As
filed with the Securities and Exchange Commission on March 30, 2022 |
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Registration
No. 333-262671 |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Pre-Effective Amendment No. 1
to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
POLARITYTE,
INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware |
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06-1529524 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
1960
S. 4250 West, Salt Lake City, UT 84104
Telephone:
(800) 560-3983
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Mark
E. Lehman
Chief
Legal Officer
PolarityTE,
Inc.
1960
S. 4250 West, Salt Lake City, UT 84104
(385)
266-3151
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Laura
I. Bushnell
Trevor G. Pinkerton
King
& Spalding LLP
601
South California Avenue, Suite 100
Palo
Alto, CA 94304
(650)
422-6713
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box: ☒
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer ☐ |
|
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
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Smaller
reporting company ☒ |
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Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective
on such date as the Commission acting pursuant to said Section 8(a), may determine.
The
Registrant has an existing registration statement on Form S-3 (File No. 333-229584) that was declared effective on February 22, 2019,
and which was scheduled to expire on February 21, 2022, pursuant to Rule 415(a)(5) under the Securities Act. Pursuant to Rule
415(a)(6) promulgated under the Securities Act, the filing fees previously paid in connection with the securities being registered hereunder
will continue to be applied to such securities. In accordance with Rule 415(a)(5) and Rule 415(a)(6), the Registrant may continue to
offer and sell the securities covered by the existing registration statement during the grace period afforded by Rule 415(a)(5). If the
Registrant sells any securities being registered hereunder during the grace period, the Registrant will identify in a pre-effective amendment
to this registration statement the new amount of securities to be carried forward to this registration statement in reliance upon Rule
415(a)(6).
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to
buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS
(Subject to Completion) |
Dated
March 30, 2022 |
$185,664,155
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
We
may from time-to-time issue, in one or more series or classes, up to $185,664,155 in aggregate principal amount of our common
stock, preferred stock, debt securities, warrants or rights in one or more offerings. We may offer these securities separately or together
in units. We may also offer common stock or preferred stock upon conversion of or exchange for the debt securities; common stock upon
conversion of or exchange for preferred stock; or common stock, preferred stock or debt securities upon the exercise of warrants or rights.
We will specify in a supplement to this prospectus the terms of the securities being offered. We may sell these securities to or through
underwriters, to other purchasers or through agents. We will set forth the names of any underwriters or agents, and any fees, conversions
or discount arrangements, in the prospectus supplement. We may not sell any securities under this prospectus without delivery of the
applicable prospectus supplement.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “PTE.” On February 9, 2022, the closing price for our
common stock, as reported on The Nasdaq Capital Market, was $0.49 per share. Our principal executive office is located at 1960 S. 4250
West, Salt Lake City, UT 84104. Our telephone number is (800) 560-3983.
The aggregate market value of our outstanding
common stock held by non-affiliates was approximately $38,207,762, which was calculated based on 77,975,025 shares
of outstanding common stock held by non-affiliates as of February 9, 2022, and a price per share of $0.49, the closing
price of our common stock on February 9, 2022. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
pursuant to this registration statement with a value 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 common stock held by non-affiliates is less than $75.0 million.
In the event that subsequent to the effective date of this registration statement, the aggregate market value of our outstanding common
stock held by non-affiliates equals or exceeds $75.0 million, then the one-third limitation on sales shall not apply to additional sales
made pursuant to this registration statement. We have not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during
the 12 calendar months prior to, and including, the date of this registration statement.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading
“Risk Factors” contained in this prospectus beginning on page 5 and any applicable prospectus supplement, and
under similar headings in the other documents that are incorporated by reference into this prospectus.
This
prospectus may not be used to offer or sell securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this Prospectus is _________________, 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the United States Securities and Exchange Commission (the “SEC”),
using a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination
of the securities described in this prospectus in one or more offerings up to a total amount of $185,664,155.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one
or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may
also add, update or change information contained in this prospectus. You should read both this prospectus and the accompanying prospectus
supplement together with the additional information described under the heading “Where You Can Find More Information” beginning
on page 26 of this prospectus.
You
should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement
or in any related free writing prospectus filed by us with the SEC. We have not authorized anyone to provide you with different information.
This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy
any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation
of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information
appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus
is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed
materially since those dates.
Unless
the context otherwise indicates, references in this prospectus to “PolarityTE,” the “Company,” “we,”
“us,” and “our” refer, collectively, to PolarityTE, Inc., a Delaware corporation, and its subsidiaries.
We
use various trademarks and trade names in our business, including without limitation our corporate name and logo. All other trademarks
or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and
trade names in this prospectus may be referred to without the ® and ™ symbols, but such references should not be construed
as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider the risks described in the documents incorporated by
reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by reference into
this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or
results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities
could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and
the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results
could differ materially from those anticipated in these forward-looking statements because of certain factors, including the risks described
in the documents incorporated herein by reference, including our annual report on Form 10-K for the fiscal year ended December 31, 2020,
and any subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed (and
not furnished) by us with the SEC that are deemed incorporated by reference into this prospectus.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including the documents that we incorporate by reference, may contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”).
Forward-looking
statements in this prospectus and any accompanying prospectus supplement give our current expectations or forecasts of future events.
You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but
not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,”
“anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,”
“should,” “could,” “may” or other similar expressions in this prospectus and any prospectus supplement.
In particular, forward-looking statements include statements relating to future actions, prospective products and applications, customers,
technologies, future performance, or future financial results. These forward-looking statements are subject to certain risks and uncertainties
that could cause actual results to differ materially from our historical experience and our present expectations or projections. Factors
that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:
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the
timing or success of obtaining regulatory licenses or approvals for initiating clinical trials or marketing our products; |
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the
initiation, timing, progress, and results of our pre-clinical studies or clinical trials; |
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sufficiency
of our working capital to fund our operations in the near and long term, which could raise doubt about our ability to continue as
a going concern; |
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infrastructure
required to support operations in future periods, including the expected costs thereof; |
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estimates
associated with revenue recognition, asset impairments, and cash flows; |
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variance
in our estimates of future operating costs; |
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future
vesting and forfeitures of compensatory equity awards; |
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the
effectiveness of our disclosure controls and our internal control over financial reporting; |
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the
impact of new accounting pronouncements; |
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size
and growth of our target markets; and |
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the
initiation, timing, progress, and results of our research and development programs. |
Factors
that may cause actual results to differ materially from those contemplated by such forward-looking statements include, without limitation:
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the
ability to comply with regulations applicable to the delivery of our services; |
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the
ability to meet demand for our services; |
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the
ability to deliver our services if employees are quarantined due to the impact of COVID-19; |
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the
scope of protection we can establish and maintain for intellectual property rights covering our product candidates and technology; |
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developments
relating to our competitors and industry; |
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new
discoveries or the development of new therapies or technologies that render our products or services obsolete or unviable; |
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outbreaks
of disease, including the COVID-19 pandemic, and related stay-at-home orders, quarantine policies and restrictions on travel, trade,
and business operations; |
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political
and economic instability, whether resulting from natural disasters, wars, terrorism, pandemics, or other sources; |
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the
ability to gain adoption by healthcare providers of our products for patient care; |
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the
ability to find and retain skilled personnel; |
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the
need for, and ability to obtain, additional financing in the future; |
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general
economic conditions; |
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inaccuracies
in estimates of our expenses, future revenues, and capital requirements; |
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future
accounting pronouncements; and |
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unauthorized
access to confidential information and data on our information technology systems and security and data breaches. |
Although
we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels
of activity, performance, or achievements. The forward-looking statements are based upon management’s beliefs and assumptions and
are made as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements included
in this prospectus to conform such statements to actual results or changes in our expectations. You should not place undue reliance on
these forward-looking statements.
THE
COMPANY
The
following summary highlights selected information contained in this prospectus. This summary does not contain all the information you
should consider before investing in the securities. Before making an investment decision, you should read the entire prospectus carefully.
Overview
PolarityTE,
Inc., headquartered in Salt Lake City, Utah, is a biotechnology company developing regenerative tissue products and biomaterials. Our
first regenerative tissue product is SkinTE. On July 23, 2021, we submitted an investigational new drug application (“IND”)
for SkinTE to the U.S. Food and Drug Administration (the “FDA”) through our subsidiary, PolarityTE MD, Inc., as the first
step in the regulatory process for obtaining licensure for SkinTE under Section 351 of the Public Health Service Act. The FDA subsequently
issued clinical hold correspondence to us identifying certain issues that needed to be addressed before the IND could be approved. We
provided responses to the FDA, and on January 14, 2022, the FDA notified us that the clinical hold had been removed. The IND approval
enables us to commence the first of two expected pivotal studies needed to support a biologics license application seeking a chronic
cutaneous ulcer indication for SkinTE.
Beginning
in 2017 we developed internally a laboratory and research capability to advance the development of SkinTE and related technologies, which
we operate through our subsidiary, Arches Research, Inc. (“Arches”). At the beginning of May 2018, we acquired a preclinical
research and veterinary sciences business to be used, in part, for preclinical studies on our regenerative tissue products, which we
operate through our subsidiary IBEX Preclinical Research, Inc. (“IBEX”). Through Arches and IBEX, we also offered research
and laboratory testing services to unrelated third parties on a contract basis.
Company
Background
Majesco
Entertainment Company, a Delaware corporation (“Majesco DE”), was incorporated in the state of Delaware on May 8, 1998. On
December 1, 2016, Majesco Acquisition Corp., a Nevada corporation and wholly owned subsidiary of Majesco DE, entered into an Agreement
and Plan of Reorganization with PolarityTE, Inc., a Nevada corporation (“Polarity NV”) and the sole stockholder of Polarity
NV. The asset acquisition was subject to stockholder approval, which was received on March 10, 2017, and the transaction closed on April
7, 2017. In January 2017, Majesco DE changed its name to “PolarityTE, Inc.” (“Polarity”). Majesco Acquisition
Corp. was then merged with Polarity NV, which remains a subsidiary of Polarity. Majesco Acquisition Corp. II, formed in November 2016
under Majesco Entertainment Company, changed its name to “PolarityTE MD, Inc.,” and remains a wholly owned subsidiary of
Polarity. In May 2018, Polarity acquired assets of a preclinical research and veterinary sciences business and related real estate,
which Polarity now operates through IBEX.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes unless otherwise
indicated in the applicable prospectus supplement. General corporate purposes may include research and development and clinical development
costs to support the advancement of our product candidates and the expansion of our product candidate pipeline; repayment and refinancing
of debt; working capital; and capital expenditures. We may also use a portion of the net proceeds to acquire or invest in businesses,
products, and technologies that are complementary to our own, although we have no commitments or agreements with respect to any acquisitions
as of the date of this prospectus. Pending these uses, we may invest the net proceeds in a variety of capital preservation instruments,
including short-term, investment-grade, interest-bearing instruments and U.S. government securities, or may hold such proceeds as cash,
until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes.
As a result, management will retain broad discretion over the allocation of net proceeds.
SECURITIES
WE MAY OFFER
This
prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not meant to
be complete descriptions of each security. The terms of any security will be described in the applicable prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our common stock and preferred stock, together with the additional information we include in any applicable
prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under
this prospectus. The following description of our capital stock does not purport to be complete and is subject to, and qualified in its
entirety by, our certificate of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus forms
a part, and by applicable law. The terms of our common stock and preferred stock may also be affected by Delaware law.
Authorized
Capital Stock
Our
authorized capital stock consists of 250,000,000 shares of common stock, par value $0.001 per share, and 25,000,000 shares of preferred
stock, par value $0.001 per share, all of which are undesignated preferred stock. As of February 9, 2022, we had 82,948,751 shares of
common stock outstanding and no shares of preferred stock outstanding.
Common
Stock
The
holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders. The
holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive ratably any
dividends declared by our board of directors out of funds legally available for that purpose, subject to any preferential dividend rights
of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption
or sinking fund provisions.
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all assets
remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock. All outstanding
shares are fully paid and non-assessable.
When
we issue shares of common stock under this prospectus, the shares will fully be paid and non-assessable and will not have, or be subject
to, any preemptive or similar rights.
Undesignated
Preferred Stock
Our
board of directors is authorized to issue up to 25,000,000 shares of undesignated preferred stock in one or more series without stockholder
approval. Our board of directors may determine the rights, preferences, privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
The
purpose of authorizing our board of directors to issue preferred stock in one or more series and determine the number of shares in the
series and its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. Examples of rights
and preferences that the Board may fix are:
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dividend
rights; |
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conversion
rights; |
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voting
rights; |
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preemptive
rights; |
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terms
of redemption; |
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liquidation
preferences; |
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sinking
fund terms; and |
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the
number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common stock. |
The
existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors to render more difficult
or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in
the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests
of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in
one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer, stockholder
or stockholder group. The rights of holders of our common stock described above, will be subject to, and may be adversely affected by,
the rights of any preferred stock that we may designate and issue in the future. The issuance of shares of undesignated preferred stock
could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance may also
adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing
a change in control of us.
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 those redemption and repurchase
rights; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period; |
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period; |
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voting
rights, if any, of the preferred stock; |
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preemptive
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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whether
interests in the preferred stock will be represented by depositary shares; |
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a
discussion of any material 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 be fully paid and non-assessable and will not be subject to
any preemptive or similar rights.
Antitakeover
Effects of Delaware Law and Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws
Certain
provisions of the Delaware General Corporation Law and of our restated certificate of incorporation and amended and restated bylaws could
have the effect of delaying, deferring or discouraging another party from acquiring control of us unless such takeover or change of control
is approved by the board of directors. These provisions, which are summarized below, are expected to discourage certain types of coercive
takeover practices and inadequate takeover bids and, therefore, they might also inhibit temporary fluctuations in the market price of
our common stock that often result from actual or rumored hostile takeover attempts. These provisions are also designed in part to encourage
anyone seeking to acquire control of us to first negotiate with our board of directors. These provisions might also have the effect of
preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that
stockholders might otherwise deem to be in their best interests. However, we believe that the advantages gained by protecting our ability
to negotiate with any unsolicited and potentially unfriendly acquirer outweigh the disadvantages of discouraging such proposals, including
those priced above the then-current market value of our common stock, because, among other reasons, the negotiation of such proposals
could improve their terms.
Delaware
Takeover Statute. We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder”
for a three-year period following the time that this stockholder becomes an interested stockholder, unless the business combination is
approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited
unless it satisfies one of the following conditions:
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before
the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder; |
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upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans,
in some instances, but not the outstanding voting stock owned by the interested stockholder; or |
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at
or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock
which is not owned by the interested stockholder. |
Section
203 defines a business combination to include:
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any
merger or consolidation involving the corporation and the interested stockholder; |
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any
sale, transfer, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more of the
assets of the corporation; |
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the
interested stockholder; |
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subject
to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the interested stockholder; or |
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation. |
In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting
stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
Provisions
of our Restated Certificate of Incorporation and Amended and Restated Bylaws. Our restated certificate of incorporation and amended
and restated bylaws include several provisions that may have the effect of delaying, deferring or discouraging another party from acquiring
control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with
our board of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.
Board
composition and filling vacancies. In accordance with our restated certificate of incorporation, our board is divided into three
classes serving staggered three-year terms, with one class being elected each year, subject to the rights of the holders of shares
of any series of our preferred stock then outstanding to elect additional directors under specified circumstances. Our restated certificate
of incorporation also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of two-thirds
or more of the shares then entitled to vote at an election of directors, subject to the rights of the holders of shares of any series
of our preferred stock then outstanding. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy
resulting from an increase in the size of our board, may only be filled by the affirmative vote of a majority of our directors then in
office even if less than a quorum, or by a sole remaining director, subject to the rights of the holders of any series of our preferred
stock then outstanding.
No
written consent of stockholders. Our restated certificate of incorporation provides that all stockholder actions are required to
be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written consent
in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment
of our bylaws or removal of directors by our stockholder without holding a meeting of stockholders.
Meetings
of stockholders. Our bylaws provide that special meetings of stockholders may be called only by the board of directors pursuant
to a resolution adopted by a majority of the total number of authorized directors, whether or not there exist any vacancies in
previously authorized directorships, and upon written request from our corporate secretary, who shall be required to submit such a request
stating the purpose of such a meeting, if at least one-quarter of the voting power of all the then outstanding shares of our capital
stock entitled to vote generally in the election of directors, requesting together as a single class, call for a special meeting.
Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders.
Our bylaws limit the business that may be conducted at an annual meeting of stockholders to the election of directors whose terms
expire and for the transaction of such other business as may properly come before the meeting.
Advance
notice requirements. Our bylaws establish advance notice procedures regarding stockholder proposals pertaining to the nomination
of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that
notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is
to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days or more than 120
days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified
in our bylaws.
Amendment
to certificate of incorporation and bylaws. As required by the Delaware General Corporation Law, any amendment of our certificate
of incorporation must be approved by a majority of our board of directors, and in addition to the vote of the holders of any class or
series of our capital stock required by applicable law or the certificate of incorporation, the affirmative vote of the holders of shares
of voting stock representing two-thirds of the voting power of all of the then outstanding shares of our capital stock entitled to vote
generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal or adopt any provision
inconsistent with Articles FIFTH (Management of Polarity), SIXTH (Board Size, Vacancies and Removals), SEVENTH (Amendment of the Bylaws),
EIGHTH (Indemnification), NINTH (Director Personal Liability), TENTH (Amendment of the Certificate of Incorporation) and TWELFTH (Section
157 of the Delaware General Corporation Law) of the certificate of incorporation. Our bylaws may be amended or repealed by the affirmative
vote of a majority vote of the total number of authorized directors whether or not there exist any vacancies in previously authorized
directorships, subject to any limitations set forth in the bylaws, or by the affirmative vote of at least two-thirds of the voting power
of all the outstanding shares of our capital stock then entitled to vote at an election of directors, voting together as a single class,
at any meeting at which a proposal to amend or repeal the bylaws is properly presented.
Undesignated
preferred stock. Our restated certificate of incorporation provides for authorized shares of preferred stock. The existence of authorized
but unissued shares of preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain
control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary obligations,
our board of directors were to determine that a takeover proposal is not in the best interests of us or our stockholders, our board of
directors could cause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions
that might dilute the voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In this regard,
our restated certificate of incorporation grants our board of directors’ broad power to establish the rights and preferences of
authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and
assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers,
including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any future debt securities we may offer pursuant to this prospectus, we will describe the terms of any debt securities that
we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt
securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set forth
in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We
may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We
will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior
indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee
to be named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which
this prospectus is a part. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture,
as applicable. The indentures will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We
use the term “debenture 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 the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each
indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in U.S.
or foreign currencies or units based on or relating to U.S or foreign currencies. Neither indenture limits the amount of debt securities
that may be issued thereunder, and each indenture provides that the specific terms of any series of debt securities shall be set forth
in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We
will describe in each prospectus supplement the following terms relating to a series of debt securities:
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the
title or designation; |
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the
aggregate principal amount and any limit on the amount that may be issued; |
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the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
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whether
we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be; |
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the
maturity date and the date or dates on which principal will be payable; |
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the
interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates; |
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if
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 or places where payments will be payable; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
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 provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt securities; |
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whether
the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; |
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whether
we will be restricted from incurring any additional indebtedness; |
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a
discussion of any material or special U.S. federal income tax considerations applicable to a series of debt securities; |
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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; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option
of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale; No Protection in Event of a Change of Control or Highly Leveraged Transaction
The
indentures do not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose
of all or substantially all our assets. However, any successor to or acquirer of such assets must assume all our obligations under the
indentures or the debt securities, as appropriate.
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change of control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events
of Default Under the Indenture
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 our failure continues for 90 days and the time for payment has not been extended or deferred; |
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if
we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; |
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if
we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, other
than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues
for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority 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 as to us. |
No
event of default with respect to a series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default
may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence
of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
If
an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee
or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in
writing to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series) of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree
for payment of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal
amount of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the
acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with
respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits
in respect of principal, premium or interest that had become due other than as a result of such acceleration). We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the provisions relating to acceleration of a portion
of the principal amount of such discount securities upon the occurrence of an event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of
a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture
trustee, with respect to the debt securities of that series, provided that:
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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 debenture trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will only 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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holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
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the
holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and |
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the
debenture trustee does not institute the proceeding and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders
of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions
within 60 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable
indenture.
Modification
of Indenture; Waiver
The
debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and |
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant
to such indenture. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of 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 any premium payable upon the redemption
of any debt securities; |
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reducing
the principal amount of discount securities payable upon acceleration of maturity; |
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making
the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment or waiver. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf
of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series or in
respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security
of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for obligations to:
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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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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
To
exercise our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations sufficient
to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, 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 depositary named by us and identified in a prospectus supplement 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, 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,
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 or in the applicable indenture, 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 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 Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes
to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture,
the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given
it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the
costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a series at the office of the paying agents designated by
us, except that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we
will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the
debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a series.
We will maintain a paying agent in each place of payment for the debt securities of a series.
All
money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities
which 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 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 New York, except to
the extent that the Trust Indenture Act is applicable.
Subordination
of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment
to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the
amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
General
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in the applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Terms of the warrants will be described in the warrant agreements and the prospectus
supplement relating to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants; |
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the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants; |
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if
applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise
of the warrants; |
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if
applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise,
and a description of that series of our preferred stock; |
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if
applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description
of that series of debt securities; |
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
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any
applicable material U.S. federal income tax consequences; |
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if
applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately
transferable; |
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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information
with respect to book-entry procedures, if any; |
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the
anti-dilution provisions of the warrants, if any, and other terms that may result in an adjustment to the securities issuable on
exercise of the warrants or an adjustment to the exercise price; |
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any
redemption or call provisions; |
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whether
the warrants may be sold separately or with other securities as parts of units; and |
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described in this
prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock
or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each
series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights
agent. The rights agent will act solely as our agent regarding the certificates relating to the rights of the series of certificates
and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions
may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any terms of the rights,
rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms
described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights
agreement and rights certificate for additional information before you decide whether to purchase any of our rights. We will provide
in a prospectus supplement the following terms of the rights being issued:
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the
date of determining the stockholders entitled to the rights distribution; |
|
|
|
|
● |
the
aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights; |
|
|
|
|
● |
the
exercise price; |
|
|
|
|
● |
the
aggregate number of rights issued; |
|
|
|
|
● |
whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
|
|
|
|
● |
the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire;
|
|
|
|
|
● |
the
method by which holders of rights will be entitled to exercise; |
|
|
|
|
● |
the
conditions to the completion of the offering, if any; |
|
● |
the
withdrawal, termination and cancellation rights, if any; |
|
|
|
|
● |
whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
|
|
|
|
● |
whether
stockholders are entitled to oversubscription rights, if any; |
|
|
|
|
● |
any
applicable material U.S. federal income tax considerations; and |
|
|
|
|
● |
any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the
rights, as applicable, including any provisions for modifying any of the terms of the rights. |
Each
right will entitle the holder of rights to purchase for cash the principal number of shares of common stock, preferred stock or other
securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close
of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all the rights issued in any rights offering are exercised, we may offer any unsubscribed securities
directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods,
including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the terms of any series of units in more detail in the
applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement and any supplemental agreements applicable to a series of units. We urge you to read the applicable prospectus supplements
related to the series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete
unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units consisting of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common
stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit will be issued so that the holder
of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
|
● |
the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
|
|
|
|
● |
any
provisions of the governing unit agreement that differ from those described below; and |
|
|
|
|
● |
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units, including
any provisions for modifying any the terms of the units. |
The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Common Stock,” “Description of Preferred Stock,” “Description of Debt Securities,” “Description
of Warrants,” and “Description of Rights” will apply to each unit, as applicable, and to any common stock, preferred
stock, debt security, warrant or right included in each unit, as applicable.
Unit
Agent
The
name and address of the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
PLAN
OF DISTRIBUTION
We
may offer and sell the securities described in this prospectus from time to time in one or more transactions, including without limitation:
|
● |
directly
to one or more investors, including through a specific bidding, auction or other process; |
|
|
|
|
● |
to
investors through agents; |
|
|
|
|
● |
directly
to agents; |
|
|
|
|
● |
to
or through brokers or dealers; |
|
|
|
|
● |
to
the public through underwriting syndicates led by one or more managing underwriters; |
|
|
|
|
● |
to
one or more underwriters acting alone for resale to investors or to the public; or |
|
|
|
|
● |
through
a combination of any of these methods or any other method permitted pursuant to applicable law. |
In
addition, the manner in which we may offer and sell some or all of the securities described in this prospectus includes, without limitation,
through:
|
● |
a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal,
in order to facilitate the transaction; |
|
|
|
|
● |
purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
|
|
|
|
● |
ordinary
brokerage transactions and transactions in which a broker solicits purchasers; or |
|
|
|
|
● |
privately
negotiated transactions. |
A
prospectus supplement with respect to each offering of securities will set forth the terms of the offering and the method of distribution
of the securities and will identify any firms acting as underwriters, dealers, or agents in connection with the offering, including:
|
● |
the
name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them, if
any; |
|
|
|
|
● |
the
purchase price of the securities being offered and the net proceeds to be received by us from the sale; |
|
|
|
|
● |
any
public offering price; |
|
|
|
|
● |
any
over-allotment options under which the underwriters may purchase additional securities from us; |
|
|
|
|
● |
any
delayed delivery arrangements; |
|
|
|
|
● |
any
underwriting discounts or commissions or agency fees and other items constituting compensation to underwriters, dealers, or agents; |
|
|
|
|
● |
any
discounts or concessions allowed or reallowed or paid to dealers; and |
|
|
|
|
● |
any
securities exchange or markets on which the securities offered in the prospectus supplement may be listed. |
The
offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effectuated
from time to time in one or more transactions, including privately negotiated transactions, either:
|
● |
at
a fixed price or prices, which may be changed; |
|
|
|
|
● |
at
market prices prevailing at the time of sale; |
|
|
|
|
● |
in
“at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or
into an existing trading market, on an exchange or otherwise; |
|
|
|
|
● |
at
prices related to the prevailing market prices; or |
|
|
|
|
● |
at
negotiated prices. |
In
connection with the sale of the securities, underwriters, dealers, or agents may be deemed to have received compensation from us in the
form of underwriting discounts or commissions and also may receive commissions from securities purchasers for whom they may act as agent.
Underwriters may sell the securities to or through dealers, and the 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 agent.
Underwriters,
dealers, and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions
they receive and any profit they realize on the resale of the securities may be deemed to be underwriting discounts and commissions under
the Securities Act. Underwriters and their controlling persons, dealers, and agents may be entitled, under agreements entered into with
us, to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
Any
securities we sell pursuant to a prospectus supplement may or may not be listed on a national securities exchange. It is possible that
one or more underwriters may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to the liquidity of, or the trading market for, any offered
securities.
In
connection with any offering, the underwriters may purchase and sell our securities in the open market. These transactions may include
short sales, stabilizing transactions, and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters
of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases
made for the purpose of preventing a decline in the market price of the securities while an offering is in progress. The underwriters
also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or
short-covering transactions. These activities by the underwriters may stabilize, maintain, or otherwise affect the market price of the
securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these
activities are commenced, they may be discontinued by the underwriters at any time. Underwriters may engage in over-allotment. If any
underwriters create a short position in the securities in an offering in which they sell more securities than are set forth on the cover
page of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing the securities in the open
market.
Underwriters,
dealers, or agents that participate in the offer of securities, or their affiliates or associates, may have engaged or engage in transactions
with and perform services for, us or our affiliates in the ordinary course of business for which they may have received or receive customary
fees and reimbursement of expenses.
LEGAL
MATTERS
Certain
legal matters relating to this offering will be passed upon for us by King & Spalding LLP. Any underwriters will also be advised
about the validity of the securities and other legal matters by their own counsel, which will be named in the applicable prospectus
supplement.
EXPERTS
The
consolidated balance sheets of PolarityTE, Inc. and Subsidiaries as of December 31, 2021, and December 31, 2020, and the
related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years then
ended, have been audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their report, which is incorporated
herein by reference. Such financial statements have been incorporated herein by reference in reliance on the report of such
firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement on Form S-3 that we filed with the SEC. This prospectus does not contain all of the information
included in the registration statement.
We
file annual, quarterly, and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public at the SEC’s website at www.sec.gov. We also maintain a website located at www.polarityte.com, where these
SEC filings and other information about the Company can be accessed, free of charge, as soon as reasonably practicable after we electronically
file the information with, or furnish it to, the SEC. The information contained on or that can be accessed through our website does not
constitute part of this prospectus.
Forms
of any documents establishing the terms of the offered securities are filed as exhibits to the registration statement of which this prospectus
forms a part or will be filed through an amendment to our registration statement on Form S-3 or under cover of a Current Report on Form
8-K or other document filed with the SEC and incorporated into this prospectus by reference. Statements in this prospectus about these
documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer
to the actual documents for a more complete description of the relevant matters. The full registration statement, including exhibits
thereto, may be obtained from the SEC or us as indicated above.
We
have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description
of Capital Stock.” We will furnish a full statement of the relative rights and preferences of each class or series of our stock
which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without
charge. Written requests for such copies should be directed to PolarityTE, Inc., 1960 South 4250 West, Salt Lake City, Utah, 84104, Attention:
Chief Legal Officer, by telephone request to (800) 560-3983, or by e-mail to legal@polarityte.com.
INCORPORATION
BY REFERENCE
The
SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important information
to you by referring you to these documents. The information incorporated by reference is an important part of this prospectus, and information
that we file later with the SEC will automatically update and supersede the information already incorporated by reference. We are incorporating
by reference the documents listed below, which we have already filed with the SEC, and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all filings made after the date of the filing of this registration
statement and prior to the effectiveness of this registration statement, except as to any portion of any future report or document that
is not deemed filed under such provisions, after the date of this prospectus and prior to the termination of this offering:
|
● |
our
Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on March 30, 2022;
and |
|
● |
our
Current Reports on Form 8-K filed (and not furnished) with the Commission on; January 18, 2022, February 11, 2022, February 17,
2022, February 22, 2022, March 4, 2022, March 15, 2022, March 17, 2022, March 23, 2022, and March 25, 2022. |
Upon
written or oral request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this
prospectus is delivered, a copy of the documents incorporated by reference into this prospectus but not delivered with the prospectus.
You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this prospectus,
at no cost by writing or telephoning us at the following address:
PolarityTE,
Inc.
1960
S. 4250 West
Salt
Lake City, UT 84104
(800)
560-3983
The
SEC maintains an internet site (http://www.sec.gov) that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC.
You may also access these documents free of charge on our website at www.polarityte.com. Information contained on our website
is not incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed from,
our website as part of this prospectus or any accompanying prospectus supplement.
This
prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement.
You should read the exhibits carefully for provisions that may be important to you.
You
should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the offer
is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate
as of any date other than the date on the front of this prospectus or those documents.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
PROSPECTUS
________________,
2022
We
have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this prospectus.
You must not rely on any unauthorized information. If anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus does not offer to sell any securities in any jurisdiction where it is unlawful. Neither the delivery of this
prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus is correct after the date
hereof.
Part
II—INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
expenses payable by PolarityTE, Inc. (the “Registrant” or the “Company”) relating to the issuance and distribution
of the securities being registered (other than underwriting discounts and commissions, if any) are set forth below. Each item listed
is estimated, except for the Securities and Exchange Commission (the “SEC”) registration.
Securities and Exchange Commission registration fee (1) | |
$ | 9,270.00(1) | |
FINRA filing fee | |
$ | * | |
Legal fees and expenses | |
$ | * | |
Accounting fees and expenses | |
$ | * | |
Transfer agent and trustee fees | |
$ | * | |
Miscellaneous | |
$ | * | |
Total | |
$ | * | |
*
Estimated expenses not presently known.
(1)
Pursuant to Rule 415(a)(6) promulgated under the Securities Act, the securities registered pursuant to this registration statement include
$96,714,362 of unsold securities (the “Unsold Primary Securities”) previously registered by the Registrant on the
Registrant’s registration statement on Form S-3 (File No. 333-229584) (the “Existing Registration Statement”)
originally filed with the Securities and Exchange Commission (the “SEC”) on February 8, 2019, and declared effective by the
SEC on February 22, 2019. The Existing Registration Statement registered the offer and sale by the Registrant of an indeterminate number
of shares of common stock and preferred stock, such indeterminate amount of debt securities, and such indeterminate number of warrants,
rights and units as shall have an aggregate initial offering price not to exceed $200,000,000. The Registrant has determined to include
in this registration statement the Unsold Primary Securities. Pursuant to Rule 415(a)(6) promulgated under the Securities Act, this registration
statement includes all of the Unsold Primary Securities, and the Registrant is applying the previously paid filing fee associated with
the Unsold Primary Securities to this registration statement. Accordingly, the filing fee of $9,270.00 (calculated pursuant to Rule 457(o)
under the Securities Act) being paid herewith relates to the $100,000,000 of newly registered securities. Pursuant to Rule 415(a)(6)
promulgated under the Securities Act, the offering of the Unsold Primary Securities under the Existing Registration Statement will be
deemed terminated as of the date of effectiveness of this registration statement.
Item
15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation
Law, or the DGCL, permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding
brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith
and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action (i.e.,
one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by
any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and
in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification
shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court
in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, Article
NINETH of the Company’s certificate of incorporation eliminates the liability of a director to the Company or its stockholders
for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
|
● |
from any breach of the director’s duty of loyalty to Polarity or its stockholders; |
|
● |
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; |
|
● |
under Section 174 of the DGCL; or |
|
● |
from any transaction from which the director derived an improper personal benefit. |
In addition, the Company’s amended and restated
bylaws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including,
without limitation, as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was a director or an officer of the Company or is or was serving at the Company’s
request as a director, officer, or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity
as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and
held harmless by the Company to the fullest extent authorized by the DGCL against all expense, liability and loss (including attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such.
Further,
the Company has entered into indemnification agreements with each of the Company’s directors and executive officers that may be
broader than the specific indemnification provisions contained in the DGCL. These indemnification agreements require the Company, among
other things, to indemnify the Company’s directors and executive officers against liabilities that may arise by reason of their
status or service. These indemnification agreements also require the Company to advance all expenses incurred by the directors and executive
officers in investigating or defending any such action, suit or proceeding.
The
indemnification provisions contained in the DGCL, the limitation of liability and indemnification provisions that are included
in the Company’s certificate of incorporation, amended and restated bylaws and the indemnification agreements that the Company
has entered into with its directors and executive officers may discourage stockholders from bringing a lawsuit against the Company’s
directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against
the Company’s directors and executive officers, even though an action, if successful, might benefit the Company and other stockholders.
Further, a stockholder’s investment may be adversely affected to the extent that the Company pays the costs of settlement and damage
awards against directors and executive officers as required by these indemnification provisions.
Section
145(g) of the DGCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the corporation as such at any other enterprise against any
liability asserted against and incurred by such person in such capacity, or arising out of such person’s status as such, whether
or not the corporation would have the power to indemnify such person against such liability under the DGCL. Consistent with the DGCL,
the Company has obtained insurance policies under
which, subject to the limitations of the policies, coverage is provided to the Company’s directors and executive officers against
loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including
claims relating to public securities matters, and to the Company with respect to payments that may be made by the Company to these directors
and executive officers pursuant to the Company’s indemnification obligations or otherwise as a matter of law.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
company pursuant to the foregoing provisions, the company has been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
Item
16. Exhibits
Exhibit
Number |
|
Exhibit
Description |
|
Incorporated
by Reference from Form or Schedule |
|
Filing
Date |
|
Filed
Herewith |
|
|
|
|
|
|
|
|
|
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1 |
|
Restated Certificate of Incorporation of PolarityTE, Inc. |
|
Form
8-K |
|
10/01/2022 |
|
|
|
|
|
|
|
|
|
|
|
4.2 |
|
PolarityTE, Inc., Amended and Restated Bylaws - September 28, 2021 |
|
Form
8-K |
|
10/01/2022 |
|
|
|
|
|
|
|
|
|
|
|
4.3 |
|
Form of Senior Indenture |
|
Form
S-3 |
|
02/11/2022 |
|
|
|
|
|
|
|
|
|
|
|
4.4 |
|
Form of Subordinated Indenture |
|
Form
S-3 |
|
02/11/2022 |
|
|
|
|
|
|
|
|
|
|
|
4.5* |
|
Form
of Senior Debt Security |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.6* |
|
Form
of Subordinated Debt Security |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.7* |
|
Form
of Certificate of Preferred Designation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.8* |
|
Form
of Preferred Stock Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.9* |
|
Form
of Warrant Agreement and Warrant |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.10* |
|
Form
of Rights Agreement and Right Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.11* |
|
Form
of Unit Agreement and Unit Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
To
be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference
in this registration statement, including a Current Report on Form 8-K. |
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(a)
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “SEC”) pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(l)(ii) and (a)(1)(iii)
of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference
in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration
statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
(b)
That, for purposes of determining any liability under the Securities Act:
(i)
the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of the registration statement as of the time it was declared effective; and
(ii)
each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof;
(d)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue; and
(e)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)
in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust
Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Salt Lake, State of Utah, on March 30, 2022.
|
PolarityTE,
Inc. |
|
|
|
By: |
/s/
Richard Hague |
|
Name: |
Richard
Hague |
|
Title: |
Chief
Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Richard Hague |
|
Chief
Executive Officer |
|
|
Richard
Hague |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Jacob Patterson |
|
Chief
Financial Officer |
|
|
Jacob
Patterson |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Director |
|
|
Peter
Cohen |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
|
Willie
C. Bogan |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
|
Jeff
Dyer |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
|
Chris
Nolet |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
|
David
Seaburg |
|
|
|
|
*By: |
/s/ Jacob Patterson |
|
Attorney-in-Fact |
|
March
30, 2022 |
|
Jacob
Patterson |
|
|
|
|
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