Meeting of Stockholders, filed on April 27, 2023; |
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Current
Report on Form 8-K, filed on January 6, 2023; |
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Current
Report on Form 8-K, filed on January 17, 2023; |
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Current
Report on Form 8-K, filed on March 2, 2023; |
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Current
Report on Form 8-K, filed on March 27, 2023; |
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Current
Report on Form 8-K, filed on May 15, 2023; and |
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The
description of our common stock contained in the Registration Statement on Amendment No.3 to Form S-1 filed pursuant to Section 12
of the Exchange Act on December 10, 2021, including any amendment or report filed with the SEC for the purpose of updating this description.
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We
also incorporate by reference all documents we file pursuant to Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any portions
of filings that are furnished rather than filed pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the date of the
initial registration statement of which this prospectus is a part and prior to effectiveness of such registration statement. All documents
we file in the future pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to
the termination of the offering are also incorporated by reference and are an important part of this prospectus.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information
that has been incorporated by reference in the prospectus but not delivered with the prospectus. You may request a copy of these filings,
excluding the exhibits to such filings which we have not specifically incorporated by reference in such filings, at no cost, by writing
to or calling us at:
NexGel,
Inc.
Attn:
Corporate Secretary
2150
Cabot Blvd West, Suite B
Langhorne,
PA 19047
(215)
702 8550
This
prospectus is part of a registration statement we filed with the SEC. You should only rely on the information or representations contained
in this prospectus and any accompanying prospectus supplement. We have not authorized anyone to provide information other than that provided
in this prospectus and any accompanying prospectus supplement. We are not making an offer of the securities in any state where the offer
is not permitted. You should not assume that the information in this prospectus or any accompanying prospectus supplement is accurate
as of any date other than the date on the front of the document.
NEXGEL,
INC.
222,000
Units Consisting 444,000 Shares of Common Stock
Warrants
to Purchase 222,000 Shares of Common Stock
PROSPECTUS
Alere
Financial Partners, LLC (A division of Cova Capital Partners, LLC)
NexGel (NASDAQ:NXGL)
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