As filed with the Securities and Exchange Commission
on November 3, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
PROTARA THERAPEUTICS, INC.
(Exact name of
registrant as specified in its charter)
Delaware |
|
20-4580525 |
(State or other jurisdiction of |
|
(I.R.S. Employer |
incorporation or organization) |
|
Identification Number) |
345 Park Avenue South, Third Floor
New York, New York 10010
(646) 844-0337
(Address, including
zip code, and telephone number, including area code of registrant’s principal executive offices)
Jesse Shefferman
President and Chief Executive Officer
Protara Therapeutics, Inc.
345 Park Avenue South, Third Floor
New York, New York 10010
(646) 844-0337
(Name, address,
including zip code, and telephone number, including area code, of agent for service)
Copies to:
Mary J. Grendell, Esq. |
Robert W. Downes |
General Counsel and Corporate Secretary |
Sullivan & Cromwell LLP |
Protara Therapeutics, Inc. |
125 Broad Street |
345 Park Avenue South, Third Floor |
New York, New York 10004 |
New York, New York 10010 |
(212) 558-4000 |
(646) 844-0337 |
|
Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☒ |
Smaller reporting company ☒ |
|
Emerging growth company ☐ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant is filing this
registration statement to replace its existing registration statement (No. 333-251224), which is expiring pursuant to Rule 415(a)(5).
In accordance with Rule 415(a)(6), effectiveness of this registration statement will be deemed to terminate such registration statement.
The registrant hereby amends
this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further
amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the
registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these
securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED NOVEMBER 3, 2023
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, we may
offer up to $300,000,000 of any combination of the securities described in this prospectus in one or more offerings. We may also offer
securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including
any applicable anti-dilution provisions.
This prospectus provides a
general description of the securities we may offer. Each time we offer securities, we will provide specific terms of the securities offered
in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with
these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained
in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus,
as well as any documents incorporated by reference, before you invest in any of the securities being offered.
This prospectus may not
be used to consummate a sale of any securities unless accompanied by a prospectus supplement.
Our common stock is listed
on The Nasdaq Capital Market, or Nasdaq, under the symbol “TARA.” On November 2, 2023, the last reported sale price of our
common stock was $1.22 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing
on Nasdaq or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
As of June 30, 2023, the aggregate
market value of our outstanding common stock held by non-affiliates, or public float, was approximately $17.96 million, based on 11,307,962
shares of outstanding common stock, of which approximately 3.79 million shares were held by affiliates, and a price of $2.39 per share,
which was the price at which our common stock was last sold on the Nasdaq Capital Market on such date. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends on and includes the date of this
prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement
in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public
float remains below $75 million (the “Baby Shelf Limitation”).
We will sell these securities
directly to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed
basis. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in
this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being
delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts or over-allotment options will be
set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale
will also be set forth in a prospectus supplement.
Investing in our
securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
“Risk Factors” on page 5 of this prospectus, any similar section contained in the applicable prospectus supplement and
any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this
prospectus as described on page 30 of this prospectus.
NEITHER THE SECURITIES
AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part
of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus
in one or more offerings up to a total aggregate offering price of $300,000,000, subject to the Baby Shelf Limitation. This prospectus
provides you with a general description of the securities we may offer.
Each time we sell securities
under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these
offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add,
update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus.
You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information
incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before
investing in any of the securities offered.
THIS PROSPECTUS MAY NOT
BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent,
underwriter or dealer has authorized any person to give any information or to make any representation other than those contained or incorporated
by reference in this prospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf
of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus
do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which
they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You should not assume that
the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is
correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus and the information
incorporated herein by reference contains summaries of certain provisions contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to
the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the
heading “Where You Can Find More Information.”
Unless otherwise stated, all
references in this prospectus to “we,” “us,” “our,” “Protara,” the “Company”
and similar designations refer to Protara Therapeutics, Inc. This prospectus contains references to trademarks belonging to other entities.
Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork and other visual displays,
may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that the applicable licensor
will not assert, to the fullest extent under applicable law, its rights to these trademarks and trade names. We do not intend our use
or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any
other companies.
SUMMARY
The following summary highlights
information contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information that you
need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents
that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into
this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Unless the context indicates
otherwise, references in this prospectus to “Protara,” “Protara Therapeutics,” “the Company,” “we,”
“us,” “our” and similar references refer to Protara Therapeutics, Inc.
Overview
We are a New York City based
clinical-stage biopharmaceutical company committed to advancing transformative therapies for the treatment of cancer and rare diseases.
We were founded on the principle of applying modern scientific, regulatory or manufacturing advancements to established mechanisms in
order to create new development opportunities. We prioritize creativity, diverse perspectives, integrity and tenacity to expedite our
goal of bringing life-changing therapies to people with limited treatment options.
Our portfolio includes two
development programs utilizing TARA-002, an investigational cell therapy based on the broad immunopotentiator OK-432, which was originally
granted marketing approval by the Japanese Ministry of Health and Welfare as an immunopotentiating cancer therapeutic agent. This cell
therapy is currently approved in Japan and Taiwan for the treatment of lymphatic malformations, or LMs, and multiple oncologic indications.
We have secured worldwide rights to the asset excluding Japan and Taiwan and are exploring its use in oncology and rare disease indications.
TARA-002 was developed from the same master cell bank of genetically distinct group A Streptococcus pyogenes as OK-432 (marketed as Picibanil®
in Japan and Taiwan by Chugai Pharmaceutical Co., Ltd., or Chugai Pharmaceutical). We are currently developing TARA-002 in non-muscle
invasive bladder cancer, or NMIBC, and in LMs.
Our lead oncology program
is TARA-002 in NMIBC, which is cancer found in the tissue that lines the inner surface of the bladder that has not spread into the bladder
muscle. Bladder cancer is the sixth most common cancer in the United States, with NMIBC representing approximately 80% of bladder cancer
diagnoses. Approximately 65,000 patients are diagnosed with NMIBC in the United States each year. Very few new therapeutics have been
approved for NMIBC since the 1990s and the current standard of care for NMIBC includes intravesical Bacillus Calmette–Guérin,
or BCG. The mechanism of action of TARA-002 is similar in some ways to that of BCG. TARA-002 and BCG are both intravesically administered,
elicit a Th1 type immune response and produce a locally-activated generally similar array of cytokines and immune cells.
We are also pursuing TARA-002
in LMs, which are rare, non-malignant cysts of the lymphatic vascular system that primarily form in the head and neck region of children
before the age of two. In July 2020, the FDA granted Rare Pediatric Disease designation for TARA-002 for the treatment of LMs and in May
2022 the European Medicines Agency granted orphan drug designation to TARA-002 for the treatment of LMs. In addition to the clinical experience
in Japan, we have secured the rights to a dataset from one of the largest ever conducted Phase 2 trials in LMs, in which OK-432 was administered
via a compassionate use program led by the University of Iowa to over 500 pediatric and adult patients.
The third development program
in our portfolio is intravenous, or IV, Choline Chloride, an investigational phospholipid substrate replacement therapy, in development
for patients receiving parenteral nutrition, or PN. IV Choline Chloride has been granted Orphan Drug Designation by the FDA for patients
on PN. We have conducted a two-part prevalence study to enhance our understanding of the PN patient population. The first part of the
prevalence study was completed in September 2021, when we reported results of the retrospective part of the prevalence study, which supported
the significant unmet medical need in patients dependent on PN. We are concluding the second, or prospective part, of the prevalence study,
which is a multi-center, cross-sectional observational study that assessed the prevalence of choline deficiency in patients dependent
on PN. We continue to engage with the FDA and plan to take into account, among other relevant factors we deem appropriate, regulatory
feedback and the results of the prevalence study to determine the next steps for the development program.
We have devoted substantial
efforts to the development of these programs and do not have any approved products and have not generated any revenue from product sales.
TARA-002 has not yet been approved for use for treatment of NMIBC, LMs or any other indications. We do not expect to generate revenues
in the near-term, and it is possible we may never generate revenues in the future. To finance our current strategic plans, including the
conduct of ongoing and future clinical trials and further research and development costs, we will need to raise additional capital.
Corporate Information
We were originally incorporated
in Delaware in March 2006, and at that time, acquired Proteon Therapeutics, LLC, the predecessor of Protara, which was formed in June
2001. On January 9, 2020, Protara Therapeutics, Inc. (formerly ArTara Therapeutics, Inc., formerly Proteon Therapeutics, Inc., or the
Company or Protara), and privately-held ArTara Subsidiary, Inc., or Private ArTara, completed the merger and reorganization, or the Merger,
in accordance with the terms of the Agreement and Plan of Merger and Reorganization, dated September 23, 2019, or the Merger Agreement,
by and among the Company, Private ArTara and REM 1 Acquisition, Inc., a wholly owned subsidiary of the Company, or Merger Sub, whereby
Merger Sub merged with and into Private ArTara, with Private ArTara surviving as a wholly owned subsidiary of the Company. The Merger
was structured as a reverse merger and Private ArTara was determined to be the accounting acquirer based on the terms of the Merger and
other factors. Our principal executive offices are located at 345 Park Avenue South, Third Floor, New York, New York 10010, our telephone
number is (646) 844-0337 and our website address is www.protaratx.com. The information contained in or accessible through our website
does not constitute part of this prospectus.
The Securities We May Offer
We may offer shares of our
common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities, up to a total aggregate
offering price of $300,000,000, subject to the Baby Shelf Limitation, from time to time in one or more offerings under this prospectus,
together with any applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by
market conditions at the time of the relevant offering. This prospectus provides you with a general description of the securities we may
offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe
the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| ● | designation or classification; |
| ● | aggregate principal amount or aggregate offering price; |
| ● | maturity, if applicable; |
| ● | original issue discount, if any; |
| ● | rates and times of payment of interest or dividends, if any; |
| ● | redemption, conversion, exchange or sinking fund terms, if any; |
| ● | restrictive covenants, if any; |
| ● | voting or other rights, if any; |
| ● | conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments
in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; and |
| ● | important U.S. federal income tax considerations. |
The prospectus supplement
and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained
in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will
offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement
of which this prospectus is a part.
We may sell the securities
directly to investors or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject
all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable
prospectus supplement:
| ● | the names of those underwriters or agents; |
| ● | applicable fees, discounts and commissions to be paid to them; |
| ● | details regarding over-allotment options, if any; and |
| ● | the estimated net proceeds to us. |
This prospectus may not
be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
Common Stock.
We may issue shares of our common stock from time to time. Each holder of common stock is entitled to one vote for each share on all matters
submitted to a vote of the stockholders and does not have cumulative voting rights. Subject to preferences that may apply to any outstanding
preferred stock, holders of our common stock are entitled to receive ratably any dividends that our board of directors may declare out
of funds legally available for that purpose. In the event of our liquidation, dissolution or winding up, holders of our common stock are
entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any outstanding preferred
stock. Holders of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking
fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject
to and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that we may designate in
the future, as well as our Series 1 Convertible Non-Voting Preferred Stock, or Series 1 Preferred Stock. In this prospectus, we have summarized
certain general features of our common stock under the heading “Description of Capital Stock—Common Stock.” We urge
you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided
to you) related to any common stock being offered.
Preferred Stock.
We may issue shares of our preferred stock from time to time, in one or more series. Under our sixth amended and restated certificate
of incorporation, as amended from time to time, our board of directors has the authority, without further action by our stockholders (unless
such stockholder action is required by applicable law or the rules of any stock exchange or market on which our securities are then traded),
to issue up to 10,000,000 shares of preferred stock in one or more series and to fix the number, rights, preferences, privileges and restrictions
thereof. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption,
liquidation preferences and sinking fund terms, and the number of shares constituting any series or the designation of such series, any
or all of which may be greater than the rights of common stock. Any convertible preferred stock we may issue will be convertible into
our common stock or exchangeable for our other securities. Conversion may be mandatory or at the holder’s option and would be at
prescribed conversion rates.
If we sell any series of preferred
stock under this prospectus, we will fix the designations, voting powers, preferences and rights of such series of preferred stock, as
well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file
as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we
file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock that we are offering
before the issuance of the related series of preferred stock. In this prospectus, we have summarized certain general features of the preferred
stock under the heading “Description of Capital Stock —Preferred Stock.” We urge you, however, to read the applicable
prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred
stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred
stock.
Debt Securities.
From time to time, we may issue debt securities in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt
securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the
debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or
other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
Any debt securities issued
under this prospectus will be issued under one or more documents called indentures, which are contracts between us and a national banking
association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities
under the heading “Description of Debt Securities.” We urge you, however, to read the applicable prospectus supplement (and
any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as well
as the complete indenture(s) and any supplemental indentures that contain the terms of the debt securities. We have filed a form of indenture
as an exhibit to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement
of which this prospectus is a part, or will be incorporated by reference from reports that we file with the SEC, supplemental indentures
and forms of debt securities containing the terms of the debt securities being offered.
Warrants. From
time to time, we may issue warrants for the purchase of common stock, preferred stock and/or debt securities, in one or more series, from
time to time. We may issue warrants independently or in combination with common stock, preferred stock and/or debt securities, and the
warrants may be attached to or separate from these securities. In this prospectus, we have summarized certain general features of the
warrants under the heading “Description of Warrants.” We urge you, however, to read the applicable prospectus supplement (and
any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as
well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. We have filed forms of the warrant
agreements and forms of warrant certificates containing the terms of the warrants that we may offer as exhibits to the registration statement
of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will
be incorporated by reference from reports that we file with the SEC, the form of warrant or the warrant agreement and warrant certificate,
as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the
issuance of such warrants.
Any warrants issued under
this prospectus may be evidenced by warrant certificates. Warrants may be issued under a warrant agreement that we enter into with a warrant
agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular
series of warrants being offered.
RISK FACTORS
Investing in our securities
involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in our Annual Report
on Form 10-K for the year ended December 31, 2022, as updated by our annual, quarterly and other reports and documents that are incorporated
by reference into this prospectus, before deciding whether to purchase any of the securities being registered pursuant to the registration
statement of which this prospectus is a part. Each of the risk factors could adversely affect our business, results of operations, financial
condition and cash flows, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these
risks might cause you to lose all or part of your investment. Additional risks not presently known to us or that we currently believe
are immaterial may also significantly impair our business operations.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including
the information incorporated herein by reference, contains, and any prospectus supplement may contain, forward-looking statements. These
statements are based on our management’s current beliefs, expectations and assumptions about future events, conditions and results
and on information currently available to us. Discussions containing these forward-looking statements may be found, among other places,
in the sections titled “Business,” “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” incorporated by reference from our most recent Annual Report on Form 10-K and our most recent
Quarterly Report on Form 10-Q, as well as any amendments thereto, filed with the SEC.
In some cases, you can identify
forward-looking statements by terminology such as “aim,” “anticipate,” “assume,” “believe,”
“contemplate,” “continue,” “could,” “design,” “due,” “estimate,”
“expect,” “goal,” “intend,” “may,” “objective,” “plan,” “predict,”
“positioned,” “potential,” “seek,” “should,” “target,” “will,”
“would” or the negative or plural of those terms, and similar expressions intended to identify statements about the future,
although not all forward-looking statements contain these words. These forward-looking statements involve known and unknown risks, uncertainties
and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from the
information expressed or implied by these statements.
Any statements in this prospectus,
or incorporated herein by reference, about our expectations, beliefs, plans, objectives, assumptions or future events or performance are
not historical facts and are forward-looking statements. Within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act these forward-looking statements include statements regarding:
| ● | estimates regarding our financial performance, including future revenue, expenses and capital requirements; |
| ● | our expected cash position and ability to obtain financing in the future on satisfactory terms or at all; |
| ● | expectations regarding our plans to research, develop and commercialize our current and future product
candidates, including TARA-002, and Intravenous, or IV, Choline Chloride; |
| ● | expectations regarding the safety and efficacy of our product candidates; |
| ● | expectations regarding the timing, costs and outcomes of our planned clinical trials; |
| ● | expectations regarding potential market size; |
| ● | expectations regarding the timing of the availability of data from our clinical trials; |
| ● | expectations regarding the clinical utility, potential benefits and market acceptance of our product candidates; |
| ● | expectations regarding our commercialization, marketing and manufacturing capabilities and strategy; |
| ● | the implementation of our business model, strategic plans for our business, product candidates and technology; |
| ● | expectations regarding our ability to identify additional products or product candidates with significant
commercial potential; |
| ● | developments and projections relating to our competitors and industry; |
| ● | our ability to acquire, license and invest in businesses, technologies, product candidates and products; |
| ● | our ability to remain listed on the Nasdaq Capital Market, or Nasdaq; |
| ● | the impact of government laws and regulations; |
| ● | costs and outcomes relating to any disputes, governmental inquiries or investigations, regulatory proceedings,
legal proceedings or litigation; |
| ● | our ability to attract and retain key personnel to manage our business effectively; |
| ● | our ability to prevent system failures, data breaches or violations of data protection laws; |
| ● | the timing or likelihood of regulatory filings and approvals; |
| ● | our ability to protect our intellectual property position; and |
| ● | the impact of general U.S., foreign and global economic, industry, market, regulatory, political or public
health conditions. |
You should refer to the “Risk
Factors” section contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this prospectus, for a discussion of important factors that may cause our
actual results to differ materially from those expressed or implied by our forward-looking statements. Given these risks, uncertainties
and other factors, many of which are beyond our control, we cannot assure you that the forward-looking statements in this prospectus will
prove to be accurate, and you should not place undue reliance on these forward-looking statements. Furthermore, if our forward-looking
statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking
statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our
objectives and plans in any specified time frame, or at all.
Except as required by law,
we assume no obligation to update these forward-looking statements publicly, or to revise any forward-looking statements to reflect events
or developments occurring after the date of this prospectus, even if new information becomes available in the future.
USE OF PROCEEDS
We will retain broad discretion
over the use of the net proceeds from the sale of the securities offered hereby. Except as described in any applicable prospectus supplement
or in any related free writing prospectus that we may authorize to be provided to you in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered hereby, if any, for general corporate purposes, including research
and development expenses, general and administrative expenses, sales and marketing expenses, capital expenditures, which may include costs
of funding future license agreements, acquisitions, and working capital or for any other purpose we describe in the applicable prospectus
supplement. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds
received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending the use of net
proceeds, we plan to invest the net proceeds in short- and intermediate-term interest-bearing obligations, investment-grade securities,
certificates of deposit or government securities.
DESCRIPTION OF
CAPITAL STOCK
The following summary description
of our capital stock is based on the provisions of our sixth amended and restated certificate of incorporation, as amended from time to
time, our second amended and restated bylaws, our certificate of designation of preferences, rights and limitations of Series 1 Convertible
Non-Voting Preferred Stock, as amended from time to time, and the applicable provisions of the Delaware General Corporation Law. This
information is qualified entirely by reference to the applicable provisions of our sixth amended and restated certificate of incorporation,
as amended from time to time, our second amended and restated bylaws, our certificate of designation of preferences, rights and limitations
of Series 1 Convertible Non-Voting Preferred Stock, as amended from time to time, and the Delaware General Corporation Law. For information
on how to obtain copies of our sixth amended and restated certificate of incorporation, as amended from time to time, our second amended
and restated bylaws, our certificate of designation of preferences, rights and limitations of Series 1 Convertible Non-Voting Preferred
Stock, as amended from time to time, each of which are exhibits to the registration statement of which this prospectus is a part, see
“Where You Can Find Additional Information.” We refer in this section to our sixth amended and restated certificate of incorporation,
as amended from time to time, and our second amended and restated bylaws as our “certificate of incorporation” and our “bylaws”,
respectively.
General
Our authorized capital stock
consists of 110,000,000 shares, all with a par value of $0.001 per share, of which 100,000,000 shares are designated as common stock and
10,000,000 shares are designated as preferred stock. As of November 2, 2023, we had 11,364,903 shares of common stock and 7,991 shares
of Series 1 Preferred Stock outstanding.
Common Stock
Voting Rights
Each holder of our common
stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors.
Our stockholders do not have cumulative voting rights in the election of directors. An election of directors by our stockholders shall
be determined by a plurality of votes cast by the stockholders entitled to vote on the election.
Dividends
Subject to preferences that
may be applicable to any then outstanding preferred stock, holders of our common stock are entitled to receive dividends, if any, as may
be declared from time to time by the board of directors out of legally available funds.
Liquidation
In the event of our liquidation,
dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted
to the holders of any then outstanding shares of preferred stock.
Rights and Preferences
Holders of common stock have
no preemptive, conversion or subscription rights and there are no redemption or sinking fund provisions applicable to the common stock.
The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of
the holders of shares of any series of preferred stock that we may designate in the future.
Preferred Stock
Under our certificate of incorporation,
our board of directors has the authority, without further action by stockholders, to designate up to 10,000,000 shares of preferred stock
in one or more series and to fix or alter, from time to time, the powers, designations, preferences, and relative, participating, optional,
or other special rights, if any, and such qualifications and restrictions, if any, of any series of preferred stock, including dividend
rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption
price or prices, and the liquidation preference of any wholly unissued series of preferred stock, any or all of which may be greater than
the rights of the common stock, and to establish the number of shares constituting any such series. Our board of directors has designated
8,028 shares of preferred stock as Series 1 Preferred Stock.
Our board of directors will
fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell under this
prospectus and any applicable prospectus supplements in the certificate of designation relating to each such series. We will incorporate
by reference as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to one or more Current Reports
on Form 8-K, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before
the issuance of the related series of preferred stock. This description will include:
| ● | the title and stated value; |
| ● | the number of shares we are offering; |
| ● | the liquidation preference per share; |
| ● | the purchase price per share; |
| ● | the dividend rate per share, dividend period, payment date or dates and method of calculation for dividends; |
| ● | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| ● | our right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
| ● | the procedures for any auction and remarketing, if any; |
| ● | the provisions for a sinking fund, if any; |
| ● | the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise
those redemption and repurchase rights; |
| ● | any listing of the preferred stock on any securities exchange or market; |
| ● | whether the preferred stock will be convertible into our common stock or other securities of ours, including
warrants, and, if applicable, the conversion price, or how it will be calculated, and under what circumstances and the mechanism by which
it may be adjusted, and the conversion period; |
| ● | whether the preferred stock will be exchangeable into debt securities or other securities of ours, and,
if applicable, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted, and the exchange period; |
| ● | preemptive rights, if any; |
| ● | restrictions on transfer, sale or other assignment, if any; |
| ● | whether interests in the preferred stock will be represented by depositary shares; |
| ● | a discussion of any material or special U.S. federal income tax considerations applicable to the preferred
stock; |
| ● | the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; |
| ● | any limitations on issuances of any class or series of preferred stock ranking senior to or on parity
with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
| ● | any other specific terms, rights, preferences, privileges, qualifications or limitations of, or restrictions
on the preferred stock. |
If we issue and sell shares
of preferred stock pursuant to this prospectus, together with any applicable prospectus supplement or free writing prospectus, the shares
will be fully paid and non-assessable.
The laws of the state of Delaware,
the state of our incorporation, provide that the holders of preferred stock will have the right to vote separately, as a class, on any
proposal involving fundamental changes in the rights of holders of such preferred stock. This right is in addition to any voting rights
that may be provided for in the applicable certificate of designation.
The issuance of preferred
stock could adversely affect the voting power, conversion or other rights of holders of common stock and reduce the likelihood that common
stockholders will receive dividend payments and payments upon liquidation. Preferred stock could be issued quickly with terms designed
to delay, deter or prevent a change in control of our company or make removal of management more difficult. Additionally, the issuance
of preferred stock may have the effect of decreasing the market price of our common stock.
Series 1 Convertible Non-Voting Preferred Stock
September 2019 Offering
On September 23, 2019, we
entered into a subscription agreement, or the Subscription Agreement, with certain institutional investors, or the Purchasers, providing
for the issuance and sale of 1,896,888 shares of common stock and 3,879,356 shares of Series 1 Preferred Stock for an aggregate purchase
price of approximately $40.5 million. The Subscription Agreement was subsequently amended by a First Amendment to Subscription Agreement
on November 19, 2019.
Each share of Series 1 Preferred
Stock is convertible, at any time at the option of the holder thereof, a conversion rate equal to the stated value of $7,011.47 per share
divided by an initial conversion price of $7.01 per share, subject to adjustment for any stock splits, stock dividends and similar events,
and further subject to a 9.99% blocker provision. Upon written notice to us, the holder may from time to time increase or decrease such
limitation to any other percentage not in excess of 19.99% specified in such notice. Each share of Series 1 Preferred Stock is entitled
to a preference of $10.00 per share upon liquidation of the Company, and thereafter will share ratably in any distributions or payments
on an as-converted basis with the holders of common stock. In addition, upon the occurrence of certain transactions that involve the merger
or consolidation of the Company, an exchange or tender offer, a sale of all or substantially all of the assets of the Company or a reclassification
of its common stock, each share of Series 1 Preferred Stock will be convertible into the kind and amount of securities, cash and/or other
property that the holder of a number of shares of common stock issuable upon conversion of one share of Series 1 Preferred Stock would
receive in connection with such transaction. Except as provided in the Certificate of Designation or as required by law, the shares of
Series 1 Preferred Stock have no voting rights.
Pursuant to the Subscription
Agreement, certain holders of Series 1 Preferred Stock have preemptive rights to participate pro rata in future equity financings of the
Company, subject to certain exceptions and limitations. In addition, the lead Purchaser has the right (but not the obligation) to appoint
up to two directors to our board of directors and one other Purchaser has the right (but not the obligation) to appoint one director to
our board of directors, in each case subject to requirements related to holding minimum amounts of our equity securities. In addition,
at any time when it does not have a designee serving on the board of directors, each of these Purchasers has a right to designate an individual
to be present and participate in a non-voting capacity in all meetings of our board of directors and committees of the board. Further,
we have also agreed not to take certain actions related to the business without the consent of the lead Purchaser for so long as such
lead Purchaser continues to hold a minimum amount of the Series 1 Preferred Stock purchased under the Subscription Agreement. These actions
include (a) liquidating, dissolving or winding-up the affairs of the Company; (b) any merger, consolidation or other Fundamental Transaction
(defined in the Subscription Agreement); (c) amendments to our certificate of incorporation or bylaws in a manner that adversely effects
the Series 1 Preferred Stock and that is disproportionate to the effect on any other class or series of capital stock; (d) material changes
to the principal business of the Company; (e) purchases, redemptions or the payment of dividends on any capital stock (subject to certain
exceptions); (f) the sale, assignment, license or pledge of TARA-002; and (g) transactions involving assets of the Company with an aggregate
value over $2.5 million.
Concurrently with the execution
of the Subscription Agreement, we entered into a registration rights agreement, or the Registration Rights Agreement, dated September
23, 2019, with the Purchasers. Pursuant to the terms of the Registration Rights Agreement, we prepared and filed a registration statement
on Form S-3 on January 30, 2020 for the purposes of registering the resale of the shares of common stock issued pursuant to the Subscription
Agreement and the shares of common stock issuable upon conversion of the Series 1 Preferred Stock issued pursuant to the Subscription
Agreement. Additionally, pursuant to the Subscription Agreement, if at any time after 180 days following the date of closing of the issuance
and sale of Series 1 Preferred Stock and common stock pursuant to the Subscription Agreement, either the lead Purchaser or another Purchaser
determines that it may be deemed to be an “affiliate” of the Company within the meaning of Rule 144 of the Securities Act,
we shall enter into a registration rights agreement with such Purchaser requiring us to file a registration statement on Form S-3 pursuant
to a demand by such Purchaser in connection with the resale of such Purchaser’s shares of common stock.
The preceding summaries do
not purport to be complete and are qualified in their entirety by reference to the Certificate of Designation for the Series 1 Preferred
Stock, the Registration Rights Agreement and the Subscription Agreement, as applicable, copies of which are attached hereto as Exhibits
3.5, 4.5 and 10.1, respectively, and which are incorporated herein by reference.
September 2020 Offering
On September 24, 2020, we
issued and sold in an underwritten public offering an additional 4,148 shares of our Series 1 Preferred Stock at an offering price of
$16,873.54 per share, for gross and net proceeds of approximately $70.0 million and $66.3 million, respectively.
Delaware Anti-Takeover Law and Provisions of
Our Certificate of Incorporation, as amended, and Bylaws, as amended
Our certificate of incorporation
and our bylaws contain certain provisions that could have the effect of delaying, deterring or preventing another party from acquiring
control of us, and therefore could adversely affect the market price of our common stock. These provisions and certain provisions of Delaware
General Corporation Law, or the DGCL, which are summarized below, may also discourage coercive takeover practices and inadequate takeover
bids, and are designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors.
We believe that the benefits of increased protection of our potential ability to negotiate more favorable terms with an unfriendly or
unsolicited acquirer outweigh the disadvantages of potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are subject to Section
203 of the DGCL, or Section 203. Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years following the time that such stockholder became an interested
stockholder, unless:
| ● | prior to such time the board of directors of the corporation approved either the business combination
or the transaction which resulted in the stockholder becoming an interested stockholder; |
| ● | upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder)
those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do
not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer;
or |
| ● | at or subsequent to such time the business combination is approved by the board of directors and authorized
at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding
voting stock which is not owned by the interested stockholder. |
Section 203 defines a business
combination to include:
| ● | any merger or consolidation involving the corporation and the interested stockholder; |
| ● | any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of
the assets of the corporation; |
| ● | 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; |
| ● | subject to exceptions, any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; and |
| ● | 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.
Certificate of Incorporation and Bylaws
Our certificate of incorporation
and bylaws contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of the
board of directors and which may have the effect of delaying, deferring or preventing a future takeover or change in control unless such
takeover or change in control is approved by the board of directors. In addition, the authorization of undesignated preferred stock makes
it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success
of any attempt to change our control. These provisions include:
Classified board of directors
Our certificate of incorporation
provides that the board of directors is divided into three classes of directors, with the classes as nearly equal in number as possible.
Any additional directorships resulting from an increase in the number of directors will be apportioned by the board of directors among
the three classes. The classification of directors will have the effect of making it more difficult for stockholders to change the composition
of the board of directors.
Our certificate of incorporation
provides that, subject to any rights of holders of preferred stock to elect additional directors under specified circumstances, the number
of directors will be fixed exclusively pursuant to a resolution adopted by the board of directors. Any additional directorships resulting
from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class shall
consist of one third of the board of directors.
Action by Written Consent; Special
Meetings of Stockholders
Our certificate of incorporation
provides that stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by written consent
in lieu of a meeting. Our certificate of incorporation and bylaws also provide that, except as otherwise required by law, special meetings
of the stockholders can be called only by or at the direction of the board of directors pursuant to a resolution adopted by a majority
of the total number of directors. Except as described above, stockholders will not be permitted to call a special meeting or to require
the board of directors to call a special meeting.
Removal of Directors
Our certificate of incorporation
provides that our directors may be removed only for cause by the affirmative vote of at least 75% of the voting power of our outstanding
shares of capital stock, voting together as a single class and entitled to vote in the election of directors. This requirement of a supermajority
vote to remove directors could enable a minority of our stockholders to prevent a change in the composition of the board of directors.
Advance Notice Procedures
Our bylaws include an advance
notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations
of persons for election to the board of directors. Stockholders at an annual meeting will only be able to consider proposals or nominations
specified in the notice of meeting or brought before the meeting by or at the direction of the board of directors or by a stockholder
who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given our Secretary
timely written notice, in proper form, of the stockholder’s intention to bring that business before the meeting. Although the bylaws
do not give the board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other
business to be conducted at a special or annual meeting, the bylaws may have the effect of precluding the conduct of certain business
at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.
Super Majority Approval Requirements
The Delaware General Corporation
Law generally provides that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s
certificate of incorporation or bylaws, unless either a corporation’s certificate of incorporation or bylaws requires a greater
percentage. Our certificate of incorporation and bylaws provide that the affirmative vote of holders of at least 75% of the outstanding
shares of capital stock, voting together as a single class and entitled to vote in the election of directors will be required to amend,
alter, change or repeal the bylaws and certain portions of the certificate of incorporation. This requirement of a supermajority vote
to approve amendments to our bylaws could enable a minority of our stockholders to exercise veto power over any such amendments.
Authorized but Unissued Shares
Our authorized but unissued
shares of common stock will be available for future issuance without stockholder approval. These additional shares may be utilized for
a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit
plans. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain
control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum
Our certificate of incorporation
provides that, subject to limited exceptions, the state or federal courts located in the State of Delaware will be the sole and exclusive
forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty
owed by any of our directors, officers or other employees to us or our stockholders, (iii) any action asserting a claim against us arising
pursuant to any provision of the Delaware General Corporation Law, our certificate of incorporation or our bylaws, or (iv) any other action
asserting a claim against our that is governed by the internal affairs doctrine; provided, that these provisions will not apply to actions
or proceedings brought to enforce a duty or liability created by the Securities Act, the Securities Exchange Act of 1934, as amended,
or the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction. Any person or entity purchasing or otherwise
acquiring any interest in shares of our capital stock shall be deemed to have notice of and to have consented to the provisions of our
certificate of incorporation described above. Although we believe these provisions benefit us by providing increased consistency in the
application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits
against our directors and officers. The enforceability of similar choice of forum provisions in other companies’ certificates of
incorporation has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings
described above, a court could find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or
unenforceable.
Transfer Agent and Registrar
The transfer agent and registrar
for our common stock is Computershare Trust Company, N.A.
Listing
Our common stock is listed
on the Nasdaq Capital Market under the symbol “TARA.”
DESCRIPTION OF
DEBT SECURITIES
We may issue debt securities
from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the
terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the
particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt
securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever
we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt
securities.
We will issue the debt securities
under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture
Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of
which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part, or will be incorporated by reference
from, reports that we file with the SEC.
The following summary of material
provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions
of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any
related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture
that contains the terms of the debt securities.
General
The indenture does not limit
the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may
authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale
of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other
provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions
involving us.
We may issue the debt securities
issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original
issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of
the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in
more detail in any applicable prospectus supplement.
We will describe in the applicable
prospectus supplement the terms of the series of debt securities being offered, including:
| ● | the title of the series of debt securities; |
| ● | any limit upon the aggregate principal amount that may be issued; |
| ● | the maturity date or dates; |
| ● | the form of the debt securities of the series; |
| ● | the applicability of any guarantees; |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination
thereof, and the terms of any subordination; |
| ● | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt
securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| ● | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and
the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or
the method for determining such dates; |
| ● | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if applicable, the date or dates after which, or the period or periods during which, and the price or
prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions
and the terms of those redemption provisions; |
| ● | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of
debt securities and the currency or currency unit in which the debt securities are payable; |
| ● | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; |
| ● | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that
series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection
with the marketing of debt securities of that series; |
| ● | whether the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in
part for other individual securities; and the depositary for such global security or securities; |
| ● | if applicable, the provisions relating to conversion or exchange of any debt securities of the series
and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion
or exchange; |
| ● | if other than the full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
| ● | additions to or changes in the covenants applicable to the particular debt securities being issued, including,
among others, the consolidation, merger or sale covenant; |
| ● | additions to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to
be due and payable; |
| ● | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
| ● | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| ● | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the
equivalent amount in U.S. dollars; |
| ● | whether interest will be payable in cash or additional debt securities at our or the holders’ option
and the terms and conditions upon which the election may be made; |
| ● | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium,
if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal
tax purposes; |
| ● | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable
laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable
prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our
other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or
our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an
entirety. However, any successor to or acquirer of such assets (other than any subsidiary of ours) must assume all of our obligations
under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture
with respect to any series of debt securities that we may issue:
| ● | if we fail to pay any installment of interest on any series of debt securities, as and when the same shall
become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest
for this purpose; |
| ● | if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt
securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal
or premium, if any; |
| ● | if we fail to observe or perform any other covenant or agreement contained in the debt securities or the
indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after
we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder,
from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series;
and |
| ● | if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with
respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued
interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to
us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without
any notice or other action on the part of the trustee or any holder.
The holders of a majority
in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the
indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise
any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
| ● | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| ● | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve
it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities
of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other
remedies only if:
| ● | the holder has given written notice to the trustee of a continuing event of default with respect to that
series; |
| ● | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series
have made written request; |
| ● | such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred by the trustee in compliance with the request; and |
| ● | the trustee does not institute the proceeding, and does not receive from the holders of a majority in
aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice,
request and offer. |
These limitations do not apply
to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the
debt securities.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change
an indenture without the consent of any holders with respect to specific matters:
| ● | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
| ● | to comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;” |
| ● | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| ● | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions
or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender
any right or power conferred upon us in the indenture; |
| ● | to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
| ● | to make any change that does not adversely affect the interests of any holder of debt securities of any
series in any material respect; |
| ● | to provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications
required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
or |
| ● | to comply with any requirements of the SEC in connection with the qualification of any indenture under
the Trust Indenture Act. |
| ● | In addition, under the indenture, the rights of holders of a series of debt securities may be changed
by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular
series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt
securities affected: |
| ● | extending the fixed maturity of any debt securities of any series; |
| ● | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing
any premium payable upon the redemption of any series of any debt securities; or |
| ● | reducing the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each indenture provides that
we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
| ● | register the transfer or exchange of debt securities of the series; |
| ● | replace stolen, lost or mutilated debt securities of the series; |
| ● | pay principal of and premium and interest on any debt securities of the series; |
| ● | maintain paying agencies; |
| ● | hold monies for payment in trust; |
| ● | recover excess money held by the trustee; |
| ● | compensate and indemnify the trustee; and |
| ● | appoint any successor trustee. |
In order to exercise our rights
to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium,
if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company,
or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities
will be set forth in the applicable prospectus supplement.
At the option of the holder,
subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the
indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon
duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange,
we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental
charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve
a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
If we elect to redeem the
debt securities of any series, we will not be required to:
| ● | issue, register the transfer of, or exchange any debt securities of that series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the mailing; or |
| ● | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part,
except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during
the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a
prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of and
any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that
unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying
agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the
end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt
securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that
the Trust Indenture Act is applicable.
DESCRIPTION OF
WARRANTS
The following description,
together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes
the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common
stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be issued independently or together with
common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe
the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable
free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However,
no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We have filed forms of the
warrant agreements as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant
agreement, if any, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering.
The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety
by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that
we may offer under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of warrants
that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant
certificates that contain the terms of the warrants.
General
In the applicable prospectus
supplement, we will describe the terms of the series of warrants being offered, including, to the extent applicable:
| ● | the title of such securities; |
| ● | the offering price or prices and aggregate number of warrants offered; |
| ● | the currency or currencies for which the warrants may be purchased; |
| ● | the designation and terms of the securities with which the warrants are issued and the number of warrants
issued with each such security or each principal amount of such security; |
| ● | the date on and after which the warrants and the related securities will be separately transferable; |
| ● | the minimum or maximum amount of such warrants which may be exercised at any one time; |
| ● | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable
upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased
upon such exercise; |
| ● | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock
or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which,
these shares may be purchased upon such exercise; |
| ● | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements
and the warrants; |
| ● | the terms of any rights to redeem or call the warrants; |
| ● | the terms of any rights to force the exercise of the warrants; |
| ● | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon
exercise of the warrants; |
| ● | the dates on which the right to exercise the warrants will commence and expire; |
| ● | the manner in which the warrant agreements and warrants may be modified; |
| ● | a discussion of any material or special U.S. federal income tax considerations of holding or exercising
the warrants; |
| ● | the terms of the securities issuable upon exercise of the warrants; and |
| ● | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
| ● | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if
any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any; or |
| ● | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or
premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may
exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Unless we otherwise specify
in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant certificate representing
the warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent in connection
with the exercise of the warrant.
On receipt of payment and
the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent,
if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver
the securities purchasable on such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate)
are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we provide otherwise
in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related
to the warrants or warrant agreements, will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any,
will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant
agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any
duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP
OF SECURITIES
We can issue securities in
registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those
persons who have securities registered in their own names on the books that we or any applicable trustee or depositary maintain for this
purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in
book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in
book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more
global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name
a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary
or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we
will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants,
which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in
a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank,
broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global
security or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their
own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker
or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through
an account he or she maintains at that institution.
For securities held in street
name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions
in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all
payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who
hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as
the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities.
We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities
only in global form.
For example, once we make
a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder
is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so.
Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or
of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval
only from the legal holder, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders
is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through
a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global
securities or in street name, you should check with your own institution to find out:
| ● | how it handles securities payments and notices; |
| ● | whether it imposes fees or charges; |
| ● | how it would handle a request for the holders’ consent, if ever required; |
| ● | whether and how you can instruct it to send you securities registered in your own name so you can be a
holder, if that is permitted in the future; |
| ● | how it would exercise rights under the securities if there were a default or other event triggering the
need for holders to act to protect their interests; and |
| ● | if the securities are in book-entry form, how the depositary’s rules and procedures will affect
these matters. |
Global Securities
A global security is a security
that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same
global securities will have the same terms.
Each security issued in book-entry
form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its
nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, DTC, New York, New York, will be the depositary for all securities issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “—Special Situations When a Global Security Will Be
Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder
of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not
be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement
for a particular security indicates that the security will be issued as a global security, then the security will be represented by a
global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through
another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued only
as global securities, an investor should be aware of the following:
| ● | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global
certificates for his or her interest in the securities, except in the special situations we describe below; |
| ● | an investor will be an indirect holder and must look to his or her own bank or broker for payments on
the securities and protection of his or her legal rights relating to the securities, as we describe above; |
| ● | an investor may not be able to sell interests in the securities to some insurance companies and to other
institutions that are required by law to own their securities in non-book-entry form; |
| ● | an investor may not be able to pledge his or her interest in the global security in circumstances where
certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to
be effective; |
| ● | the depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in the global security; |
| ● | we and any applicable trustee have no responsibility for any aspect of the depositary’s actions
or for its records of ownership interests in the global security, nor will we or any applicable trustee supervise the depositary in any
way; |
| ● | the depositary may, and we understand that DTC will, require that those who purchase and sell interests
in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so
as well; and |
| ● | financial institutions that participate in the depositary’s book-entry system, and through which
an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters
relating to the securities. |
There may be more than one
financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of
those intermediaries.
Special Situations When a Global Security Will
Be Terminated
In a few special situations
described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be
direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise
in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
| ● | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary
for that global security and we do not appoint another institution to act as depositary within 90 days; |
| ● | if we notify any applicable trustee that we wish to terminate that global security; or |
| ● | if an event of default has occurred with regard to securities represented by that global security and
has not been cured or waived. |
The applicable prospectus
supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities
covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee, is
responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods.
We may sell the securities to or through underwriters or dealers, through agents or directly to one or more purchasers. We may distribute
securities from time to time in one or more transactions:
| ● | 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 |
We may also sell equity securities
covered by this registration statement in an “at the market” offering as defined in Rule 415 under the Securities Act.
Such offering may be made
into an existing trading market for such securities in transactions at other than a fixed price, either:
| ● | on or through the facilities of Nasdaq or any other securities exchange or quotation or trading service
on which such securities may be listed, quoted or traded at the time of sale; and/or |
| ● | to or through a market maker other than on Nasdaq or such other securities exchanges or quotation or trading
services. |
Such “at the market”
offerings, if any, may be conducted by underwriters acting as principal or agent.
A prospectus supplement or
supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering
of the securities, including, to the extent applicable:
| ● | the name or names of any underwriters, dealers or agents, if any; |
| ● | the purchase price of the securities and the proceeds we will receive from the sale; |
| ● | any over-allotment options under which underwriters may purchase additional securities from us; |
| ● | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any public offering price; |
| ● | any discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any securities exchange or market on which the securities may be listed. |
Only underwriters named in
the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used in
the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions
at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the
public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement. Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with
whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly
or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will
describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may authorize agents or
underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price
set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in
the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in
the prospectus supplement.
We may provide agents and
underwriters with indemnification against civil liabilities related to this offering, including liabilities under the Securities Act,
or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we offer, other
than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities,
but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity
of the trading markets for any securities.
Any underwriter may engage
in overallotment, stabilizing transactions, short covering transactions and penalty bids. Overallotment involves sales in excess of the
offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market
after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from
a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue
any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any underwriters who are qualified
market makers on Nasdaq may engage in passive market making transactions in the securities on Nasdaq in accordance with Rule 103 of Regulation
M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive
market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a
passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might
otherwise prevail in the open market and, if commenced, may be discontinued at any time.
VALIDITY OF SECURITIES
Unless otherwise indicated
in the applicable prospectus supplement, certain legal matters in connection with the offering and the validity of the securities offered
by this prospectus, and any supplement thereto, will be passed upon by Sullivan & Cromwell LLP, New York, New York. Additional legal
matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial
statements of Protara Therapeutics, Inc. appearing in Protara Therapeutic, Inc.’s Annual Report (Form 10-K) for the year ended December
31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon
included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included
in subsequently filed documents will be, incorporated herein in reliance upon the report of Ernst & Young LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as
experts in accounting and auditing.
WHERE YOU CAN FIND
MORE INFORMATION
This prospectus is part of
the registration statement on Form S-3 we filed with the SEC under the Securities Act. This prospectus does not contain all of the information
set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and
the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed
as a part of the registration statement. You should rely only on the information contained in this prospectus or incorporated by reference.
We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state
where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than
the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered
by this prospectus.
We must comply with the informational
requirements of the Exchange Act, and we are required to file reports and proxy statements and other information with the SEC. You may
read and copy these reports, proxy statements and other information on the SEC’s website at http://www.sec.gov, which contains reports,
proxy and information statements and other information regarding issuers like us that file electronically with the SEC. We maintain a
website at www.protaratx.com. The information contained in, or that can be accessed through, our website is not incorporated by reference
herein and is not part of this prospectus.
Statements contained in this
prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance we refer you to the
copy of the contract or document filed as an exhibit to the registration statement, each such statement being qualified in all respects
by such reference.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with it, which means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is an important part of this prospectus. Information in this prospectus supersedes
information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file
later with the SEC will automatically update and supersede the information in this prospectus. We also incorporate by reference into this
prospectus the documents listed below and any future filings made by us with the SEC (other than current reports or portions thereof furnished
under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items and other portions of documents
that are furnished, but not filed, pursuant to applicable rules promulgated by the SEC) that are filed by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which
this prospectus is a part and prior to effectiveness of the registration statement, and (ii) after the effectiveness of the registration
statement but prior to the termination of the offering of the securities covered by the applicable prospectus supplement:
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March
8, 2023; |
| ● | the description of our common stock contained in our registration statement on Form 8-A filed with the
SEC on October 16, 2014, including any amendments or reports filed for the purposes of updating this description. |
We will furnish without charge
to each person, including any beneficial owner, to whom this prospectus supplement and the accompanying prospectus is delivered, upon
written or oral request, a copy of any document incorporated by reference. Requests should be addressed to 345 Park Avenue South, Third
Floor, New York, New York 10010, Attn: Secretary or may be made telephonically at (646) 844-0337. Copies of these filings are filings
are also available, without charge, on the SEC’s website at www.sec.gov and on our website www.protaratx.com as soon as reasonably
practicable after they are filed electronically with the SEC. The information contained on our website is not part of this prospectus
supplement or the accompanying prospectus.
In accordance with Rule 412
of the Securities Act, any statement contained in a document incorporated by reference in this prospectus supplement or the accompanying
prospectus shall be deemed modified, superseded or replaced for the purposes of this prospectus supplement or the accompanying prospectus
to the extent that a statement contained in this prospectus supplement or the accompanying prospectus or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth
the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of
the securities being registered. All the amounts shown are estimates, except for the SEC registration fee and the Financial Industry Regulatory
Authority, Inc., or FINRA, filing fee.
SEC registration fee | |
$ | 32,730 | |
FINRA filing fee | |
| * | |
Accounting fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Trustee fees and expenses | |
| * | |
Printing and miscellaneous expenses | |
| * | |
Total | |
$ | * | |
* | These fees are calculated based on the securities offered
and the number of issuances and, accordingly, cannot be estimated at this time. |
Item 15. Indemnification of Officers and Directors
The registrant’s certificate
of incorporation and bylaws provide for indemnification of the registrant’s directors and officers to the fullest extent permitted
by law. Insofar as indemnification for liabilities under the Securities Act of 1933, as amended, or the Securities Act, may be permitted
to directors, officers or controlling persons of the registrant pursuant to the registrant’s certificate of incorporation, bylaws
and the Delaware General Corporation Law, or DGCL, the registrant has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Section 102(b)(7) of the DGCL
provides that a certificate of incorporation may include a provision that eliminates or limits the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, relating to prohibited dividends or
distributions or the repurchase or redemption of stock or (iv) for any transaction from which the director derives an improper personal
benefit. The registrant’s certificate of incorporation includes such a provision. As a result of this provision, the registrant
and its stockholders may be unable to obtain monetary damages from a director for breach of his or her duty of care.
As permitted under the DGCL,
the registrant has entered into indemnification agreements with each of its directors and executive officers that require the registrant
to indemnify such persons against any and all expenses (including attorneys’, witness or other professional fees), and unless in
connection with a proceeding by or in the right of the registrant, any and all judgments, fines and amounts paid in settlement, actually
and reasonably incurred by such persons or on such persons’ behalf in connection with any proceeding, whether actual or threatened,
to which any such person may be involved as a party or otherwise by reason of the fact that such person is or was a director or an executive
officer of the registrant or is or was serving at the request of the registrant as a director, officer, employee, agent or fiduciary of
another enterprise, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s
conduct was unlawful. Under these agreements, the registrant is not required to provide indemnification for certain matters, including:
| ● | indemnification beyond that permitted by applicable law; |
| ● | except as provided in the indemnification agreements, an accounting of profits made from the purchase
and sale (or sale and purchase) by such director or executive officer of securities of the registrant within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or similar provisions of state statutory law or common law; |
| ● | except as provided in the indemnification agreements, any reimbursement of the registrant by such director
or executive officer of any bonus or other incentive-based or equity-based compensation or of any profits realized by such director or
executive officer from the sale of securities of the registrant, as required in each case under the Exchange Act; or |
| ● | except as provided in the indemnification agreements, in connection with any proceeding initiated by such
director or executive officer, unless (i) the registrant’s board of directors authorized the proceeding prior to its initiation
or (ii) the registrant provides the indemnification, in its sole discretion, pursuant to the powers vested in the registrant under applicable
law. |
The indemnification agreements
also set forth certain procedures, presumptions and remedies that will apply in the event of a claim for indemnification thereunder.
Any underwriting agreement
that we may enter into may provide for indemnification by any underwriters, of us, our directors, our officers who sign the registration
statement and our controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
Exhibit Number |
|
|
1.1* |
|
Form of Underwriting Agreement. |
3.1 |
|
Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2014). |
3.2 |
|
Certificate of Amendment to the Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020). |
3.3 |
|
Second Certificate of Amendment to the Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on May 13, 2020). |
3.4 |
|
Composite Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.6 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 8, 2023). |
3.5 |
|
Second Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 3, 2017). |
3.6 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series 1 Convertible Non-Voting Preferred Stock (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020). |
3.7 |
|
Certificate of Amendment to the Certificate of Designation of Preferences, Rights and Limitations of Series 1 Convertible Non-Voting Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on September 23, 2020). |
4.1 |
|
Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7. |
4.2 |
|
Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 10, 2020). |
4.3 |
|
Registration Rights Agreement, dated as of September 23, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K, filed with the SEC on September 24, 2019). |
4.4* |
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. |
4.5 |
|
Form of Indenture, between the Company and one or more trustees to be named (incorporated by reference to Exhibit 4.7 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020). |
4.6* |
|
Form of Debt Securities. |
4.7 |
|
Form of Common Stock Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.9 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020). |
4.8 |
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.10 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020). |
4.9 |
|
Form of Debt Securities Warrant Agreement and Warrant Certificate (incorporated by reference to Exhibit 4.11 to the Registrant’s Registration Statement on Form S-3 filed with the SEC on May 14, 2020). |
5.1 |
|
Opinion of Sullivan & Cromwell LLP. |
10.1 |
|
Subscription Agreement, dated September 23, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K, filed with the SEC on September 24, 2019). |
10.2 |
|
First Amendment to Subscription Agreement, dated November 19, 2019, by and among the Registrant and the institutional investors named therein (incorporated by reference to Exhibit 99.12 to the Registrant’s Registration Statement on Form S-4 (File No. 333-234549)). |
23.1 |
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
23.2 |
|
Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1). |
24.1 |
|
Power of Attorney (included on signature page). |
25.1** |
|
Statement of Eligibility of Trustee under the Indenture. |
107 |
|
Calculation of Filing Fee Table. |
* | To be filed, if applicable, by amendment or by a report filed
under the Exchange Act and incorporated herein by reference. |
** | To be filed, if applicable, in accordance with the requirements
of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
Item 17. Undertakings
The undersigned registrant
hereby undertakes:
| (1) | To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (1)(i),
(1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration statement or are contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of this registration statement.
| (2) | That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser: |
| (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)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (6) | That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (7) | To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on November 3, 2023.
|
PROTARA THERAPEUTICS, INC. |
|
|
|
By |
/s/ Jesse Shefferman |
|
|
Jesse Shefferman
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jesse Shefferman, Patrick Fabbio and Mary J. Grendell, and each of them, as his or her
true and lawful attorney-in-fact and agent, with the full power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement on Form S-3 has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
/s/ Jesse Shefferman |
|
President and Chief Executive Officer and Director |
|
November 3, 2023 |
Jesse Shefferman |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Patrick Fabbio |
|
Chief Financial Officer |
|
November 3, 2023 |
Patrick Fabbio |
|
(Principal Financial Officer) |
|
|
|
|
|
|
|
/s/ Hannah Fry |
|
Vice President, Controller |
|
November 3, 2023 |
Hannah Fry |
|
(Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/ Luke Beshar |
|
Chairman of the Board of Directors |
|
November 3, 2023 |
Luke Beshar |
|
|
|
|
|
|
|
|
|
/s/ Barry Flannelly |
|
Director |
|
November 3, 2023 |
Barry Flannelly, Pharm.D. |
|
|
|
|
|
|
|
|
|
/s/ Roger Garceau |
|
Director |
|
November 3, 2023 |
Roger Garceau |
|
|
|
|
|
|
|
|
|
/s/ Jane Huang |
|
Director |
|
November 3, 2023 |
Jane Huang, M.D. |
|
|
|
|
|
|
|
|
|
/s/ Richard Levy |
|
Director |
|
November 3, 2023 |
Richard Levy, M.D. |
|
|
|
|
|
|
|
|
|
/s/ Gregory P. Sargen |
|
Director |
|
November 3, 2023 |
Gregory P. Sargen |
|
|
|
|
|
|
|
|
|
/s/ Cynthia Smith |
|
Director |
|
November 3, 2023 |
Cynthia Smith |
|
|
|
|
|
|
|
|
|
/s/ Michael Solomon |
|
Director |
|
November 3, 2023 |
Michael Solomon, Ph.D. |
|
|
|
|
Exhibit 5.1
[Letterhead of Sullivan & Cromwell LLP]
November 3, 2023
Protara Therapeutics, Inc.,
345 Park Avenue South, Third Floor,
New York, NY 10010.
Ladies and Gentlemen:
In connection with the registration under the Securities
Act of 1933 (the “Act”) of up to $300,000,000 of (i) shares of common stock, par value $0.001 per share (the “Common
Stock”), of Protara Therapeutics, Inc., a Delaware corporation (the “Company”), (ii) shares of preferred stock, par
value $0.001 per share, of the Company (the “Preferred Stock”), (iii) debt securities of the Company (the “Debt Securities”),
and (iv) warrants of the Company to purchase Common Stock, Preferred Stock or Debt Securities of the Company (the “Warrants,”
and, together with the Common Stock, Preferred Stock and Debt Securities, the “Securities”), pursuant to a Registration Statement
on Form S-3 (as amended from time to time, the “Registration Statement”), we, as your counsel, have examined such corporate
records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes
of this opinion.
Upon the basis of such examination,
it is our opinion that:
(1) When the Registration Statement
has become effective under the Act, the terms of the sale of the Common Stock have been duly established in conformity with the Company’s
certificate of incorporation, as amended, so as not to violate any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company and to include a number of shares of Common Stock to be issued not in excess of the number of shares
of Common Stock then authorized and not outstanding or reserved for issuance, and the Common Stock has been duly issued and sold for a
price per share determined by the Company’s Board of Directors or a duly authorized committee thereof which is not less than the
par value thereof, the Common Stock will be validly issued, fully paid and nonassessable.
(2) When the Registration
Statement has become effective under the Act, the terms of the Preferred Stock and its issuance and sale have been duly established in
conformity with the Company’s certificate of incorporation, as amended, so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company and to include a number of shares of Preferred Stock to be issued
not in excess of the number of shares of Preferred Stock then authorized and not outstanding or reserved for issuance, a certificate of
designations with respect to the Preferred Stock has been duly filed with the Secretary of State of the State of Delaware, and the Preferred
Stock has been duly issued and sold for a price per share determined by the Company’s Board of Directors or a duly authorized committee
thereof which is not less than the par value thereof, the Preferred Stock will be validly issued, fully paid and nonassessable.
(3) When the Registration Statement
has become effective under the Act, the indenture (the “Indenture”) relating to the Debt Securities has been duly authorized,
executed and delivered, the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with
the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over
the Company, and the Debt Securities have been duly authorized, executed and authenticated in accordance with the Indenture and issued
and sold as contemplated in the Registration Statement, the basic prospectus included therein and the appropriate prospectus supplement
or supplements, the Debt Securities will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
(4) When the Registration Statement
has become effective under the Act, the terms of the warrant agreement under which the Warrants are to be issued (the “Warrant Agreement”)
have been duly established and the Warrant Agreement has been duly authorized, executed and delivered by the parties thereto, the terms
of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement and the Warrants have
been duly executed and authenticated in accordance with the Warrant Agreement and issued and sold as contemplated by the Registration
Statement, and if all the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, the Warrants will constitute valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.
In connection with our opinion
set forth in paragraphs (1) through (4) above, we have assumed that at the time of the issuance, sale and delivery of each particular
Security there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security
and that the issuance, sale and delivery of such Security, all of the terms of such Security and the performance by the Company of its
obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company and will not result in a default under or a breach of any agreement or instrument then binding upon
the Company.
In rendering the foregoing opinion,
we are expressing no opinion as to Federal or state laws relating to fraudulent transfers and we are not passing upon, and assume no responsibility
for, any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale
of the Securities.
The foregoing opinion is limited
to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware,
and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain
factual matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible,
and we have assumed that (i) the governing documents under which the Securities are to be issued will have been duly authorized,
executed and delivered by all parties thereto other than the Company and (ii) that the signatures on documents examined by us are
genuine. We have further assumed that the issuance or delivery by the Company of any securities other than the Securities, or of any property,
upon exercise or otherwise pursuant to the terms of the Securities will be effected so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding on the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Securities”
in the prospectus contained therein. In giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Act.
|
Very truly yours, |
|
|
|
/s/ SULLIVAN & CROMWELL LLP |
3
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under
the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Protara Therapeutics, Inc. for the
registration of debt securities, common stock, preferred stock, and warrants and to the incorporation by reference therein of our report
dated March 8, 2023, with respect to the consolidated financial statements of Protara Therapeutics, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
|
|
|
New York, New York |
|
|
|
November 3, 2023 |
|
Exhibit 107
Calculation of Filing Fee
Tables
Form S-3
(Form Type)
Protara Therapeutics, Inc.
(Exact Name of Registrant as Specified
in its Charter)
Table 1: Newly Registered
and Carry Forward Securities
| |
Security
Type | |
Security
Class Title | |
Fee
Calculation or Carry
Forward Rule | |
Amount
Registered(1) | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum
Aggregate
Offering Price | | |
Fee
Rate | | |
Amount
of
Registration
Fee(3) | | |
Carry
Forward
Form Type | |
Carry
Forward
File Number | |
Carry
Forward
Initial Effective
Date | |
Filing
Fee
Paid in
Connection
with Unsold
Securities to
be Carried
Forward | |
Newly
Registered Securities |
Fees
to Be Paid | |
- | |
- | |
- | |
- | |
| - | | |
| - | | |
| - | | |
| - | | |
- | |
- | |
- | |
| - | |
Fees
Previously Paid | |
- | |
- | |
- | |
- | |
| - | | |
| - | | |
| - | | |
| - | | |
- | |
- | |
- | |
| - | |
Carry
Forward Securities
|
Carry
Forward Securities | |
Equity | |
Common
Stock, par value $0.001 per share | |
415(a)(6) | |
(2) | |
| | | |
| | | |
| | | |
| | | |
S-3 | |
333-251224 | |
December
18, 2020 | |
| | |
Carry
Forward Securities | |
Equity | |
Preferred
Stock, par value $0.001 per share | |
415(a)(6) | |
(2) | |
| | | |
| | | |
| | | |
| | | |
S-3 | |
333-251224 | |
December
18, 2020 | |
| | |
Carry
Forward Securities | |
Debt | |
Debt
Securities | |
415(a)(6) | |
(2) | |
| | | |
| | | |
| | | |
| | | |
S-3 | |
333-251224 | |
December
18, 2020 | |
| | |
Carry
Forward Securities | |
Other | |
Warrants | |
415(a)(6) | |
(2) | |
| | | |
| | | |
| | | |
| | | |
S-3 | |
333-251224 | |
December
18, 2020 | |
| | |
Carry
Forward Securities | |
Unallocated
(Universal) Shelf | |
Unallocated
(Universal) Shelf | |
415(a)(6) | |
(2) | |
| | | |
$ | 300,000,000 | | |
| | | |
| | | |
S-3 | |
333-251224 | |
December
18, 2020 | |
$ | 32,730 | |
| |
Total
Offering Amounts
|
| |
| | | |
$ | 300,000,000 | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Total
Fees Previously Paid |
| |
| | | |
| | | |
| | | $ |
32,730 | | | |
| |
| |
| |
| | |
| |
Total
Fee Offsets
|
| |
| | | |
| | | |
| | | |
- | | | |
| |
| |
| |
| | |
| |
Net
Fee Due
|
| |
| | | |
| | | |
| | | $ |
0 | | | |
| |
| |
| |
| | |
(1) | This registration statement covers the registration of such
indeterminate number of (a) shares of common stock, (b) shares of preferred stock, (c) debt securities and (d) warrants to purchase shares
of common stock, shares of preferred stock or debt securities of the registrant, as may be offered and sold from time to time by the
registrant. In no event will the aggregate offering price of all types of securities issued by the registrant pursuant to this registration
statement exceed $300,000,000. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with
respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(2) | Pursuant to Rule 415(a)(6) under the Securities Act, the
securities registered pursuant to this registrant statement include $300,000,000 of unsold securities previously registered on the registrant’s
registration statement on Form S-3 (File No. 333-251224) (the “Prior Registration Statement”), which was originally filed
with the Securities and Exchange Commission (the “SEC”) on December 9, 2020, and declared effective by the SEC on December
18, 2020 (the “Unsold Securities”). The registrant previously paid a fee of $32,730 in connection with the filing of the
Prior Registration Statement, of which $32,730 relates to $300,000,000 of the Unsold Securities. The previously paid filing fee relating
to such Unsold Securities under the Prior Registration Statement will continue to be applied to such Unsold Securities registered on
this registration statement. 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 Prior Registration Statement during the grace period afforded by Rule 415(a)(5). To the extent that, after
the filing date hereof and prior to effectiveness of this Registration Statement, the registrant sells any Unsold Securities under the
Prior Registration Statement pursuant to Rule 415(a)(6), the Registrant will identify in a pre-effective amendment to this Registration
Statement the updated amount of Unsold Securities from the Prior Registration Statement to be included in this registration statement
pursuant to Rule 415(a)(6) and the updated amount of securities to be registered on this Registration Statement, if any. Pursuant to
Rule 415(a)(6) under the Securities Act, the offering of the Unsold Securities under the Prior Registration Statement will be deemed
terminated as of the date of effectiveness of this Registration Statement. |
(3) | The registration fee has been calculated pursuant to Rule
457(o) under the Securities Act based on the proposed maximum aggregate offering price of the shares to be sold. The registrant has determined
to include in this Registration Statement $300,000,000 of the Unsold Securities under the Prior Registration Statement, but which remain
unsold as of the date hereof. Pursuant to Rule 415(a)(6) under the Securities Act, the filing fee relating to such Unsold Securities
under the Prior Registration Statement, which was paid under the Prior Registration Statement, will continue to be applied to such Unsold
Securities registered pursuant to this Registration Statement. Accordingly, the “Amount of Registration Fee” for the offering
above reflects only the filing fee attributable to the $300,000,000 of securities registered on this Registration Statement. |
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