Delaware | | | 26-4231384 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller reporting company | | | ☒ |
| | | | Emerging growth company | | | ☐ |
• | a base prospectus which covers the offering, issuance and sale by the Registrant of the securities identified above from time to time in one or more offerings, which together shall have an aggregate initial offering price not to exceed $150.0 million; and |
• | sales agreement prospectus covering the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of $50.0 million (which amount is included in the $150.0 million aggregate offering price set forth in the base prospectus) of the Registrant’s common stock that may be issued and sold under the At Market Issuance Sales Agreement, dated August 24, 2022, among the Registrant and B. Riley Securities, Inc. and BTIG, LLC. |
• | our ability to protect our intellectual property rights; |
• | anticipated capital requirements, including our anticipated cash runway and our current expectations regarding plans for future equity financings; |
• | dependence on additional financing to fund our operations and complete the development and commercialization of our product candidates, and the risks that raising such additional capital may restrict our operations or require us to relinquish rights to our technologies or product candidates; |
• | limited operating history in our current line of business, which makes it difficult to evaluate our prospects, business plan or the likelihood of our successful implementation of such business plan; |
• | the timing for us or our partners to initiate the planned clinical trials for PDS0101, PDS0103, PDS0203 and other Versamune® and Infectimune™ based products and the future success of such trials; |
• | the successful implementation of our research and development programs and collaborations, including any collaboration studies concerning PDS0101, PDS0203 and other Versamune® and Infectimune™ based products and our interpretation of the results and findings of such programs and collaborations and whether such results are sufficient to support the future success of the Company’s product candidates; |
• | our inability to implement and maintain appropriate internal controls; |
• | the success, timing and cost of our ongoing clinical trials and anticipated clinical trials for the our current product candidates, including statements regarding the timing of initiation, pace of enrollment and completion of the trials (including our ability to fully fund our disclosed clinical trials, which assumes no material changes to our currently projected expenses), futility analyses, presentations at conferences and data reported in an abstract, and receipt of interim results (including, without limitation, any preclinical results or data), which are not necessarily indicative of the final results of our ongoing clinical trials; |
• | expectations for the clinical and preclinical development, manufacturing, regulatory approval, and commercialization of our product candidates; |
• | the effect of government regulations on our business; |
• | any statements about our understanding of product candidates mechanisms of action and interpretation of preclinical and early clinical results from our clinical development programs and any collaboration studies; |
• | the acceptance by the market of the Company’s product candidates, if approved; |
• | the timing of and the Company’s ability to obtain and maintain U.S. Food and Drug Administration or other regulatory authority approval of, or other action with respect to, the Company’s product candidates; |
• | our ability to meet the continued listing requirements of Nasdaq; and |
• | other factors, including legislative, regulatory, political and economic developments not within our control, including unforeseen circumstances or other disruptions to normal business operations arising from or related to COVID-19. |
• | shares of our common stock, par value $0.00033 per share; |
• | shares of our preferred stock, par value $0.00033 per share; |
• | debt securities; |
• | warrants to purchase shares of our common stock, shares of our preferred stock and/or our debt securities; |
• | units consisting of two or more of the securities described above; or |
• | rights to purchase shares of our common stock, shares of our preferred stock, warrants, units or our debt securities. |
• | permits our board of directors to issue up to 5,000,000 shares of preferred stock, with any rights, preferences and privileges as they may designate; |
• | provides that the authorized number of directors may be changed only by the board of directors; |
• | provides that all vacancies on our board of directors, including as a result of newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum; |
• | divides our board of directors into three classes; |
• | require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by written consent; |
• | provides that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide advance notice in writing, and also specify requirements as to the form and content of a stockholder’s notice; |
• | does not provide for cumulative voting rights, thereby allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election; |
• | provides that special meetings of our stockholders may be called only by the board of directors; |
• | does not preclude or contract the scope of exclusive federal or concurrent jurisdiction for any actions brought under the Securities Act or the Exchange Act; and. |
• | does not relieve us of our duties to comply with the federal securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations. |
• | the distinguishing designation of the series of preferred stock; |
• | the number of shares of the series of preferred stock offered, the liquidation preference per share and the offering price of the series; |
• | the dividend rate(s), period(s) or payment date(s) or method(s) of calculation applicable to the series of preferred stock; |
• | whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the series of preferred stock will accumulate; |
• | the procedures for any auction and remarketing, if any, for the series of preferred stock; |
• | the provisions for a sinking fund, if any, for the series of preferred stock; |
• | the provision for redemption, if applicable, of the series of preferred stock; |
• | any listing of the series of preferred stock on any securities exchange; |
• | the terms and conditions, if applicable, upon which the series of preferred stock will be convertible into common stock, including the conversion price or manner of calculation and conversion period; |
• | voting rights, if any, of the series of preferred stock; |
• | a discussion of any material or special U.S. federal income tax considerations applicable to the series of preferred stock; |
• | the relative ranking and preferences of the series of preferred stock as to dividend rights and rights upon the liquidation, dissolution or winding up of our affairs; |
• | any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the series of preferred stock being offered as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and |
• | any other specific terms, preferences, rights, limitations or restrictions of the series of preferred stock. |
• | senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock; |
• | on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a parity with the preferred stock; and |
• | junior to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the preferred stock. |
• | the designation or title of the series of debt securities; |
• | the total principal amount of the series of debt securities, the denominations in which the offered debt securities will be issued and whether the offering may be reopened for additional securities of that series and on what terms; |
• | the percentage of the principal amount at which the series of debt securities will be offered; |
• | the date or dates on which principal will be payable; |
• | the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
• | the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable; |
• | the terms for redemption, extension or early repayment, if any; |
• | the currencies in which the series of debt securities are issued and payable; |
• | whether the amount of payments of principal, interest or premium, if any, on a series of debt securities will be determined with reference to an index, formula or other method and how these amounts will be determined; |
• | the place or places of payment, transfer, conversion and/or exchange of the debt securities; |
• | the provision for any sinking fund; |
• | any restrictive covenants; |
• | events of default; |
• | whether the series of debt securities are issuable in certificated form; |
• | any provisions for legal defeasance or covenant defeasance; |
• | whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option); |
• | any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
• | whether the debt securities are subject to subordination and the terms of such subordination; |
• | any listing of the debt securities on any securities exchange; |
• | if applicable, a discussion of certain U.S. Federal income tax considerations, including those related to original issue discount, if applicable; and |
• | any other material terms. |
• | we do not pay the principal of, or any premium on, a debt security of the series on its due date; |
• | we do not pay interest on a debt security of the series within 30 days of its due date; |
• | we do not deposit any sinking fund payment in respect of debt securities of the series on its due date and we do not cure this default within five days; |
• | we remain in breach of a covenant in respect of debt securities of the series for 90 days after we receive a written notice of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the principal amount of debt securities of the series; |
• | we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; and |
• | any other Event of Default occurs in respect of debt securities of the series described in the prospectus supplement. |
• | the holder must give the trustee written notice that an Event of Default has occurred and remains uncured; |
• | the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action; |
• | the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and |
• | the holders of a majority in principal amount of the debt securities must not have given the trustee a direction inconsistent with the above notice during that 60-day period. |
• | if we do not survive such transaction or we convey, transfer or lease our properties and assets substantially as an entirety, the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible for our debt securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia, the new company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for service of process; |
• | alternatively, we must be the surviving company; |
• | immediately after the transaction no Event of Default will exist; |
• | we must deliver certain certificates and documents to the trustee; and |
• | we must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities. |
• | change the stated maturity of the principal of or rate of interest on a debt security; |
• | reduce any amounts due on a debt security; |
• | reduce the amount of principal payable upon acceleration of the maturity of a security following a default; |
• | at any time after a change of control has occurred, reduce any premium payable upon a change of control; |
• | change the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement); |
• | impair the right of holders to sue for payment; |
• | adversely affect any right to convert or exchange a debt security in accordance with its terms; |
• | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
• | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults; |
• | modify any other aspect of the provisions of the indenture dealing with supplemental indentures, modification and waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and |
• | change any obligation we have to pay additional amounts. |
• | if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount of that series; and |
• | if the change affects more than one series of debt securities issued under the same indenture, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose. |
• | for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of these debt securities were accelerated to that date because of a default; |
• | for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that debt security described in the related prospectus supplement; and |
• | for debt securities denominated in one or more foreign currencies, we will use the U.S. dollar equivalent. |
• | If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates; |
• | We may be required to deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. Federal income tax law, we may make the above deposit without causing the holders to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity; and |
• | We must deliver to the trustee certain documentation stating that all conditions precedent to covenant defeasance have been complied with. |
• | If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates; |
• | We may be required to deliver to the trustee a legal opinion confirming that there has been a change in current U.S. Federal tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing the holders to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity. Under current U.S. Federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid each holder its share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for its debt securities and holders would recognize gain or loss on the debt securities at the time of the deposit; and |
• | We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to legal defeasance have been complied with. |
• | our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness is not senior or prior in right of payment to the subordinated debt securities; and |
• | renewals, extensions, modifications and refinancings of any of such indebtedness. |
• | the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise; |
• | a summary of the designation and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock as set forth in the certificate of designation for such series of preferred stock; |
• | the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property; |
• | the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable; |
• | the terms of any rights to redeem or call the warrants; |
• | the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
• | U.S. federal income tax consequences applicable to the warrants; and |
• | any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the warrants. |
• | the title of the series of units; |
• | identification and description of the separate constituent securities comprising the units; |
• | the price or prices at which the units will be issued; |
• | the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
• | a discussion of certain U.S. federal income tax considerations applicable to the units; and |
• | any other material terms of the units and their constituent securities. |
• | the title and aggregate number of the rights; |
• | the subscription price or a formula for the determination of the subscription price for the rights and the currency or currencies in which the subscription price may be payable; |
• | if applicable, the designation and terms of the securities with which the rights are issued and the number of rights issued with each such security or each principal amount of such security; |
• | the number or a formula for the determination of the number of the rights issued to each stockholder; |
• | the extent to which the rights are transferable; |
• | in the case of rights to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one right; |
• | in the case of rights to purchase common stock or preferred stock, the type of stock and number of shares of stock purchasable upon exercise of one right; |
• | the date on which the right to exercise the rights will commence, and the date on which the rights will expire (subject to any extension); |
• | if applicable, the minimum or maximum amount of the rights that may be exercised at any one time; |
• | the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities; |
• | if applicable, the procedures for adjusting the subscription price and number of shares of common stock or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock; |
• | the effect on the rights of any merger, consolidation, sale or other disposition of our business; |
• | the terms of any rights to redeem or call the rights; |
• | information with respect to book-entry procedures, if any; |
• | the terms of the securities issuable upon exercise of the rights; |
• | if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement that we may enter into in connection with the rights offering; |
• | if applicable, a discussion of certain U.S. Federal income tax considerations; and |
• | any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights. |
• | at a fixed price or prices, which may be changed; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; or |
• | at negotiated prices. |
• | our Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on March 31, 2022; |
• | the information included in our definitive proxy statement on Schedule 14A for our 2022 Annual Meeting of Stockholders, filed with the SEC on April 29, 2022, to the extent incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2021; |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed with the SEC on May 11, 2022; |
• | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 filed with the SEC on August 8, 2022; |
• | our Current Reports on Form 8-K filed with the SEC on January 7, 2022; January 12, 2022; January 19, 2022; January 27, 2022; February 2, 2022; February 15, 2022; February 24, 2022; March 15, 2022 (but solely as to the matters disclosed under Items 1.01, 5.02, 5.03, 8.01, and the related exhibits filed under Item 9.01 thereunder); April 19, 2022; April 27, 2022; May 11, 2022 (but solely as to the matters disclosed under Item 8.01 and the related exhibits filed under Item 9.01 thereunder), May 18, 2022, May 26, 2022, May 26, 2022, May 31, 2022, June 2, 2022, June 7, 2022, June 7, 2022, June 16, 2022, July 14, 2022, August 4, 2022, and August 10, 2022; and |
• | the description of our common stock contained in our registration statement on Form 8-A12B, filed with the SEC on September 25, 2015 (File No. 001-37568), and all amendments or reports filed for the purpose of updating such description. |
B. Riley Securities | | | BTIG |
• | our ability to protect our intellectual property rights; |
• | anticipated capital requirements, including our anticipated cash runway and our current expectations regarding plans for future equity financings; |
• | dependence on additional financing to fund our operations and complete the development and commercialization of our product candidates, and the risks that raising such additional capital may restrict our operations or require us to relinquish rights to our technologies or product candidates; |
• | limited operating history in our current line of business, which makes it difficult to evaluate our prospects, business plan or the likelihood of our successful implementation of such business plan; |
• | the timing for us or our partners to initiate the planned clinical trials for PDS0101, PDS0103, PDS0203 and other Versamune® and Infectimune™ based products and the future success of such trials; |
• | the successful implementation of our research and development programs and collaborations, including any collaboration studies concerning PDS0101, PDS0203 and other Versamune® and Infectimune™ based products and our interpretation of the results and findings of such programs and collaborations and whether such results are sufficient to support the future success of the Company’s product candidates; |
• | our inability to implement and maintain appropriate internal controls; |
• | the success, timing and cost of our ongoing clinical trials and anticipated clinical trials for the our current product candidates, including statements regarding the timing of initiation, pace of enrollment and completion of the trials (including our ability to fully fund our disclosed clinical trials, which assumes no material changes to our currently projected expenses), futility analyses, presentations at conferences and data reported in an abstract, and receipt of interim results (including, without limitation, any preclinical results or data), which are not necessarily indicative of the final results of our ongoing clinical trials; |
• | expectations for the clinical and preclinical development, manufacturing, regulatory approval, and commercialization of our product candidates; |
• | the effect of government regulations on our business; |
• | any statements about our understanding of product candidates mechanisms of action and interpretation of preclinical and early clinical results from our clinical development programs and any collaboration studies; |
• | the acceptance by the market of the Company’s product candidates, if approved; |
• | the timing of and the Company’s ability to obtain and maintain U.S. Food and Drug Administration or other regulatory authority approval of, or other action with respect to, the Company’s product candidates; |
• | our ability to meet the continued listing requirements of Nasdaq; and |
• | other factors, including legislative, regulatory, political and economic developments not within our control, including unforeseen circumstances or other disruptions to normal business operations arising from or related to COVID-19. |
• | 4,283,846 shares of common stock issuable upon the exercise of outstanding stock options, having a weighted average exercise price of $12.95 per share; |
• | 124,604 shares of common stock issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $12.72 per share; and |
• | 1,303,113 and 372,215 shares of common stock reserved for future issuance under the PDS Biotechnology Corporation Second Amended and Restated 2014 Equity Incentive Plan and the 2019 Inducement Plan. |
Assumed public offering price per share | | | | | $4.99 | |
Historical net tangible book value per share as of June 30, 2022 | | | $1.81 | | | |
Increase in as-adjusted net tangible book value per share attributable to this offering | | | $0.62 | | | |
As-adjusted net tangible book value per share as of June 30, 2022, after giving effect to this offering | | | | | $2.43 | |
Dilution in net tangible book value per share to investors in this offering | | | | | $1.76 |
• | 4,283,846 shares of common stock issuable upon the exercise of outstanding stock options, having a weighted average exercise price of $12.95 per share; |
• | 124,604 shares of common stock issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $12.72 per share; and |
• | 1,303,113 and 372,215 shares of common stock reserved for future issuance under the PDS Biotechnology Corporation Second Amended and Restated 2014 Equity Incentive Plan and the 2019 Inducement Plan. |
• | our Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on March 31, 2022; |
• | the information included in our definitive proxy statement on Schedule 14A for our 2022 Annual Meeting of Stockholders, filed with the SEC on April 29, 2022, to the extent incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2021; |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed with the SEC on May 11, 2022; |
• | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 filed with the SEC on August 8, 2022; |
• | our Current Reports on Form 8-K filed with the SEC on January 7, 2022; January 12, 2022; January 19, 2022; January 27, 2022; February 2, 2022; February 15, 2022; February 24, 2022; March 15, 2022 (but solely as to the matters disclosed under Items 1.01, 5.02, 5.03, 8.01, and the related exhibits filed under Item 9.01 thereunder); April 19, 2022; April 27, 2022; May 11, 2022 (but solely as to the matters disclosed under Item 8.01 and the related exhibits filed under Item 9.01 thereunder), May 18, 2022, May 26, 2022, May 26, 2022, May 31, 2022, June 2, 2022, June 7, 2022, June 7, 2022, June 16, 2022, July 14, 2022, August 4, 2022, and August 10, 2022; and |
• | the description of our common stock contained in our registration statement on Form 8-A12B, filed with the SEC on September 25, 2015 (File No. 001-37568), and all amendments or reports filed for the purpose of updating such description. |
B. Riley Securities | | | BTIG |
Item 14. | Other Expenses of Issuance and Distribution. |
Securities and Exchange Commission registration fee | | | $10,105.11 |
FINRA filing fee | | | * |
Printing and engraving expenses | | | * |
The Nasdaq Capital Market listing fees | | | * |
Legal fees and expenses | | | * |
Accounting fees and expenses | | | * |
Transfer agent and registrar fees | | | * |
Miscellaneous expenses | | | * |
Total | | | $* |
* | These fees and expenses will be based upon the number of securities offerings and the amount of securities offered and accordingly cannot be estimated at this time. |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | Exhibits. |
Item 17. | Undertakings. |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(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 Securities and Exchange Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 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 of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this 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)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this 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 this registration statement relating to the securities in this registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of 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) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
(d) | 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 (the “Act”) in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Act. |
Exhibit Number | | | Description of Document |
1.1 | | | Form of Underwriting Agreement.* |
| | At Market Issuance Sales Agreement dated August 24, 2022 by and between the Company B. Riley Securities, Inc., and BTIG, LLC (filed herewith). | |
| | Agreement and Plan of Merger and Reorganization, dated November 23, 2018, by and among Edge Therapeutics, Inc., Echos Merger Sub, Inc. and PDS Biotechnology Corporation (filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on November 26, 2018, and incorporated by reference herein). | |
| | Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated January 24, 2019, by and among Edge Therapeutics, Inc., Echos Merger Sub, Inc. and PDS Biotechnology Corporation (filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on January 30, 2019, and incorporated by reference herein). | |
| | Eighth Amended and Restated Certificate of Incorporation (filed as exhibit 3.1 to the Company’s Current Report on Form 8-K filed on October 6, 2015, and incorporated by reference herein). | |
| | Certificate of Amendment to Amended and Restated Certificate of Incorporation (filed as exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 18, 2019, and incorporated by reference herein). | |
| | Certificate of Amendment to Amended and Restated Certificate of Incorporation (filed as exhibit 3.2 to the Company’s Current Report on Form 8-K filed on March 18, 2019, and incorporated by reference herein). | |
| | Third Amended and Restated Bylaws of PDS Biotechnology Corporation (filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 15, 2022, and incorporated by reference herein). | |
| | Form of Certificate of Common Stock (filed as exhibit 4.1 to the Company’s Pre-Effective Amendment No. 1 to the registration statement on Form S-1 (File No. 333- 206416) filed on September 21, 2015, and incorporated by reference herein). | |
| | Form of Indenture (filed herewith). | |
4.5 | | | Form of Warrant Certificate with respect to any Warrant issued hereunder.* |
4.6 | | | Form of Warrant Agreement with respect to any Warrant issued hereunder.* |
4.7 | | | Form of Certificate of Designation with respect to any Preferred Stock issued hereunder and the related form of Preferred Stock Certificate.* |
4.8 | | | Form of Debt Security.* |
4.9 | | | Form of Unit Agreement.* |
4.10 | | | Form of Unit Certificate.* |
4.11 | | | Form of Rights Certificate.* |
| | Opinion of DLA Piper LLP (US), relating to the base prospectus (filed herewith). | |
| | Opinion of DLA Piper LLP (US), relating to the sales agreement prospectus supplement (filed herewith). | |
| | Consent of KPMG LLP (filed herewith). | |
| | Consent of DLA Piper LLP (US) (included in Exhibit 5.1). | |
| | Power of Attorney (included on signature page). | |
25.1 | | | Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended.** |
| | Calculation of Filing Fee Tables (filed herewith). |
* | If applicable, to be filed subsequent to the effectiveness of this registration statement (1) by an amendment to this registration statement or (2) as an exhibit to a Current Report on Form 8-K and incorporated herein by reference. |
** | If applicable, to be filed subsequent to the effectiveness of this registration statement under the electronic form type 305B2 pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
| | PDS BIOTECHNOLOGY CORPORATION | ||||
| | | ||||
| | By: | | | /s/ Frank Bedu-Addo, Ph.D. | |
| | | | Frank Bedu-Addo, Ph.D. | ||
| | | | President and Chief Executive Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ Frank Bedu-Addo, Ph.D. | | | President, Chief Executive Officer and Director (Principal Executive Officer) | | | August 24, 2022 |
Frank Bedu-Addo, Ph.D. | | |||||
| | | | |||
/s/ Matthew Hill | | | Chief Financial Officer (Principal Financial and Accounting Officer) | | | August 24, 2022 |
Matthew Hill | | |||||
| | | | |||
/s/ Sir Richard Sykes | | | Director | | | August 24, 2022 |
Sir Richard Sykes | | |||||
| | | | |||
/s/ Otis W. Brawley | | | Director | | | August 24, 2022 |
Otis W. Brawley | | |||||
| | | | |||
/s/ Gregory Freitag, J.D., CPA | | | Director | | | August 24, 2022 |
Gregory Freitag, J.D., CPA | | |||||
| | | | |||
/s/ Stephen Glover | | | Director | | | August 24, 2022 |
Stephen Glover | | |||||
| | | | |||
/s/ Kamil Ali-Jackson | | | Director | | | August 24, 2022 |
Kamil Ali-Jackson | | |||||
| | | | |||
/s/ Ilian Iliev, Ph.D. | | | Director | | | August 24, 2022 |
Ilian Iliev, Ph.D. | |