As filed with the Securities and Exchange
Commission on August 6, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLX PHARMA INC.
(Exact name of registrant as specified in
its charter)
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Delaware
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46-4995704
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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PLx Pharma Inc.
9 Fishers Lane, Suite E
Sparta, New Jersey 07871
(973) 409-6541
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive office)
Natasha Giordano
President and Chief Executive Officer
PLx Pharma Inc.
9 Fishers Lane, Suite E
Sparta, New Jersey 07871
(973) 409-6541
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a Copy to:
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Robert Friedman, Esq.
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, New York 10019
(212) 451-2300
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Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated Filer
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Aggregate
Offering Price
Per Unit(1)(2)
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Proposed
Maximum
Aggregate
Offering Price(1)(2)
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Amount of
Registration Fee(3)
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Common Stock, par value of $0.001 per share
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Preferred Stock, par value of $0.001 per share
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Debt Securities
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Warrants
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Units
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Rights
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Total:
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$250,000,000
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$27,275
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(1)
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There are being registered hereunder an indeterminate number of shares
of common stock and preferred stock, an indeterminate principal amount of debt securities, an indeterminate number of warrants to purchase
common stock, preferred stock or debt securities, an indeterminate number of units, and an indeterminate number of rights to purchase
an indeterminate number of common stock or preferred stock, from time to time, which together shall have an aggregate initial offering
price not to exceed $250,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt
securities shall be in such greater principal as shall result in an aggregate offering price not to exceed $250,000,000 less the aggregate
dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The proposed maximum offering price of the securities will be determined, from time to time, by
the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. The securities registered hereunder
also include an indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon
conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or
rights or pursuant to the antidilution provisions of any the securities registered hereunder. In addition, pursuant to Rule 416 under
the Securities Act of 1933, as amended, or the Securities Act, the shares being registered hereunder include an indeterminate number of
shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions.
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(2)
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The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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The Registrant hereby amends this Registration Statement
on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically
states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until
the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section
8(a), may determine.
EXPLANATORY NOTE
This Registration Statement contains two prospectuses:
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a base prospectus which covers the offering, issuance and sale by us of up to $250,000,000 in the aggregate of the securities identified
above from time to time in one or more offerings; and
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an equity distribution agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price
of $75,000,000 of our common stock in an at the market offering that may be issued and sold under an equity distribution agreement with
JMP Securities LLC, or JMP Securities.
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The base prospectus immediately follows this explanatory note. The
specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base
prospectus. The equity distribution agreement prospectus immediately follows the base prospectus. The $75,000,000 of common stock that
may be offered, issued and sold under the equity distribution agreement prospectus is included in the $250,000,000 of securities that
may be offered, issued and sold by us under the base prospectus. Upon termination of the equity distribution agreement with JMP Securities,
any portion of the $75,000,000 included in the equity distribution agreement prospectus that is not sold pursuant to the equity distribution
agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares of our common stock are sold
under the equity distribution agreement, the full $250,000,000 of securities may be sold in other offerings pursuant to the base prospectus
and an accompanying prospectus supplement.
The information in this prospectus is not
complete and may be changed. We may not sell 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 an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
AUGUST 6, 2021
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Rights
From time to time, we may offer and sell up
to an aggregate amount of $250,000,000 of any combination of the securities described in this prospectus, either individually or in combination,
in one or more offerings. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion
of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
Our common stock is listed on The Nasdaq Capital
Market, or Nasdaq, under the symbol “PLXP.” On August 3, 2021 the last reported sale price of our common stock on Nasdaq
was $18.41 per share.
Investing in these securities involves a
high degree of risk. See “Risk Factors” on page 4 of this prospectus and in any applicable prospectus supplement and
in the documents incorporated by reference herein and therein for a discussion of the factors you should carefully consider before deciding
to invest in our securities.
We will provide the specific terms of any securities
we may offer in supplements to this prospectus. You should read this prospectus and any accompanying prospectus supplement carefully
before you invest. This prospectus may not be used to offer and sell any securities unless accompanied by a prospectus supplement describing
the amount of and terms of the offering of those securities.
We may offer and sell the securities
described in this prospectus to or through one or more underwriters, dealers or agents, or directly to purchasers on an immediate,
continuous or delayed basis. The names of any underwriters, dealers or agents involved in the sale of any securities, the specific
manner in which they may be offered and any applicable commissions or discounts will be set forth in an accompanying prospectus
supplement covering the sales of those securities.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy
of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2021
TABLE OF CONTENTS
You should rely only on the
information contained in or incorporated by reference into this prospectus, in any accompanying prospectus supplement or any free
writing prospectuses prepared by or on behalf of us or to which we have referred you. We have not authorized any person to give
any information or to make any representations other than those contained or incorporated by reference in this prospectus, any
accompanying prospectus supplement, or any free writing prospectuses prepared by or on behalf of us or to which we have referred
you, and, if given or made, you must not rely upon the information or representations as having been authorized. This prospectus,
any accompanying prospectus supplement and any free writing prospectuses prepared by or on behalf of us or to which we have referred
you, do not constitute an offer to sell or the solicitation of an offer to buy securities, nor do this prospectus or any accompanying
supplement to this 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. The information contained in this prospectus, any accompanying
prospectus supplement, and any free writing prospectuses prepared by or on behalf of us or to which we have referred you, speaks
only as of the date set forth on the cover page and may not reflect subsequent changes in our business, financial condition, results
of operations and prospects even though this prospectus, any accompanying prospectus supplement, and any free writing prospectuses
prepared by or on behalf of us or to which we have referred you, is delivered or securities are sold on a later date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration
process. Under this shelf registration statement, we may from time to time sell any one or more, or a combination of, the securities
described in this prospectus in one or more offerings for up to a total dollar amount of $250,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we offer and sell our securities, we will provide one
or more prospectus supplements that will contain specific information about the terms of the 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.
This prospectus does not contain all
of the information included in the registration statement. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including its exhibits. Each prospectus supplement and any free writing prospectuses
prepared by or on behalf of us or to which we have referred you may also add, update or change information contained in this prospectus
and may include a discussion of any risk factors or other special considerations that apply to the offered securities.
Before making an investment decision,
it is important for you to read and consider the information contained in this prospectus, any accompanying prospectus supplement,
and any free writing prospectuses prepared by or on behalf of us or to which we have referred you, together with the additional
information described under the heading “Where You Can Find More Information” and “Incorporation of Certain Information
by Reference” below.
This prospectus may not be used to
offer to sell, solicit an offer to buy or consummate a sale of securities unless it is accompanied by a prospectus supplement.
If there is any inconsistency between information in this prospectus and any accompanying prospectus supplement, you should rely
on the information in the latest supplement and documents incorporated by reference herein and therein.
This prospectus includes and incorporates
by reference, references to our trademarks, trade names and service marks, such as PLX®, PLXPHARMA®, PLXGUARD™, VAZALORE™
and First Liquid-Filled Aspirin capsules™, which are protected under applicable intellectual property laws and are our property.
This prospectus also contains and incorporates by reference, references to trademarks, trade names and service marks of other companies,
which are the property of their respective owners. Solely for convenience, trademarks and trade names referred to in this prospectus
or any document incorporated by reference, may appear without the ®, TM or SM symbols, but such references are not intended
to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable
licensor to these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks,
trade names or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement
or sponsorship of us by, these other parties.
Unless otherwise indicated herein,
references in this prospectus to the “Company,” “we,” “us” and “our” refer to PLx
Pharma Inc., a Delaware corporation, together with our consolidated subsidiary.
ABOUT PLX PHARMA
INC.
Overview
We are a specialty pharmaceutical company focused on
our clinically-validated and patent-protected PLxGuardTM drug delivery platform designed to provide more effective and
safer products. The PLxGuard drug delivery platform works by targeting the release of active pharmaceutical ingredients to various portions
of the gastrointestinal tract. We believe this platform has the potential to improve the absorption of many drugs currently on the market
or in development, and to reduce the risk of stomach erosions and ulcers associated with certain drugs.
VAZALORE, available in
two doses 325 mg and 81 mg, is approved by the U.S. Food and Drug Administration (“FDA”). VAZALORE is a novel formulation
of aspirin clinically shown to provide fast, reliable and predictable platelet inhibition for patients with vascular disease and diabetic
patients who may be candidates for aspirin therapy as compared to the current standard of care, enteric-coated aspirin. It is also clinically
shown to reduce the risk of stomach erosions and ulcers as compared with immediate-release aspirin, after seven days of treatment.
Our commercialization strategy will target the over-the-counter
market, taking advantage of the existing distribution channels for aspirin. We intend to market VAZALORE to the healthcare professional
and the consumer through several sales and marketing channels. Our product pipeline also includes other oral NSAIDs using the PLxGuard
drug delivery platform that may be developed, including PL1200 Ibuprofen 200 mg and PL1200 Ibuprofen 400 mg, for pain and inflammation
in Phase I clinical stage.
For additional information about our company, please
refer to other documents we have filed with the SEC and that are incorporated by reference into this prospectus, as listed under the heading
“Incorporation of Certain Information by Reference.”
Company Information
We were originally incorporated
in Texas in 2002 and re-incorporated in Delaware in 2015. Our principal executive offices are located at 9 Fishers Lane, Suite E, Sparta,
NJ 07871, and our telephone number is (973) 409-6541. Our website address is www.plxpharma.com. We have not incorporated by reference
into this Registration Statement the information in, or that can be accessed through, our website and you should not consider it to be
a part of this Registration Statement.
On April 19, 2017, Dipexium Acquisition Corp., a Delaware corporation (“Merger Sub”)
and a wholly-owned subsidiary of Dipexium Pharmaceuticals, Inc., a Delaware corporation (“Dipexium”), merged with and into
PLx Pharma Inc., a privately-held Delaware corporation (“Old
PLx”), pursuant to the terms of that certain Agreement and Plan of Merger and Reorganization dated as of December 22, 2016 by and
among Dipexium, Merger Sub and Old PLx (the “Merger”). As part of the Merger, Dipexium was re-named PLx Pharma Inc. and Old
PLx was re-named PLx Opco Inc. Following completion of the Merger, Old PLx became a wholly-owned subsidiary of the Company. Since the
completion of the Merger, the business we have conducted has been primarily the business of Old PLx.
RISK FACTORS
Investing in our securities involves
significant risks. Before deciding whether to invest in our securities, you should consider carefully the risks, uncertainties
and assumptions described in this prospectus and any accompanying prospectus supplement, including the risk factors set forth in
our filings with the SEC that are incorporated by reference herein and therein, including the risk factors in our most recent Annual
Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q, and which may be amended, supplemented or
superseded from time to time by other reports we file with the SEC in the future. There may be other unknown or unpredictable economic,
business, competitive, regulatory or other factors that could have material adverse effects on our future results. If any of these
risks actually occurs, our business, business prospects, financial condition or results of operations could be seriously harmed.
Please also read carefully the section below entitled “Cautionary Note Regarding Forward-Looking Statements.”
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act,
and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These forward-looking statements reflect
management’s beliefs and assumptions. In addition, these forward-looking statements reflect management’s current views
with respect to future events or our financial performance, and involve certain known and unknown risks, uncertainties and other
factors, including those identified below, which may cause our or our industry’s actual or future results, levels of activity,
performance or achievements to differ materially from those expressed or implied by any forward-looking statements or from historical
results. We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained
in Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements include information concerning
our possible or assumed future results of operations and statements preceded by, followed by, or that include the words “may,”
“will,” “could,” “would,” “should,” “believe,” “expect,”
“plan,” “anticipate,” “intend,” “estimate,” “predict,” “potential”
or similar expressions.
Forward-looking statements are inherently
subject to risks and uncertainties, many of which we cannot predict with accuracy and some of which we might not even anticipate.
Although we believe that the expectations reflected in the forward-looking statements are based upon reasonable assumptions at
the time made, we can give no assurance that the expectations will be achieved. Future events and actual results, financial and
otherwise, may differ materially from the results discussed in the forward-looking statements. Readers are cautioned not to place
undue reliance on these forward-looking statements. We have no duty to update or revise any forward-looking statements after the
date of this prospectus or to conform them to actual results, new information, future events or otherwise.
The factors described under “Risk
Factors” in this prospectus or any accompanying prospectus supplement, and in any documents incorporated by reference into
this prospectus or any accompanying prospectus supplement, and other factors could cause our or our industry’s future results
to differ materially from historical results or those anticipated or expressed in any of our forward-looking statements. We operate
in a continually changing business environment, and new risk factors emerge from time to time. Other unknown or unpredictable factors
also could have material adverse effects on our future results, performance or achievements. We cannot assure you that projected
results or events will be achieved or will occur.
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
we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from the sale of
the securities offered by us hereunder, if any, for working capital and general corporate purposes, including research and development
expenses, sales and marketing expenses, general and administrative expenses and capital expenditures. We may also use a portion
of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although we
have no current commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth
in the applicable prospectus supplement our intended use for the net proceeds received from the sale of any securities sold pursuant
to the prospectus supplement. Pending the use of the net proceeds from any such offering, we may invest the net proceeds in investment
grade, short-term interest-bearing obligations, such as money-market funds, certificates of deposit, or direct or guaranteed obligations
of the United States government, or hold the net proceeds as cash.
DIVIDEND POLICY
We have never declared or paid cash dividends
on our capital stock. We currently intend to retain all available funds and any future earnings to fund the development and growth of
the Company’s business. In addition, no dividends will be declared or paid or set apart for payment on the Company’s common
stock unless all accumulated accrued and unpaid dividends in respect of our Series A Preferred Stock (as defined below) and Series B Preferred
Stock (as defined below) have been paid or declared and set apart for payment to the holders of Series A Preferred Stock and Series B
Preferred Stock. Therefore, the Company does not currently expect to pay any cash dividends on the Company’s common stock for the
foreseeable future. Any future determination to pay cash dividends will be at the discretion of our board of directors (the “Board
of Directors”) and will depend upon our results of operations, financial condition, capital requirements, general business conditions,
and other factors that the Board of Directors deems relevant. The Company’s ability to pay dividends may also be restricted by the
terms of any future credit agreement or any future debt or preferred equity securities of ours or of our subsidiary.
DESCRIPTION OF
CAPITAL STOCK
The following description of our capital stock
and certain provisions of our amended certificate of incorporation (as amended, the “Certificate of Incorporation”) and amended
and restated bylaws (the “Bylaws”) are summaries and are qualified by reference to our Certificate of Incorporation and Bylaws.
Copies of these documents are filed with the SEC as exhibits to the registration statement of which this prospectus forms a part.
Authorized Capital Stock
We are currently authorized to issue 100,000,000
shares of common stock, par value $0.001 per share, and 1,000,000 shares of preferred stock, par value $0.001 per share. As of August
3, 2021, we had 26,890,254 shares of common stock issued and outstanding and 12,642 shares of Series A Convertible Preferred Stock (“Series
A Preferred Stock”) and 2,364 shares of Series B Convertible Preferred stock (“Series B Preferred Stock”) issued and
outstanding. As of August 3, 2021, there were 67 holders of record of our common stock, which do not include stockholders that beneficially
own shares held in street name by brokers or other nominees.
Common Stock
The holders of our common stock are entitled
to one vote per share on all matters submitted to a vote of stockholders. We have not provided for cumulative voting for the election
of directors in our Certificate of Incorporation. Subject to preferences that may apply to any shares of preferred stock outstanding
at the time, the holders of our common stock are entitled to receive dividends out of funds legally available if our Board of Directors,
in its discretion, determines to issue dividends and then only at the times and in the amounts that our Board of Directors may
determine. We have not paid any cash dividends on our common stock, and it is unlikely that any cash dividends will be declared
or paid on any common stock in the foreseeable future. Instead, we plan to retain our cash for use in the operation of our business.
Our common stock is not entitled to preemptive rights, and is not subject to conversion, redemption or sinking fund provisions.
If we become subject to a liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders
would be distributable ratably among the holders of our common stock and any participating preferred stock outstanding at that
time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation
preferences, if any, on any outstanding shares of preferred stock.
Preferred Stock
We currently have 1,000,000 shares of preferred
stock authorized, par value $0.001 per share. In February 2019, pursuant to this authorization, the Company designated 45,000 shares as
Series A Preferred Stock and issued 15,000 of such shares. In May 2020, pursuant to this authorization, the Company designated 25,000
shares as Series B Preferred Stock and issued 8,000 of such shares. On June 9, 2021, Park West (as defined below) converted an aggregate
of (i) 2,358 shares of Series A Preferred Stock into an aggregate of 1,064,517 shares of common stock, and (ii) 5,636 shares of Series
B Preferred Stock into an aggregate of 1,935,483 shares of common stock. This leaves 32,358 shares of authorized but unissued Series A
Preferred Stock and 22,636 shares of authorized but unissued Series B Preferred Stock.
Under the terms of our Certificate of
Incorporation, our Board of Directors is authorized to direct us to issue such shares of preferred stock in one or more series
without stockholder approval. Our Board of Directors has the discretion to determine the rights, preferences, privileges and restrictions,
including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series
of preferred stock. The purpose of authorizing our Board of Directors to issue preferred stock and determine its rights and preferences
is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of
our outstanding voting stock. We have no present plans to issue any additional shares of preferred stock.
Series A Preferred Stock
The Company currently has 45,000 shares of Series
A Preferred Stock authorized. On February 20, 2019, the Company issued to Park West Investors Master Fund, Limited, a Cayman Islands exempted
company, and Park West Partners International, Limited, a Cayman Islands exempted company (together with Park West Investors Master Fund,
Limited, “Park West” and each, a “Park West Investor”), 15,000 shares of the Series A Preferred Stock, par value
$0.001 per share, at a price of $1,000 per share, subject to the terms of the Amended and Restated Certificate of Designations, Preferences
and Rights of Series A Convertible Preferred Stock (the “Series A Certificate of Designation”). Pursuant to the Series A Certificate
of Designation, each share of Series A Preferred Stock can be converted, at the holder’s option at any time, into shares of the
Company’s common stock at a conversion rate equal to the quotient of (i) the $1,000 stated value divided by (ii) the initial conversion
price of $2.60, subject to specified adjustments for stock splits, cash or stock dividends, recapitalizations, combinations, subdivisions
or other similar events as set forth in the Series A Certificate of Designation. The Series A Preferred Stock contain limitations that
prevent the holder from acquiring shares of the Company’s common stock upon conversion that would result in the number of shares
beneficially owned by such holder and its affiliates exceeding the Beneficial Ownership Limitation (as defined in the Series A Certificate
of Designation). On June 9, 2021, Park West converted an aggregate of 2,358 shares of Series A Preferred Stock into an aggregate of 1,064,517
shares of common stock and, as a result of certain adjustments, the conversion price of the Series A Preferred Stock was reduced to $2.22
per share from $2.60 per share.
Each holder of shares of Series A Preferred
Stock will also receive quarterly dividends ending on the Dividend End Date (as defined in the Series A Certificate of Designation). Such
dividends will be paid by the Company out of funds legally available therefor, payable, subject to the conditions and other terms set
forth in the Series A Certificate of Designation, in cash or in-kind in additional shares of Series A Preferred Stock on the stated value
of such shares of Series A Preferred Stock at the dividend rate of eight percent (8%) per annum, which ended on February 26, 2021, the
date of the FDA’s approval of the supplemental NDA of VAZALORE 325 mg and VAZALORE 81mg. To the extent that applicable law or any
of the Company’s existing contractual restrictions prohibit any required issuance of additional shares of Series A Preferred Stock
as in-kind dividends or otherwise (the “Additional Series A Shares”), then appropriate adjustment to the conversion price
of the Series A Preferred Stock shall be made at the time of a conversion of shares of Series A Preferred Stock or calculation of the
number of shares of Common Stock into which shares of Series A Preferred Stock are convertible, such that the number of resulting conversion
shares includes the aggregate number of shares of Common Stock into which such Series A Preferred Stock shares plus any Additional Series
A Shares would be convertible.
Each share of Series A Preferred Stock carries a liquidation
preference equal to its stated value of $1,000 (as adjusted thereunder) plus accrued and unpaid dividends thereon, and also carries a
redemption right upon certain change of control transactions equal to the greater of the liquidation preference and the value of the common
stock issuable upon conversion thereof (without regard to the Beneficial Ownership Limitation), based upon a thirty-day volume weighted
average price of the common stock prior to the date of the redemption request.
The holders of the Series A Preferred Stock,
voting as a separate class, have customary consent rights with respect to certain corporate actions of the Company, including (a) authorizing,
creating, designating, establishing, issuing or selling an increased number of shares of Series A Preferred Stock or any other class or
series of capital stock ranking senior to or on parity with the Series A Preferred Stock as to dividends or upon liquidation; (b) adopting
a plan for the liquidation, dissolution or winding up of the affairs of the Company or any recapitalization plan, file any petition seeking
protection under any federal or state bankruptcy or insolvency law or make a general assignment for the benefit of creditors; (c) entering
into any Change of Control Transaction (as defined in the Series A Certificate of Designation); (d) entering into any transaction with
any affiliate or shareholder of the Company, which transaction has the effect, directly or indirectly, of causing a distribution to such
affiliate or shareholder in preference to the Series A Preferred Stock; (e) incurring, assuming or suffering to exist any indebtedness
for borrowed money in excess of $15,000,000 in the aggregate; (f) amending, altering or repealing the Certificate of Incorporation or
Bylaws and the powers, preferences, privileges, relative, participating, optional and other special rights and qualifications, limitations
and restrictions thereof, which would adversely affect any right, preference, privilege or voting power of the Series A Preferred Stock,
or which would increase or decrease the amount of authorized shares of the Series A Preferred Stock or of any other series of preferred
stock ranking senior to the Series A Preferred Stock; or (g) materially change the nature or scope of the business of the Company or enter
into any new line of business.
In addition, the holders of the Series A Preferred
Stock have the exclusive right, voting separately as a class, to elect one (1) director (the “Series A Director”) to the Board
of Directors of the Company, for so long as Park West Asset Management LLC and its affiliates hold at least twenty-five percent (25%)
of the issued and outstanding Series A Preferred Stock. Mr. Bartsh was designated for election to, and currently serves as, the Series
A Director.
Series B Preferred Stock
The Company currently has 25,000 shares of
Series B Preferred Stock authorized. On May 15, 2020, the Company issued to Park West and MSD Credit Opportunity Master Fund, L.P.,
a Cayman Islands exempted limited partnership (together with Park West, the “Investors”) 8,000 shares of Series B
Preferred Stock, par value $0.001 per share, at a price of $1,000 per share, subject to the terms of the Certificate of
Designations, Preferences and Rights of Series B Convertible Preferred Stock (the “Series B Certificate of
Designation”). On June 9, 2021, Park West converted an aggregate of 5,636 shares of Series B Preferred Stock into an aggregate
of 1,935,483 shares of common stock and, as a result of certain adjustments, the conversion price of the Series B Preferred Stock
with respect to Park West’s shares was reduced to $2.91 per share from $3.10 per share.
Pursuant to the Series B Certificate of Designation,
each share of Series B Preferred Stock can be converted, at the holder’s option at any time, into shares of the Company’s
common stock at a conversion rate equal to the quotient of (i) the $1,000 stated value divided by (ii) the initial conversion price of
$3.10, subject to specified adjustments for stock splits, cash or stock dividends, recapitalizations, combinations, subdivisions or other
similar events as set forth in the Series B Certificate of Designation. The Series B Preferred Stock contain limitations that prevent
the holder from acquiring shares of the Company’s common stock upon conversion that would result in the number of shares beneficially
owned by such holder and its affiliates exceeding the Beneficial Ownership Limitation (as defined in the Series B Certificate of Designation).
Each holder of shares of Series B Preferred
Stock will also receive quarterly dividends ending on the Dividend End Date (as defined in the Series B Certificate of Designation). Such
dividends will be paid by the Company out of funds legally available therefor, payable, subject to the conditions and other terms set
forth in the Series B Certificate of Designation, in cash or in-kind in additional shares of Series B Preferred Stock on the stated value
of such shares of Series B Preferred Stock at the dividend rate of eight percent (8%) per annum, which ended on February 26, 2021, the
date of the FDA’s approval of the supplemental NDA of VAZALORE 325 mg and VAZALORE 81mg. To the extent that applicable law or any
of the Company’s existing contractual restrictions prohibit any required issuance of additional shares of Series B Preferred Stock
as in-kind dividends or otherwise (the “Additional Series B Shares”), then appropriate adjustment to the conversion price
of the Series B Preferred Stock shall be made at the time of a conversion of shares of Series B Preferred Stock or calculation of the
number of shares of Common Stock into which shares of Series B Preferred Stock are convertible, such that the number of resulting conversion
shares includes the aggregate number of shares of Common Stock into which such Series B Preferred Stock shares plus any Additional Series
B Shares would be convertible.
Each share of Series B Preferred Stock carries
a liquidation preference equal to its stated value of $1,000 (as adjusted thereunder) plus accrued and unpaid dividends thereon, and also
carries a redemption right upon certain change of control transactions equal to the greater of the liquidation preference and the value
of the common stock issuable upon conversion thereof (without regard to the Beneficial Ownership Limitation), based upon a thirty-day
volume weighted average price of the common stock prior to the date of the redemption request.
The holders of the Series B Preferred Stock,
voting as a separate class, have customary consent rights with respect to certain corporate actions of the Company, including (a) authorizing,
creating, designating, establishing, issuing or selling an increased number of shares of Series B Preferred Stock or any other class or
series of capital stock ranking senior to or on parity with the Series B Preferred Stock as to dividends or upon liquidation; (b) adopting
a plan for the liquidation, dissolution or winding up of the affairs of the Company or any recapitalization plan, file any petition seeking
protection under any federal or state bankruptcy or insolvency law or make a general assignment for the benefit of creditors; (c) entering
into any Change of Control Transaction (as defined in the Series B Certificate of Designation); (d) entering into any transaction with
any affiliate or shareholder of the Company, which transaction has the effect, directly or indirectly, of causing a distribution to such
affiliate or shareholder in preference to the Series B Preferred Stock; (e) incurring, assuming or suffering to exist any indebtedness
for borrowed money in excess of $15,000,000 in the aggregate; (f) amending, altering or repealing the Certificate of Incorporation or
Bylaws and the powers, preferences, privileges, relative, participating, optional and other special rights and qualifications, limitations
and restrictions thereof, which would adversely affect any right, preference, privilege or voting power of the Series B Preferred Stock,
or which would increase or decrease the amount of authorized shares of the Series B Preferred Stock or of any other series of preferred
stock ranking senior to the Series B Preferred Stock; or (g) materially change the nature or scope of the business of the Company or enter
into any new line of business.
In addition, the holders of the Series B Preferred
Stock have the exclusive right, voting separately as a class, to elect one (1) director (the “Series B Director”) to the Board
of Directors of the Company, for so long as Park West Asset Management LLC and its affiliates hold at least twenty-five percent (25%)
of the issued and outstanding Series B Preferred Stock; provided that, so long as the holders of Series A Preferred Stock have the right
to elect a Series A Director, the Series B Director shall be the same individual as the Series A Director. Mr. Bartsh currently serves
as the Series A Director and the Series B Director.
Authorized but Unissued Capital Stock
The authorized but unissued shares of
our common stock and our preferred stock are available for future issuance without stockholder approval, subject to any limitations
imposed by the Nasdaq Marketplace Rules.
These additional shares may be used for
a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means
of a proxy contest, tender offer, merger or otherwise.
Options
As of August 3, 2021, we had outstanding options
to purchase an aggregate of 3,111,297 shares of our common stock, with a weighted average strike price of $9.21 per share, under our equity
compensation plans.
Warrants
As of August 3, 2021, we had outstanding warrants
to purchase an aggregate of 6,804,314 shares of common stock, which includes (i) 2,457,501 shares of common stock, with an exercise price
of $7.50 per share, (ii) 58,502 warrants to purchase shares of our common stock with an exercise price of $6.41 per share and (iii) 4,288,311
warrants to purchase shares of our common stock with an exercise price of $4.31 per share.
Demand Registration Rights
Pursuant to the Registration Rights Agreement,
dated as of December 20, 2018 (the “Series A Registration Rights Agreement”), entered into by the Company and Park West, in
the event that (x) the Company has issued to a Park West Investor any PIK Shares or (y) there is a change in the Conversion Price (as
defined in the Series A Certificate of Designation) (the “Additional Registrable Securities”), the Company upon the written
request of Park West holding not less than an aggregate of 500,000 Additional Registrable Securities, shall prepare and file with the
SEC one of more registration statements on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration
statement as is then available to effect a registration for resale of the Additional Registrable Securities) or amending the registration
statement to be filed with the SEC in connection with the Initial Registrable Securities (as defined in the Registration Rights Agreement),
if such registration statement has not previously been declared effective, but only to the extent the Additional Registrable Securities
are not at the time covered by an effective registration statement. We are required to pay all expenses relating to any demand registration
by the holders of Registrable Securities (as defined in the Series A Registration Rights Agreement) under the Series A Registration Rights
Agreement, subject to certain limitations, up to an aggregate of $10,000.
Pursuant to the Registration Rights Agreement,
dated as of March 12, 2020 (the “Series B Registration Rights Agreement”), entered into by the Company and the Investors,
the Company agreed to undertake to file, within thirty days following the earlier of the date of the closing of the Closing Date (as defined
in the Series B Registration Rights Agreement) or July 15, 2020, a registration statement to register the shares of common stock issuable,
as applicable, upon either (x) conversion of the shares of Series B Preferred Stock issuable pursuant to the Purchase Agreement (as defined
in the Series B Registration Rights Agreement) or (y) exercise of the Warrants (as defined in the Series B Registration Rights Agreement);
and to cause such registration statement to be declared effective by the SEC as promptly as reasonably practicable following the filing
date and maintain the effectiveness of the registration statement until all of such shares of common stock registered have been sold or
are otherwise able to be sold pursuant to Rule 144. We are required to pay all expenses relating to any demand registration by the holders
of Registrable Securities (as defined in the Series B Registration Rights Agreement) under the Series B Registration Rights Agreement,
subject to certain limitations, up to an aggregate of $10,000.
Piggyback Registration Rights
Pursuant to the Series A Registration Rights
Agreement and Series B Registration Rights Agreement, whenever we propose to register any of our securities under the rules and regulations
of the SEC, other than pursuant to a registration statement on Form S-4 or Form S-8 (or similar or successor form) with respect to an
offering of the Company’s common stock by the Company for its own account or for the account of any of its stockholders, the Company
shall at each such time promptly give written notice to the holders of the Registrable Securities (as defined in the applicable Registration
Rights Agreement) of its intention to do so (but in no event less than thirty (30) days before the anticipated filing date) and, to the
extent permitted under the provisions of Rule 415 under the Securities Act, include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein within fifteen (15) days after receipt of the Company’s
notice. Such notice shall offer the holders of the Registrable Securities as each such holder may request and shall indicate the intended
method of distribution of such Registrable Securities.
We are required to pay all expenses relating
to any piggyback registration by the holders of Registrable Securities under the applicable Registration Rights Agreement, subject to
certain limitations.
Certificate of Incorporation and Bylaws
Our Certificate of Incorporation and
our Bylaws include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our company,
as well as changes in our Board of Directors or management team, including the following:
Board of Directors Vacancies.
Our Bylaws authorize only our Board of Directors to fill vacant directorships, including newly created seats. In addition, the
number of directors constituting our Board of Directors shall be determined solely in the discretion of the Board of Directors.
These provisions prevent a stockholder from increasing the size of our Board of Directors and then gaining control of our Board
of Directors by filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of
our Board of Directors and will promote continuity of management.
Stockholder Action; Special Meeting
of Stockholders. Our Bylaws provide that special meetings of our stockholders may be called by (i) the Chairman of the Board
or the Chief Executive Officer, President or other executive officer of the Company, (ii) an action of the Board of Directors or
(iii) request in writing of the stockholders of record, and only of record, owning not less than sixty-six and two-thirds percent
(66 2/3%) of the entire capital stock of the Company issued and outstanding and entitled to vote. These provisions might delay
the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital
stock to take any action, including the removal of directors.
Advance Notice Requirements for Stockholder
Proposals and Director Nominations. Our Bylaws provide advance notice procedures for stockholders seeking to bring business
before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders.
Our Bylaws also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions might
preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors
at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions may also discourage
or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or
otherwise attempting to obtain control of our company.
No Cumulative Voting. The Delaware
General Corporation Law, or DGCL, provides that stockholders are not entitled to cumulate votes in the election of directors unless
a corporation’s certificate of incorporation provides otherwise. Our Certificate of Incorporation does not provide for cumulative
voting.
Exclusive Venue. Our Bylaws provides
that, unless we consent in writing to the selection of an alternative forum, a state or federal court located within the State of Delaware
shall be the sole and exclusive forum for: (i) any derivative action or proceeding brought on behalf of us; (ii) any action asserting
a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees or agents to us or our stockholders; (iii)
any action asserting a claim against us arising pursuant to any provision of the DGCL or our Certificate of Incorporation or Bylaws; or
(iv) any action asserting a claim against us governed by the internal affairs doctrine. This exclusive forum provision would not apply
to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act or any other claim for which the federal
courts have exclusive jurisdiction. To the extent that any such claims may be based upon federal law claims, Section 27 of the Exchange
Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the
rules and regulations thereunder. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state
courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
Although our restated certificate contains the choice of forum provision described above, it is possible that a court could rule that
such a provision is inapplicable for a particular claim or action or that such provision is unenforceable. 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 any action, a court could find the choice of forum provisions contained in our Certificate of Incorporation
to be inapplicable or unenforceable in such action.
Each of the foregoing provisions will
make it more difficult for our existing stockholders to replace our Board of Directors as well as for another party to obtain control
of our company by replacing our Board of Directors. Since our Board of Directors has the power to retain and discharge our officers,
these provisions could also make it more difficult for existing stockholders or another party to effect a change in management.
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 the control of our company.
These provisions are intended to enhance
the likelihood of continued stability in the composition of our Board of Directors and its policies and to discourage certain types
of transactions that may involve an actual or threatened acquisition of our company. These provisions are also designed to reduce
our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy rights. However,
these provisions could have the effect of discouraging others from making tender offers for our shares and may have the effect
of deterring hostile takeovers or delaying changes in control of our company or our management. As a consequence, these provisions
also may inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts.
Section 203 of the Delaware General Corporation Law
We are subject to Section 203 of the
DGCL, which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period
of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
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before such date, the Board of Directors of the corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon closing of the transaction that 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 began, excluding for purposes
of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares
owned by (1) persons who are directors and also officers and (2) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or after such date, the business combination is approved by the Board of Directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock that is not owned by the interested stockholder.
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In general, Section 203 defines “business
combination” to include the following:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, lease, exchange, mortgage, transfer, pledge or other disposition of 10% or more of the assets of the corporation
involving the interested stockholder;
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of
the corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class
or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits
by or through the corporation.
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In general, Section 203 defines an “interested
stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or
within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding
voting stock of the corporation.
Limitation of Liability and Indemnification
Our Certificate of Incorporation and
our Bylaws provide that we will indemnify our directors and officers to the fullest extent permitted under Delaware law, which
prohibits our Certificate of Incorporation from limiting the liability of our directors for the following:
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For breach of the director’s duty of loyalty to the Company or our stockholders;
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For acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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Pursuant to Section 174 of the DGCL; or
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For any transaction from which the director derived an improper personal benefit. Our Certificate of Incorporation and
our Bylaws also provide that we shall indemnify our employees and agents to the fullest extent permitted by law.
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Our Certificate of Incorporation also
permits us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his
or her actions in this capacity, regardless of whether we would have the power to indemnify such person against such expense, liability
or loss under the DGCL. We have obtained directors’ and officers’ liability insurance.
We have entered into separate indemnification
agreements with our directors and executive officers, in addition to indemnification provided for in our Certificate of Incorporation
and Bylaws. These agreements, among other things, provide for indemnification of our directors and executive officers for expenses,
judgments, fines and settlement amounts incurred by this person in any action or proceeding arising out of this person’s
services as a director or executive officer or at our request. We believe that these provisions in our Certificate of Incorporation
and Bylaws and indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers.
The above description of the indemnification
provisions of our Certificate of Incorporation and our Bylaws is not complete and is qualified in its entirety by reference to
these documents, each of which is filed as an exhibit to this registration statement to which this prospectus forms a part.
The limitation of liability and indemnification
provisions in our Certificate of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors
for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers,
even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to
the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, we have 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. There is no pending litigation or proceeding naming any
of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation
that may result in claims for indemnification by any director or officer.
Listing
Our common stock is listed on The Nasdaq
Capital Market under the symbol “PLXP.”
Transfer Agent and Registrar
The transfer agent and registrar for
our common stock is VStock Transfer, LLC.
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 any applicable prospectus supplement or free writing
prospectus. The terms of any debt securities offered under any applicable 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 any 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. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed
rate 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 comply with Section 14(e) under
the Exchange Act to the extent applicable, and any other tender offer rules under the Exchange Act, which may then be applicable,
in connection with any obligation we may have to purchase debt securities at the option of the holders thereof. Any such obligation
applicable to a series of debt securities will be described in any applicable prospectus supplement.
Any applicable prospectus supplement
relating to a series of debt securities being offered will contain the following terms, if applicable:
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the title of the series of debt securities and the ranking;
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the aggregate principal amount and any limit on that amount;
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the price at which the debt securities will be issued;
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the date on which the debt securities mature;
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the fixed or variable rate at which the debt securities will bear interest, or the method by which the rate shall be determined;
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the timing, place and manner of making principal, interest and any premium payments on the debt securities, and, if applicable,
where the debt securities may be surrendered for registration of transfer or exchange;
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the date or dates, if any, after which the debt securities may be converted or exchanged into or for our common stock or another
company’s securities or property or cash, and the terms of any such conversion or exchange;
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any redemption or early repayment provisions;
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any sinking fund or similar provisions;
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the authorized denominations;
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any applicable subordination provisions;
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any guarantees of the securities by our subsidiaries or others;
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the currency in which we will pay the principal, interest and any premium payments on the debt securities;
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whether the amount of payments of principal of (and premium, if any) or interest, if any, on the debt securities may be determined
with reference to an index, formula or other method and the manner in which the amounts shall be determined;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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the time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can
select the payment currency;
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the provisions, if any, granting special rights to the holders of debt securities upon certain events;
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any additions to or changes in the events of default or covenants with respect to the debt securities, and any change in the
right of the trustee or the holders, from those described in this prospectus, to declare principal, premium and interest to be
due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of
holders of debt securities issued under the indenture;
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whether and under what circumstances we will pay any additional amounts on the debt securities for any tax, assessment or governmental
charge and, if so, whether we will have the option to redeem the debt securities instead of paying those amounts;
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the form (registered and/or bearer securities), any restrictions applicable to the offer, sale or delivery of bearer securities
and the terms, if any, upon which bearer securities may be exchanged for registered securities and vice versa;
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the date of any bearer securities or any global security, if other than the date of original issuance of the first security
of the series to be issued;
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the person to whom and manner in which any interest shall be payable;
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whether the securities will be issued in whole or in part in the form of one or more global securities;
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the identity of the depositary for global securities;
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whether a temporary security is to be issued with respect to the series and whether any interest payable prior to the issuance
of definitive securities of the series will be credited to the account of the persons entitled thereto;
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the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial
interests in a definitive global security or for individual definitive securities and the terms upon which exchanges may be made;
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the securities exchange(s), if any, on which the securities will be listed;
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whether any underwriter(s) will act as market maker(s) for the securities;
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the form (certificated or book-entry);
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the form and/or terms of certificates, documents or conditions which may be necessary, if any, for the debt securities to be
issuable in final form; and
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additional terms not inconsistent with the provisions of the indenture.
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Conversion or Exchange Rights
We will set forth in any 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
Except as set forth in any applicable
prospectus supplement, the indenture will provide that we shall not consolidate with, or sell, assign, transfer, lease or convey
all or substantially all of our assets to, or merge into, another business entity, unless:
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we are the surviving entity or, in the event that we are not the surviving entity, the entity formed by the transaction (in
a consolidation) or the entity which received the transfer of assets is organized under the laws of any state of the United States
or the District of Columbia and that the entity assumes all of our obligations under the debt securities and the indenture; and
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immediately after giving effect to the transaction, no event of default, as defined in the indenture, shall have occurred and
be continuing.
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Notwithstanding the foregoing, we may
merge with another business entity or acquire by purchase or otherwise all or any part of the property or assets of any other company
in a transaction in which we are the surviving entity.
Events of Default
Unless otherwise specified in any applicable
prospectus supplement, the following are events of default with respect to any series of debt securities issued under the indenture:
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failure to pay principal of any debt security of that series when due and payable at maturity, upon acceleration, redemption
or otherwise;
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failure to pay any interest on any debt security of that series when due, and the default continues for 30 days;
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failure to make sinking fund payments when due;
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failure to comply with any covenant or warranty contained in the indenture, other than covenants or warranties contained in
the indenture solely for the benefit of other series of debt securities, and the default continues for 30 days after notice from
the trustee or the holders of at least 25% in principal amount of the then outstanding debt securities of that series;
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certain events of bankruptcy, insolvency or reorganization; and
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any other event of default provided with respect to that particular series of debt securities.
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If an event of default occurs and continues,
then upon written notice to us, the trustee or the holders of at least 25% in principal amount of the outstanding debt securities
of that series may declare the unpaid principal amount of and any accrued and unpaid interest on, all debt securities of that series
to be due and payable immediately. However, at any time after a declaration of acceleration with respect to debt securities of
any series has been made, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind
and annul the acceleration:
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if all events of default other than the nonpayment of principal of or interest on the debt securities of that series which
have become due solely because of the acceleration have been waived or cured; and
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the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. For information as to waiver
of defaults, see “Modification of Indenture; Waiver” below.
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The indenture will provide that, subject
to the duty of the trustee during an event of default to act with the required standard of care, the trustee will be under no obligation
to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders
shall have offered to the trustee reasonable security or indemnity. Subject to certain provisions, including those requiring security
or indemnification of the trustee, 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.
We will be required to furnish to the
trustee under the indenture annually a statement as to the performance by us of our obligations under that indenture and as to
any default in our performance.
Modification of Indenture; Waiver
Subject to certain exceptions, the terms
of the indenture or the debt securities may be amended or supplemented by us and the trustee with the written consent of the holders
of at least a majority in principal amount of the outstanding debt securities of each series affected by the amendment with each
series voting as a separate class. Without the consent of any holder of the debt securities, we and the trustee may amend the terms
of the indenture or the debt securities to:
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cure any ambiguity, defect or inconsistency;
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provide for the assumption of our obligations to holders of the debt securities by a successor corporation;
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provide for uncertificated debt securities in addition to certificated debt securities;
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make any change that does not adversely affect the rights of any holder of the debt securities in any material respect;
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add to, change or eliminate any other provisions of the indenture in respect of one or more series of debt securities if the
change would not (i) apply to any security of any series created prior to the execution of a supplemental indenture and entitled
to the benefit of the provision, and (ii) modify the rights of the holder of any security or would become effective only when there
is no outstanding security of any series created prior to the execution of the supplemental indenture and entitled to the benefits
of the provisions proposed to be changed;
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establish any additional series of debt securities; or
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comply with any requirement of the SEC in connection with the qualification of the indenture under the Trust Indenture Act.
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However, holders of each series of debt
securities affected by a modification must consent to modifications that:
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reduce the principal amount of the debt securities;
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reduce the rate or change the time for payment of interest;
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change the fixed maturity date;
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change the date on which any debt security may be subject to redemption or repurchase, or reduce the redemption or repurchase
price;
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make any debt security payable in currency other than that stated in the debt security;
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waive any existing default or event of default and the resulting consequences;
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modify the right of any holder to receive payment of principal or interest on any debt security;
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impair the right of any holder to institute suit for the enforcement of any payment due; or
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make any change in the foregoing amendment provisions which require each holder’s consent.
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Any existing default may be waived with
the consent of the holders of at least a majority in principal amount of the then outstanding debt securities of the series affected.
The consent of the holders of debt securities is not necessary to approve the particular form of any proposed amendment to any
indenture. It is sufficient if any consent approves the substance of the proposed amendment.
Covenants
Except as permitted in certain circumstances
as discussed under “Consolidation, Merger or Sale,” the indenture will require us to do or cause to be done all things
necessary to preserve and keep in full force and effect our existence, rights (declaration and statutory) and franchises; provided,
however, that we shall not be required to preserve any right or franchise if we determine that the right or franchise is no longer
desirable in the conduct of our business and that the loss of the right or franchise is not disadvantageous in any material respect
to the holders of the debt securities.
The indenture will require us to pay
or discharge or cause to be paid or discharged, before payment becomes delinquent, all taxes, assessments and governmental charges
levied or imposed upon us, except any tax, assessment, charge or claim the amount or applicability of which is being contested
in good faith.
Reference is made to the indenture and
any applicable prospectus supplement for information with respect to any additional covenants specific to a particular series of
debt securities.
Discharge
Except as otherwise set forth in any
applicable prospectus supplement, we may terminate our obligations under the debt securities of any series, and the corresponding
obligations under the indenture when:
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we have paid or deposited with the trustee funds or United States government obligations in an amount sufficient to pay at
maturity all outstanding debt securities of the series, including interest other than destroyed, lost or stolen debt securities
of the series which have not been replaced or paid;
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all outstanding debt securities of the series have been delivered (other than destroyed, lost or stolen debt securities of
the series which have not been replaced or paid) to the trustee for cancellation;
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all outstanding debt securities of any series have become due and payable; or
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we have paid all other sums payable under the indenture.
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In addition, we will have the option
to terminate substantially all our obligations under the debt securities of any series and the corresponding obligations under
the indenture, and we may exercise that option if:
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we have paid or deposited with the trustee, in trust an amount of cash or United States government obligations sufficient to
pay all outstanding principal of and interest on the then outstanding debt securities of the series at maturity or upon their redemption,
as the case may be;
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the deposit will not result in a breach of, or constitute a default under, the indenture;
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no default or event of default shall have occurred and continue on the date of deposit and no event of default as a result
of a bankruptcy or event which with the giving of notice or the lapse of time would become a bankruptcy event of default shall
have occurred and be continuing on the 91st day after that date;
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we deliver to the trustee a legal opinion that we have received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that the holders of the debt securities
of the series will not recognize income, gain or loss for Federal income tax purposes as a result of our exercise of our option
and shall be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been
the case if we did not exercise our option; or
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certain other conditions are met.
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We will have the option to be released
from our obligations with respect to the covenants to deliver reports required to be filed with the SEC and an annual compliance
certificate, and to make timely payments of taxes (including covenants described in an applicable prospectus supplement), and any
event of default occurring because of a default with respect to the covenants as they related to any series of debt securities,
and we may exercise that option if:
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we deposit or cause to be deposited with the trustee in trust an amount of cash or United States government obligations sufficient
to pay and discharge when due the entire unpaid principal of and interest on all outstanding debt securities of any series;
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the deposit will not result in a breach of, or constitute a default under, the indenture;
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no default or event of default shall have occurred and be continuing on the date of deposit and no event of default as a result
of a bankruptcy or event which with the giving of notice or the lapse of time would become a bankruptcy event of default shall
have occurred and be continuing on the 91st day after that date;
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we deliver to the trustee a legal opinion that the holders of the debt securities of the series will not recognize income,
gain or loss for Federal income tax purposes as a result of our exercise of our option and shall be subject to Federal income tax
on the same amounts and in the same manner and at the same times as would have been the case if we did not exercise our option;
and
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certain other conditions are met.
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Upon satisfaction of the applicable conditions,
our obligations under the indenture with respect to the debt securities of the series, other than with respect to the covenants
and events of default referred to above, shall remain in full force and effect.
Notwithstanding the foregoing, no discharge
or defeasance described above shall affect the following obligations to or rights of the holders of any series of debt securities:
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rights of registration of transfer and exchange of debt securities of the series;
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rights of substitution of mutilated, defaced, destroyed, lost or stolen debt securities of the series;
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rights of holders of debt securities of the series to receive payments of principal thereof and premium, if any, and interest
thereon when due;
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rights, obligations, duties and immunities of the trustee;
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rights of holders of debt securities of the series as beneficiaries with respect to property deposited with the trustee and
payable to all or any of them; and
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our obligations to maintain an office or agency in respect of the debt securities of the series.
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Form, Exchange and Transfer
We expect payment of principal, premium,
if any, and any interest on the debt securities to be payable, and the exchange and the transfer of debt securities will be registrable,
at the office of the trustee or at any other office or agency we maintain for that purpose. We expect to issue debt securities
in denominations of U.S. $1,000 or integral multiples of $1,000. No service charge will be made for any registration of transfer
or exchange of the debt securities, but we may require a payment to cover any tax or other governmental charges payable in connection
with an exchange or transfer.
A holder of debt securities may transfer
or exchange those debt securities in accordance with the indenture. The registrar for the debt securities may require a holder,
among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or
permitted by the indenture. The registrar is not required to transfer or exchange any debt security selected for redemption or
any debt security for a period of 15 days before a selection of debt security to be redeemed. The registered holder of a debt security
may be treated as the owner of the security for all purposes.
We will name in any 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.
Replacement Securities
Any mutilated certificate representing
a debt security or a certificate representing a debt security with a mutilated coupon will be replaced by us at the expense of
the holder upon surrender of the certificate to the trustee. Certificates representing debt securities or coupons that become destroyed,
stolen or lost will be replaced by us at the expense of the holder upon delivery to us and the trustee of evidence of any destruction,
loss or theft satisfactory to us and the trustee, provided that neither we nor the trustee has been notified that the certificate
or coupon has been acquired by a bona fide purchaser. In the case of any coupon which becomes destroyed, stolen or lost, the coupon
will be replaced by issuance of a new certificate representing the debt security in exchange for the certificate representing the
debt security to which the coupon appertains. In the case of a destroyed, lost or stolen certificate representing the debt security
or coupon, an indemnity bond satisfactory to the trustee and us may be required at the expense of the holder of the debt security
before a replacement certificate will be issued.
Information Concerning the Trustee
We will identify in any applicable prospectus
supplement relating to any series of debt securities the trustee with respect to the series. The indenture and the Trust Indenture
Act contain certain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any the claim, as security or otherwise. The trustee and its affiliates
may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates, but if the trustee
acquires any conflicting interest, as defined in the Trust Indenture Act, it must eliminate the conflict or resign.
The holders of a majority in principal
amount of the then outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the trustee. The Trust Indenture Act and the indenture provide that in case
an event of default occurs is continuing, the trustee will be required, in the exercise of its rights and powers, to use the degree
of care and skill of a prudent man in the conduct of his own affairs. Subject to those provisions, the trustee will be under no
obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities,
unless they have offered to the trustee indemnity satisfactory to it.
Global Debt Securities
Unless we indicate otherwise in any applicable
prospectus supplement, the following provisions will apply to all debt securities.
The debt securities of a series may be
issued in whole or in part in the form of one or more global securities that will be deposited with a depositary that we will identify
in any applicable prospectus supplement. Each global security will be deposited with the depositary and will bear a legend regarding
any related restrictions or other matters as may be provided for pursuant to the applicable indenture.
Unless any applicable prospectus supplement
states otherwise, no global security may be transferred to, or registered or exchanged for, debt securities registered in the name
of, any person or entity other than the depositary, unless:
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the depositary has notified us that it is unwilling or unable or is no longer qualified to continue as depositary;
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we order the trustee that the global security shall be so transferable, registrable and exchangeable, and the transfers shall
be registrable; or
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other circumstances, if any, as may be described in any applicable prospectus supplement.
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All debt securities issued in exchange
for a global security or any portion of a global security will be registered in those names as the depositary may direct. The specific
terms of the depositary arrangement with respect to any portion of a series of debt securities to be represented by a global security
will be described in any applicable prospectus supplement.
Debt securities which are to be represented
by a global security to be deposited with or on behalf of a depositary will be represented by a global security registered in the
name of the depositary or its nominee. Upon the issuance of the global security, and the deposit of the global security with the
depositary, the depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of
the debt securities represented by the global security to the accounts of institutions that have accounts with the depositary or
its nominee, or the Participants. The accounts to be credited will be designated by the underwriters or agents of the debt securities
or by us, if the debt securities are offered and sold directly by us.
Ownership of beneficial interests in
a global security will be limited to Participants or persons that may hold interests through Participants. Ownership of beneficial
interests in a global security will be shown on, and the transfer of that ownership interest will be effected only through, records
maintained by the depositary or its nominee for the global security or by Participants or persons that hold through Participants.
The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of the securities in certificated form. Those laws may impair the
ability to transfer beneficial interests in global securities.
So long as the depositary, or its nominee,
is the registered owner of a global security, the depositary or the nominee, as the case may be, will be considered the sole owner
or holder of the debt securities represented by the global security for all purposes under the indenture. Payment of principal
of, and premium and interest, if any, on debt securities will be made to the depositary or its nominee as the registered owner
or bearer as the case may be of the global security representing the debt securities. Each person owning a beneficial interest
in a global security must rely on the procedures of the depositary and, if the person is not a Participant, on the procedures of
the Participant through which the person owns its interest, to exercise any rights of a holder under the indenture. If we request
any action of holders or if an owner of a beneficial interest in a global security desires to give any notice or take any action
a holder is entitled to give or take under the indenture, the depositary will authorize the Participants to give the notice or
take the action, and Participants would authorize beneficial owners owning through the Participants to give the notice or take
the action or would otherwise act upon the instructions of beneficial owners owning through them.
The rights of any holder of a debt security
to receive payment of principal and premium of, if any, and interest, on or after the respective due dates expressed or provided
for in the debt security, or to institute suit for the enforcement of any payment on or after the applicable date, shall not be
impaired or affected without the consent of the holders.
Neither we, the trustee, any paying agent
nor the security registrar for a debt security will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the global security for the debt security or for maintaining,
supervising or receiving any records relating to the beneficial ownership interests.
We expect that the depositary or its
nominee, upon receipt of any payment of principal, premium or interest, will credit immediately Participants’ accounts with
payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown
on the records of the depositary or its nominee. We also expect that payments by Participants to owners of beneficial interests
in a global security held through the Participants will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will
be the responsibility of the Participants.
If the depositary for a global security
representing debt securities of a particular series is at any time unwilling or unable to continue as depositary and we do not
appoint a successor depositary within 90 days, we will issue debt securities of the series in definitive form in exchange for the
global security. In addition, we may at any time and in our sole discretion determine not to have the debt securities of a particular
series represented by one or more global securities and, in that event, will issue debt securities of the series in definitive
form in exchange for all of the global securities representing debt securities of the series.
Payment and Paying Agents
Unless we otherwise indicate in any 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 any 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 any 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
We anticipate 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
We may issue warrants for the purchase
of shares of our common stock or preferred stock or of debt securities in one or more series. We may issue warrants independently
or together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of
warrants will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent.
The following summary of material provisions of the warrants and warrant agreements is subject to, and qualified in its entirety
by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants.
The terms of any warrants offered under a prospectus supplement may differ from the terms described below. We urge you to read
the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant agreements and warrant
certificates that contain the terms of the warrants.
General
Any applicable prospectus supplement
will describe the specific terms of any warrants that we issue or offer, including:
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the title of the warrants;
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the aggregate number of warrants;
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the price or prices at which the warrants will be issued;
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the currencies in which the price or prices of the warrants may be payable;
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the designation, amount and terms of our capital stock or debt securities purchasable upon exercise of the warrants;
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the designation and terms of our other securities, if any, that may be issued in connection with the warrants, and the number
of warrants issued with each corresponding security;
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if applicable, the date that the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
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the prices and currencies for which the securities purchasable upon exercise of the warrants may be purchased;
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the date that the warrants may first be exercised;
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the date that the warrants expire;
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the minimum or maximum amount of warrants that may be exercised at any one time;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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information with respect to book-entry procedures, if any;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of certain federal income tax considerations; and
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any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise
of the warrants.
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Exercise of Warrants
Each warrant will entitle the holder
to purchase for cash the principal amount of common stock, preferred stock or debt securities at the applicable exercise price
set forth in, or determined as described in, any applicable prospectus supplement. Warrants may be exercised at any time up to
the close of business on the expiration date set forth in any applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become void.
Warrants may be exercised by delivering
to the corporation trust office of the warrant agent or any other officer indicated in the applicable prospectus supplement (a)
the warrant certificate properly completed and duly executed and (b) payment of the amount due upon exercise. As soon as practicable
following exercise, we will forward the common stock, preferred stock or debt securities purchasable upon exercise. If less than
all of the warrants represented by a warrant certificate are exercised, a new warrant certificate will be issued for the remaining
warrants if the expiration date of the warrants has not occurred. If we so indicate in any applicable prospectus supplement, holders
of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in any applicable
prospectus supplement, we anticipate 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.
Description of Outstanding Warrants
As of August 3, 2021, we had outstanding warrants
to purchase an aggregate of 6,804,314 shares of common stock, which includes (i) 2,457,501 warrants to purchase shares of common stock,
with an exercise price of $7.50 per share, (ii) 58,502 warrants to purchase shares of our common stock with an exercise price of $6.41
per share and (iii) 4,288,311 warrants to purchase shares of our common stock with an exercise price of $4.31 per share.
DESCRIPTION OF
UNITS
The following description, together with
the additional information we may include in any applicable prospectus supplement, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in any applicable
prospectus supplement and any related free writing prospectus. The terms of any units offered under an applicable 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 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 unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the
issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to,
and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable
to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of
units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the
terms of the units.
General
We may issue units comprised of one or
more debt securities, common stock, preferred stock, warrants and/or rights in any combination. Each unit will be issued so that
the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in any applicable prospectus
supplement the terms of the series of units, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units.
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The provisions described in this section,
as well as those described under “Description of Capital Stock,” “Description of Debt Securities,” “Description
of Warrants,” and “Description of Rights” will apply to each unit and to any common stock, preferred stock, debt
security, warrant or right included in each unit, respectively.
Issuance in Series
We may issue units in the amounts and
in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our
agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder
of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
Title
We, the unit agent and any of their agents
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purposes and as the person entitled to exercise the rights attaching to the units, despite any notice to the contrary.
DESCRIPTION OF
RIGHTS
We may issue rights to purchase shares
of our common stock, preferred stock, or warrants in one or more series. Rights may be issued independently or together with any
other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection
with any rights offering to our stockholders, we may enter into a standby underwriting arrangement with one or more underwriters
pursuant to which the underwriters will purchase any of the offered securities remaining unsubscribed after the expiration of the
rights offering. In connection with a rights offering to our stockholders, we will distribute certificates evidencing the rights
and an applicable prospectus supplement to our stockholders on the record date that we set for receiving rights in the rights offering.
An applicable prospectus supplement will
describe the following terms of rights in respect of which this prospectus is being delivered:
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the title of the rights;
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the securities for which the rights are exercisable;
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the exercise price for the rights;
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the currencies in which the price or prices of the rights may be payable;
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the date of determining the security holders entitled to the rights distribution;
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the number of the rights issued to each security holder;
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the extent to which the rights are transferable;
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if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the rights;
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the date on which the right to exercise the rights shall commence, and the date on which the rights shall expire (subject to
any extension);
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the conditions to completion of the rights offering;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the rights;
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the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection
with the rights offering; and
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights.
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Each right will entitle the holder to
purchase for cash the amount of securities, at the exercise price. Rights may be exercised at any time up to the close of business
on the expiration date of the rights. After the close of business on the expiration date, all unexercised rights will become void.
The manner in which rights may be exercised will be described in any applicable prospectus supplement. Upon receipt of payment
and the proper completion and due execution of the rights certificate at the designated office of the rights agent or any other
office indicated in any applicable prospectus supplement, we or the transfer agent will forward, as soon as practicable, the securities
purchased through upon the exercise of the rights. We may determine to offer any unsubscribed offered securities directly to persons
other than stockholders, to or through agents, underwriters or dealers or through a combination of the methods, including pursuant
to standby underwriting arrangements, as set forth in any applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities covered by
this prospectus 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 the securities from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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We may issue securities to other companies
or their security holders to acquire those companies or equity interests in those companies, or to acquire assets of those companies,
through mergers or consolidations with us or any of our subsidiaries, or through the exchange of our securities for securities
of the other companies, or through the exchange of assets of other companies for our securities, or through similar transactions.
We may also issue our securities to one
or more of our subsidiaries, including subsidiaries that we presently control and subsidiaries that we may organize or acquire
in the future, and those subsidiaries may resell our securities to raise capital or to acquire other companies or equity interests
in other companies, or to acquire assets of other companies.
Our officers and directors, members of
their immediate families, and their respective affiliates may purchase securities that we offer, subject to compliance with our
related person transaction policy, including approval of our Audit Committee, in the case of any transaction in excess of $120,000
in any fiscal year, policies established by our Board of Directors with regard to trading in our securities by officers and directors,
and applicable rules of Nasdaq.
In addition, we may issue the securities
being offered by this prospectus as a dividend or distribution.
Any applicable prospectus supplement
(and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of
the securities, including, to the extent applicable:
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the name or names of the underwriters, if any;
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the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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Sales Through Underwriters or Dealers
If we use an underwriter or underwriters
in the sale of securities offered by this prospectus, the underwriters will acquire the securities for their own account, including
through underwriting, purchase, security lending or repurchase agreements with us, unless the underwriters are acting only as our
agents for the purpose of selling our securities as described below under “Sales Through Agents.” The underwriters
may resell the securities from time to time in one or more transactions, including negotiated transactions. Underwriters may sell
the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise),
including other public or private transactions and short sales made by the underwriters in connection with the distribution of
our securities by the underwriters. Underwriters may offer securities to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in any
applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may
change from time to time any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers.
If we use an underwriter or underwriters
in the sale of securities, we will execute an underwriting agreement with the underwriter or underwriters at the time we reach
an agreement for sale. We will set forth in any applicable prospectus supplement the names of the specific managing underwriter
or underwriters, as well as any other underwriters, and the terms of the transactions, including compensation of the underwriters
and dealers. This compensation may be in the form of discounts, concessions or commissions. Only underwriters named in an applicable
prospectus supplement will be underwriters of the securities offered by such prospectus supplement.
We may grant to the underwriters options
to purchase additional securities to cover over-allotments, if any, at the public offering price with additional underwriting discounts
or commissions. If we grant any over-allotment option, the terms of any over-allotment option will be set forth in any applicable
prospectus supplement relating to those securities.
Sales Through Dealers
If we use dealers in the sale of the
securities offered by this prospectus, we or an underwriter will sell the securities to them as principals. The dealers may then
resell those securities to the public at varying prices to be determined by the dealers at the time of resale. An applicable prospectus
supplement will set forth the names of the dealers and the terms of the transactions.
Direct Sales
We may directly solicit offers to purchase
the securities offered by this prospectus. In this case, no underwriters or agents would be involved. We may sell the securities
directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with
respect to any sale of those securities. The terms of the sales will be described in any applicable prospectus supplement.
Sales Through Agents
Securities also may be offered and sold
through agents designated from time to time. An applicable prospectus supplement will name any agent involved in the offer or sale
of the securities and will describe any commissions payable to the agent. Unless otherwise indicated in an applicable prospectus
supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment. Any
agent may be deemed to be an underwriter within the meaning of the Securities Act with respect to any sale of those securities.
Delayed Delivery Contracts
If any applicable prospectus supplement
indicates, we may authorize agents, underwriters or dealers to solicit offers from institutions to purchase securities at the public
offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in
the future. Institutions with which contracts of this type may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions, but in all cases those institutions must be approved
by us. The obligations of any purchaser under any contract of this type will be subject to the condition that the purchase of the
securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the purchaser is subject.
Any applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
Market Making, Stabilization and Other Transactions
Our common stock is listed on Nasdaq.
Any shares of common stock sold pursuant to an applicable prospectus supplement will be eligible for listing and trading on Nasdaq,
subject to official notice of issuance. Unless any applicable prospectus supplement states otherwise, each other class or series
of securities issued will be a new issue and will have no established trading market. We may elect to list any other class or series
of securities on an exchange, but we are not currently obligated to do so. Any underwriters that we use in the sale of offered
securities may make a market in the securities, but may discontinue market making at any time without notice. Therefore, we cannot
assure you that the securities will have a liquid trading market.
Any underwriter may also engage in stabilizing
transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Stabilizing
transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution
has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters
to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions
and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters
may, if they commence these transactions, discontinue them at any time.
The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open
market. Any such transactions, if commenced, may be discontinued at any time. We make no representation or prediction as to the
direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
Derivative Transactions and Hedging
We, the underwriters or other agents
may engage in derivative transactions involving the securities. These derivatives may consist of short sales for hedging purposes
and any other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell
securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or
related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions
through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short
sale transactions by others.
The underwriters or agents may also use
the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from us in settlement
of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings of the
securities arising from the distribution of our securities by the underwriters.
Electronic Auctions
We also may make sales through the Internet
or through other electronic means. Since we may from time to time elect to offer securities directly to the public, with or without
the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of electronic bidding or ordering systems
for the pricing and allocation of the securities, you will want to pay particular attention to the description of that system we
will provide in an applicable prospectus supplement.
The electronic system may allow bidders
to directly participate, through electronic access to an auction site, by submitting conditional offers to buy that are subject
to acceptance by us, and which may directly affect the price or other terms and conditions at which the securities are sold. These
bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant information to assist
in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted, and whether a bidder’s
individual bids would be accepted, prorated or rejected. Of course, many pricing methods can and may also be used.
Upon completion of the electronic auction
process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering price at which securities
would be sold and the allocation of securities among bidders would be based in whole or in part on the results of the Internet
or other electronic bidding process or auction.
General Information
Agents, underwriters, and dealers may
be entitled, under agreements entered into with us, to indemnification by us against specified liabilities, including liabilities
under the Securities Act, or to contribution by us to payments they may be required to make in respect to those liabilities. Any
applicable prospectus supplement will describe the terms and conditions of indemnification or contribution. Some of our agents,
underwriters, and dealers, or their affiliates, may be customers of, engage in transactions with or perform services for us, in
the ordinary course of business. We will describe in any applicable prospectus supplement the nature of any such relationship and
the name of the parties involved. Any lockup arrangements will be set forth in any applicable prospectus supplement.
LEGAL MATTERS
The validity of the securities offered
by this prospectus and any applicable prospectus supplement thereto will be passed upon for us by Olshan Frome Wolosky LLP, 1325
Avenue of the Americas, New York, New York 10019. Additional legal matters may be passed upon for us or any underwriters, dealers
or agents, by counsel that we name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of PLx Pharma Inc. and Subsidiaries as of December 31, 2020 and 2019 and for each of the two years in
the period ended December 31, 2020, have been audited by Marcum LLP, independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference. Such consolidated financial statements of PLx Pharma Inc. and Subsidiaries are incorporated
in this prospectus by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN
FIND MORE INFORMATION
This prospectus and any accompanying
prospectus supplement do not contain all of the information set forth in the registration statement and its exhibits and schedules
in accordance with SEC rules and regulations. For further information with respect to us and the securities being offered hereby,
you should read the registration statement, including its exhibits and schedules. Statements contained in this prospectus and any
accompanying prospectus supplement, including documents that we have incorporated by reference, as to the contents of any contract
or other document referred to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit
to the registration statement or any other such document, each such statement is qualified in all respects by reference to the
corresponding exhibit. You should review the complete document to evaluate these statements. You may obtain copies of the registration
statement and its exhibits via the SEC’s EDGAR database or our website.
We file annual, quarterly and current
reports, proxy statements and other documents with the SEC under the Exchange Act. The SEC maintains a website that contains reports,
proxy and information statements and other information regarding issuers, including our company, that file electronically with
the SEC. You may obtain documents that we file with the SEC at http://www.sec.gov.
We also make these documents available
on our website at https://plxpharma.com. Our website and the information contained or connected to our website is not incorporated
by reference in this prospectus or any accompanying prospectus supplement, and you should not consider it part of this prospectus
or any accompanying prospectus supplement.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate
by reference” in this prospectus certain of the information we file with the SEC. This means we can disclose important information
to you by referring you to another document that has been filed separately with the SEC. The information incorporated by reference
is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede
information contained in this prospectus and any accompanying prospectus supplement. We incorporate by reference the documents
listed below that we have previously filed with the SEC:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020,
filed with the SEC on March 12, 2021, as amended on Form 10-K/A on April 30, 2021;
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Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on September 25, 2020;
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Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, filed with the SEC on May
14, 2021;
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Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2021, filed with the SEC on August
6, 2021;
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Our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC
on January 11, 2021, March 1, 2021, March 2, 2021, March 3, 2021, March 12, 2021, March 17, 2021 and May 14, 2021 (with respect to the
filed portions contained therein); and
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The description of our common stock contained in our registration statement on Form 8-A filed with the
SEC on March 12, 2014, including any amendments or reports filed for the purpose of updating that description.
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We also incorporate by reference into this
prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
completion or termination of the offering of the securities described in this prospectus, including all such documents we may file with
the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding
any information deemed furnished and not filed with the SEC. Any statements contained in a previously filed document incorporated by
reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that
statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, on written or oral request, a copy of any or all of the documents incorporated
by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents to PLx Pharma Inc.,
9 Fishers Lane, Suite E, Sparta, NJ 07871; telephone number: (973) 409-6541. You may also access the documents incorporated by reference
in this prospectus through our website at https://plxpharma.com/. Except for the specific incorporated documents listed above, no information
available on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms
a part.
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Rights
PROSPECTUS
, 2021
The information in this prospectus is not
complete and may be changed. We may not sell 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 an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
AUGUST 6, 2021
PROSPECTUS
Up to $75,000,000
Common Stock
We have entered into an Equity Distribution
Agreement, or Distribution Agreement, with JMP Securities LLC, or JMP Securities, relating to shares of our common stock offered by this
prospectus. In accordance with the terms of the Distribution Agreement, we may offer and sell shares of our common stock having an aggregate
offering price of up to $75,000,000 from time to time through JMP Securities, acting as sales agent.
Our common stock is listed on The Nasdaq Capital
Market, or Nasdaq, under the symbol “PLXP.” On August 3, 2021, the last reported sale price of our common stock on Nasdaq
was $18.41 per share.
Investing in our common stock involves a
high degree of risk. See “Risk Factors” beginning on page 6 of this prospectus and under similar headings in the other
documents that are filed after the date hereof and incorporated by reference into this prospectus.
Sales of our common stock, if any, under
this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated
under the Securities Act of 1933, as amended, or the Securities Act. JMP Securities will act as sales agent and use commercially
reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal
trading and sales practices, on mutually agreed terms between JMP Securities and us. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
JMP Securities will be entitled to compensation
at a commission rate of 3.0% of the gross proceeds of any shares of common stock sold under the Distribution Agreement. In connection
with the sale of our common stock on our behalf, JMP Securities will be deemed to be an “underwriter” within the meaning
of the Securities Act and the compensation of JMP Securities will be deemed to be underwriting commissions or discounts. We have
also agreed to provide indemnification and contribution to JMP Securities with respect to certain liabilities, including liabilities
under the Securities Act.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
JMP Securities
The date of this prospectus is
, 2021.
TABLE OF CONTENTS
You should rely only on the information
contained or incorporated by reference in this prospectus and any free writing prospectuses we may provide to you in connection
with this offering. We have not, and JMP Securities has not, authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and JMP Securities is
not, making an offer to sell or seeking an offer to buy our common stock under this prospectus in any jurisdiction where the offer
or sale is not permitted. Persons outside the United States who come into possession of this prospectus must inform themselves
about, and observe any restrictions relating to, the offering of the securities and the distribution of this prospectus outside
the United States. Furthermore, you should not consider this prospectus to be an offer or solicitation relating to the securities
if the person making the offer or solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer
or solicitation. You should not assume that the information contained in this prospectus or free writing prospectus is accurate
as of any date other than the date on the front cover of those documents, or that the information contained in any document incorporated
by reference is accurate as of any date other than the date of the document incorporated by reference, regardless of the time of
delivery of this prospectus or any sale of a security. Our business, financial condition, results of operations and prospects may
have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus relates to the offering
of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus,
together with the information incorporated by reference as described under the headings “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference” in this prospectus. These documents contain important information
that you should consider when making your investment decision.
This prospectus describes the specific
terms of the common stock we are offering and also adds to, and updates information contained in the documents incorporated by
reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the
one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the
Securities and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information
in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later
date—for example, a document incorporated by reference into this prospectus—the statement in the document having the
later date modifies or supersedes the earlier statement.
This prospectus includes and incorporates
by reference, references to our trademarks, trade names and service marks, such as PLX®, PLXPHARMA®, PLXGUARD™, VAZALORE™
and First Liquid-Filled Aspirin capsules™, which are protected under applicable intellectual property laws and are our property.
This prospectus also contains and incorporates by reference, references to trademarks, trade names and service marks of other companies,
which are the property of their respective owners. Solely for convenience, trademarks and trade names referred to in this prospectus
or any document incorporated by reference, may appear without the ®, TM or SM symbols, but such references are not intended
to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable
licensor to these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks,
trade names or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement
or sponsorship of us by, these other parties.
PROSPECTUS SUMMARY
This summary highlights certain information
about this offering and selected information contained elsewhere in or incorporated by reference into this prospectus. This summary
is not complete and does not contain all of the information that you should consider before deciding whether to invest in our shares
of common stock. You should read this entire prospectus carefully, including the “Risk Factors” section contained in
this prospectus and the other documents incorporated by reference into this prospectus. References to the “Company,”
“we,” “us,” and “our” mean PLx Pharma, Inc. and its consolidated subsidiary unless the context
otherwise indicates.
Overview
We are a specialty pharmaceutical company focused on
our clinically-validated and patent-protected PLxGuardTM drug delivery platform designed to provide more effective and
safer products. The PLxGuard drug delivery platform works by targeting the release of active pharmaceutical ingredients to various portions
of the gastrointestinal tract. We believe this platform has the potential to improve the absorption of many drugs currently on the market
or in development, and to reduce the risk of stomach erosions and ulcers associated with certain drugs.
VAZALORE, available in
two doses 325 mg and 81 mg, is approved by the U.S. Food and Drug Administration (“FDA”). VAZALORE is a novel formulation
of aspirin clinically shown to provide fast, reliable and predictable platelet inhibition for patients with vascular disease and diabetic
patients who may be candidates for aspirin therapy as compared to the current standard of care, enteric-coated aspirin. It is also clinically
shown to reduce the risk of stomach erosions and ulcers as compared with immediate-release aspirin, after seven days of treatment.
Our commercialization strategy will target the over-the-counter
market, taking advantage of the existing distribution channels for aspirin. We intend to market VAZALORE to the healthcare professional
and the consumer through several sales and marketing channels. Our product pipeline also includes other oral NSAIDs using the PLxGuard
drug delivery platform that may be developed, including PL1200 Ibuprofen 200 mg and PL1200 Ibuprofen 400 mg, for pain and inflammation
in Phase I clinical stage.
For
additional information about our company, please refer to other documents we have filed with the SEC and that are incorporated
by reference into this prospectus, as listed under the heading “Incorporation of Certain Information by Reference.”
Company Information
We were originally incorporated
in Texas in 2002 and re-incorporated in Delaware in 2015. Our principal executive offices are located at 9 Fishers Lane, Suite E, Sparta,
NJ 07871, and our telephone number is (973) 409-6541. Our website address is www.plxpharma.com. We have not incorporated by reference
into this Registration Statement the information in, or that can be accessed through, our website and you should not consider it to be
a part of this Registration Statement.
On April 19, 2017, Dipexium Acquisition Corp., a Delaware corporation (“Merger Sub”)
and a wholly-owned subsidiary of Dipexium Pharmaceuticals, Inc., a Delaware corporation (“Dipexium”), merged with and into
PLx Pharma Inc., a privately-held Delaware corporation (“Old
PLx”), pursuant to the terms of that certain Agreement and Plan of Merger and Reorganization dated as of December 22, 2016 by and
among Dipexium, Merger Sub and Old PLx (the “Merger”). As part of the Merger, Dipexium was re-named PLx Pharma Inc. and Old
PLx was re-named PLx Opco Inc. Following completion of the Merger, Old PLx became a wholly-owned subsidiary of the Company. Since the
completion of the Merger, the business we have conducted has been primarily the business of Old PLx.
THE OFFERING
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Common stock offered by us
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Shares of our common stock having an aggregate offering price of up to $75,000,000.
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Common stock to be outstanding after this offering
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30,218,881 shares (as more fully described in the notes following this table), assuming sales of 4,073,873 shares of our common stock in this offering at an offering price of $18.41 per share, which was the last reported sale price of our common stock on Nasdaq on August 3, 2021. The actual number of shares issued will vary depending on the sales price under this offering.
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Plan of Distribution
|
“At the market offering” that may be made from time to time through our sales agent, JMP Securities. See “Plan of Distribution” on page 11 of this prospectus.
|
|
Use of Proceeds
|
We intend to use the net proceeds from this offering for working capital and general corporate purposes, including research and development expenses, sales and marketing expenses, general and administrative expenses and capital expenditures. See “Use of Proceeds” on page 8 of this prospectus.
|
|
Risk Factors
|
See “Risk Factors” beginning on page 6 of this prospectus and in the documents incorporated by reference herein for a discussion of factors you should consider carefully before investing in our common stock.
|
|
Nasdaq symbol
|
“PLXP”
|
Unless we indicate otherwise, all information
in this prospectus is based on 26,890,254 shares of common stock outstanding as of August 3, 2021, and excludes as of that date:
|
|
·
|
3,111,297 shares of our common stock issuable upon exercise of incentive and nonqualified stock options, restricted stock units, stock
appreciation rights and other forms of stock-based awards, with a weighted average strike price of $9.21 per share, from the Company’s
2018 Incentive Plan, as amended, and from two former plans – the Old PLx Omnibus Stock Option Plan and the Dipexium 2013 Equity
Incentive Plan;
|
|
|
·
|
5,705,935 shares of our common stock issuable upon the conversion of our Series A Preferred Stock at a conversion price of $2.22,
reflecting certain adjustments made upon conversion, subject to certain further adjustments;
|
|
|
·
|
124,571 shares of our common stock issuable upon the conversion of our Series B Preferred Stock at a conversion price of $2.91, reflecting
certain adjustments made upon conversion, subject to certain further adjustments;
|
|
|
·
|
686,685 shares of our common stock issuable upon the conversion of our Series B Preferred Stock at a conversion price of $3.10, subject
to certain adjustments;
|
|
|
·
|
2,457,501 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $7.50 per share;
|
|
|
·
|
58,502 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $6.41 per share; and
|
|
|
·
|
4,288,311 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $4.31 per share.
|
RISK FACTORS
An investment in our common stock
involves a high degree of risk. Prior to making a decision about investing in our common stock, you should carefully consider the
risk factors described below and the risk factors discussed in the sections entitled “Risk Factors” contained in our
most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and our other filings with the SEC and incorporated
by reference in this prospectus, together with all of the other information contained in this prospectus. Additional risks and
uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of these
risks actually occur, our business, financial condition and results of operations could be materially and adversely affected. This
could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment.
Risks Related to this Offering
We will have broad discretion in the use of the
net proceeds from this offering and, despite our efforts, we may use the net proceeds in a manner that does not increase the value
of your investment.
We currently intend to use the net proceeds
from this offering for working capital and general corporate purposes, including research and development expenses, sales and marketing
expenses, general and administrative expenses and capital expenditures. We may also use a portion of the net proceeds to acquire
or invest in businesses, products and technologies that are complementary to our own, although we have no current commitments or
agreements with respect to any acquisitions as of the date of this prospectus. However, we have not determined the specific allocation
of the net proceeds among these potential uses. Our management will have broad discretion over the use and investment of the net
proceeds from this offering, and, accordingly, investors in this offering will need to rely upon the judgment of our management
with respect to the use of proceeds, with only limited information concerning our specific intentions. These proceeds could be
applied in ways that do not improve our operating results or increase the value of your investment.
You may experience immediate and substantial
dilution in the net tangible book value per share of the common stock you purchase in the offering.
The offering price per share in this offering
may exceed the pro forma net tangible book value per share of our common stock outstanding as of June 30, 2021. Assuming that an aggregate
of 4,073,873 shares of our common stock are sold at a price of $18.41 per share, the last reported sale price of our common stock on Nasdaq
on August 3, 2021, for aggregate gross proceeds of approximately $75,000,000, and after deducting commissions and estimated aggregate
offering expenses payable by us, you will experience immediate dilution of $14.22 per share, representing the difference between our pro
forma as adjusted net tangible book value per share as of June 30, 2021 after giving effect to this offering and the assumed offering
price. The exercise of outstanding stock options or warrants and the vesting and settlement of outstanding restricted stock units could
result in further dilution of your investment.
Our common stock may become the
target of a “short squeeze.”
In 2021, the securities
of several companies have increasingly experienced significant and extreme volatility in stock price due to short sellers of common stock
and buy-and-hold decisions of longer investors, resulting in what is sometimes described as a “short squeeze.” Short
squeezes have caused extreme volatility in those companies and in the market and have led to the price per share of those companies to
trade at a significantly inflated rate that is disconnected from the underlying value of the company. Sharp rises in a company’s
stock price may force traders in a short position to buy the shares to avoid even greater losses. Many investors who have purchased shares
in those companies at an inflated rate face the risk of losing a significant portion of their original investment as the price per share
has declined steadily as interest in those shares have abated. We may be a target of a short squeeze, and investors may lose a significant
portion or all of their investment if they purchase our shares at a rate that is significantly disconnected from our underlying value.
The actual number of shares we
will issue under the Distribution Agreement, at any one time or in total, is uncertain.
Subject to certain
limitations in the Distribution Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to
JMP Securities at any time throughout the term of the Distribution Agreement. The number of shares that are sold by JMP Securities, if
any, after delivering a placement notice will fluctuate based on the market price of our common stock during the sales period and limits
we set with JMP Securities. Because the price per share of each share sold will fluctuate based on the market price of our common stock
during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
The common stock offered hereby
will be sold in “at-the-market offerings,” and investors who buy shares at different times will likely pay different
prices.
Investors who purchase
shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment
results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum
or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower
than the prices they paid.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus contains or incorporates
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act,
and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These forward-looking statements reflect
management’s beliefs and assumptions. In addition, these forward-looking statements reflect management’s current views
with respect to future events or our financial performance, and involve certain known and unknown risks, uncertainties and other
factors, including those identified below, which may cause our or our industry’s actual or future results, levels of activity,
performance or achievements to differ materially from those expressed or implied by any forward-looking statements or from historical
results. We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained
in Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements include information concerning
our possible or assumed future results of operations and statements preceded by, followed by, or that include the words “may,”
“will,” “could,” “would,” “should,” “believe,” “expect,”
“plan,” “anticipate,” “intend,” “estimate,” “predict,” “potential”
or similar expressions.
Forward-looking statements are inherently
subject to risks and uncertainties, many of which we cannot predict with accuracy and some of which we might not even anticipate.
Although we believe that the expectations reflected in the forward-looking statements are based upon reasonable assumptions at
the time made, we can give no assurance that the expectations will be achieved. Future events and actual results, financial and
otherwise, may differ materially from the results discussed in the forward-looking statements. Readers are cautioned not to place
undue reliance on these forward-looking statements. We have no duty to update or revise any forward-looking statements after the
date of this prospectus or to conform them to actual results, new information, future events or otherwise.
The factors described under “Risk
Factors” in this prospectus and in any documents incorporated by reference herein and therein, and other factors could cause
our or our industry’s future results to differ materially from historical results or those anticipated or expressed in any
of our forward-looking statements. We operate in a continually changing business environment, and new risk factors emerge from
time to time. Other unknown or unpredictable factors also could have material adverse effects on our future results, performance
or achievements. We cannot assure you that projected results or events will be achieved or will occur.
USE OF PROCEEDS
We may issue and sell shares of our common
stock having aggregate gross sales proceeds of up to $75,000,000 from time to time. Because there is no minimum offering amount
required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any,
are not determinable at this time.
We will retain broad discretion over
the use of the net proceeds from the sale of the securities offered hereby. We currently intend to use the net proceeds from this
offering primarily for working capital and general corporate purposes, including research and development expenses, sales and marketing
expenses, general and administrative expenses and capital expenditures. We may also use a portion of the net proceeds to acquire
or invest in businesses, products and technologies that are complementary to our own, although we have no current commitments or
agreements with respect to any acquisitions as of the date of this prospectus. The precise amount and timing of the application
of such proceeds will depend upon our funding requirements and the availability and cost of other capital. As of the date of this
prospectus, we cannot specify with certainty all of the particular uses for the net proceeds that we will have from the sale of
the shares of our common stock. Pending the use of the net proceeds from this offering, if any, we may invest the net proceeds
in investment grade, short-term interest-bearing obligations, such as money-market funds, certificates of deposit, or direct or
guaranteed obligations of the United States government, or hold the net proceeds as cash.
DILUTION
If you purchase shares of our common stock in
this offering, your interest will be diluted to the extent of the difference between the public offering price per share and the net tangible
book value per share of our common stock after this offering. We calculate net tangible book value per share by dividing our net tangible
assets (tangible assets less total liabilities) by the number of shares of our common stock issued and outstanding as of June 30, 2021.
Our historical net tangible book value at June
30, 2021 was $54.1 million, or approximately $2.07 per share of our common stock.
After giving effect to the sale of our common
stock in the aggregate amount of $75 million in this offering, at an assumed offering price of $18.41 per share, the last reported sale
price of our common stock on Nasdaq on August 3, 2021, and after deducting estimated offering expenses and commissions payable by us,
our adjusted net tangible book value as of June 30, 2021 would have been approximately $126.7 million, or approximately $4.19 per share
of our common stock. This represents an immediate increase in the net tangible book value of $2.12 per share of our common stock to our
existing stockholders and an immediate dilution in net tangible book value of approximately $14.22 per share of our common stock to new
investors. The following table illustrates per share dilution:
|
Assumed public offering price per share
|
|
|
|
|
|
$
|
18.41
|
|
|
Net tangible book value per share as of June 30, 2021
|
|
$
|
2.07
|
|
|
|
|
|
|
Increase in net tangible book value per share attributable to this offering
|
|
$
|
2.12
|
|
|
|
|
|
|
Adjusted net tangible book value per share as of June 30, 2021, after giving effect to this offering
|
|
|
|
|
|
$
|
4.19
|
|
|
Dilution per share to new investors purchasing shares in this offering
|
|
|
|
|
|
$
|
14.22
|
|
The table above assumes for illustrative purposes
that an aggregate of 4,073,873 shares of our common stock are sold at a price of $18.41 per share, the last reported sale price of our
common stock on Nasdaq on August 3, 2021, for aggregate gross proceeds of $75 million. The shares sold in this offering, if any, will
be sold from time to time at various prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed
offering price of $18.41 per share shown in the table above, assuming all of our common stock in the aggregate amount of $75 million is
sold at that price, would increase our adjusted net tangible book value per share after the offering to $4.22 per share and would increase
the dilution in net tangible book value per share to new investors in this offering to $15.19 per share, after deducting estimated offering
expenses and commissions payable by us.
A decrease of $1.00 per share in the price at
which the shares are sold from the assumed offering price of $18.41 per share shown in the table above, assuming all of our common stock
in the aggregate amount of $75 million is sold at that price, would decrease our adjusted net tangible book value per share after the
offering to $4.16 per share and would decrease the dilution in net tangible book value per share to new investors in this offering to
$13.25 per share, after deducting estimated offering expenses and commissions payable by us. This information is supplied for illustrative
purposes only.
Unless we indicate otherwise, all information
in this prospectus is based on 26,145,008 shares of common stock outstanding as of June 30, 2021, and excludes as of that date:
|
|
·
|
3,072,297 shares of our common stock issuable upon exercise of incentive and nonqualified stock options, restricted stock units, stock
appreciation rights and other forms of stock-based awards, with a weighted average strike price of $9.14 per share, from the Company’s
2018 Incentive Plan, as amended, and from two former plans – the Old PLx Omnibus Stock Option Plan and the Dipexium 2013 Equity
Incentive Plan;
|
|
|
·
|
5,705,935 shares of our common stock issuable upon the conversion of our Series A Preferred Stock at a conversion price of $2.22,
reflecting certain adjustments made upon conversion, subject to certain further adjustments;
|
|
|
·
|
124,571 shares of our common stock issuable upon the conversion of our Series B Preferred Stock at a conversion price of $2.91, reflecting
certain adjustments made upon conversion, subject to certain further adjustments;
|
|
|
·
|
686,685 shares of our common stock issuable upon the conversion of our Series B Preferred Stock at a conversion price of $3.10, subject
to certain adjustments;
|
|
|
·
|
2,477,865 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $7.50 per share;
|
|
|
·
|
58,502 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $6.41 per share; and
|
|
|
·
|
5,020,910 shares of our common stock issuable upon exercise of outstanding warrants at an exercise price of $4.31 per share.
|
To the extent that outstanding options
or warrants are exercised, outstanding restricted stock units are settled, or other shares are issued, investors purchasing shares
in this offering could experience further dilution. In addition, we may choose to raise additional capital due to market conditions
or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. To the extent
that additional capital is raised through the sale of equity or convertible debt securities, the issuance of those securities could
result in further dilution to our stockholders.
PLAN OF DISTRIBUTION
We have entered into an Equity Distribution
Agreement, or the Distribution Agreement, with JMP Securities LLC, or JMP Securities, under which we may issue and sell from time to time
shares of our common stock through JMP Securities as our sales agent. Pursuant to this prospectus we may issue and sell from time to time
shares or our common stock having an aggregate offering price of up to $75,000,000 through JMP Securities as our sales agent. Sales of
our common stock, if any, under this prospectus may be made in transactions that are deemed to be an “at the market offering”
as defined in Rule 415(a)(4) under the Securities Act. The Distribution Agreement has been filed as an exhibit to our registration statement
on Form S-3 of which this prospectus forms a part.
Each time we wish to issue and sell common
stock under the Distribution Agreement, we will notify JMP Securities of the number of shares to be issued, the dates on which
such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as we deem
appropriate. Once we have so instructed JMP Securities, unless JMP Securities declines to accept the terms of the notice, JMP Securities
has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares
of common stock up to the amount specified on such terms. The obligations of JMP Securities under the Distribution Agreement to
sell our common stock are subject to a number of conditions that we must meet.
JMP Securities will provide written confirmation
to us no later than the opening of the trading day on Nasdaq following the trading day in which our common stock is sold under
the Distribution Agreement. Each confirmation will include the number of shares of common stock sold on the preceding day, the
net proceeds to us and the compensation payable by us to JMP Securities in connection with the sales.
We will pay JMP Securities commissions
for their services in acting as agents in the sale of our shares. JMP Securities will be entitled to compensation at a commission
rate of 3.0% of the gross sales price per share of common stock sold under the Distribution Agreement. Because there is no minimum
offering amount required as a condition to closing this offering, the actual total public offering amount, commissions and proceeds
to us, if any, are not determinable at this time. We have also agreed to reimburse JMP Securities for certain specified expenses,
including the fees and disbursements of their legal counsel in an amount not to exceed $50,000.
We estimate that the total expenses for the
offering, excluding compensation and reimbursements payable to JMP Securities under the terms of the Distribution Agreement, will be approximately
$167,275.
Settlement for sales of common stock
will occur on the second trading day following the date on which any sales are made, or on some other date that is agreed upon
by us and JMP Securities in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of
our shares of common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company
or by such other means as we and JMP Securities agree upon. There is no arrangement for funds to be received in an escrow, trust
or similar arrangement.
In connection with the sale of common
stock on our behalf, JMP Securities will be deemed to be an “underwriter” within the meaning of the Securities Act,
and the compensation of JMP Securities will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to JMP Securities against certain civil liabilities, including liabilities under the Securities Act.
The offering pursuant to the Distribution
Agreement will terminate upon the termination of the Distribution Agreement as permitted therein.
JMP Securities and its affiliates may
in the future provide various investment banking and other financial services for us and our affiliates, for which services they
may in the future receive customary fees. To the extent required by Regulation M, JMP Securities will not engage in any market
making activities involving our common stock while the offering is ongoing under this prospectus.
LEGAL MATTERS
The validity of the issuance of the common
stock offered by this prospectus will be passed upon for us by Olshan Frome Wolosky LLP, New York, New York. JMP Securities LLC
is being represented in connection with this offering by Cooley LLP, New York, New York.
EXPERTS
The
consolidated financial statements of PLx Pharma Inc. and Subsidiaries as of December 31, 2020 and 2019 and for each of the two years in
the period ended December 31, 2020, have been audited by Marcum LLP, independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference. Such consolidated financial statements of PLx Pharma Inc. and Subsidiaries are incorporated
in this prospectus by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of
a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus, which
forms a part of the registration statement, does not contain all the information that is included in the registration statement.
You will find additional information about us in the registration statement. Any statements made in this prospectus concerning
legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement
or otherwise filed with the SEC for a more complete understanding of the document or matter.
We are subject to the informational requirements
of the Exchange Act, and in accordance therewith file quarterly, annual, and current reports and proxy statements and other information
with the SEC. You may read and copy any materials we file with SEC at the SEC’s Public Reference Room at 100 F Street N.E.,
Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers
that file electronically with the SEC. The address of the site is http://www.sec.gov.
We make available free of charge on or
through our Internet website www.plxpharma.com, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8–K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as
soon as reasonably practicable after we electronically file the material with, or furnish it to, the SEC.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows us to “incorporate
by reference” in this prospectus certain of the information we file with the SEC. This means we can disclose important information
to you by referring you to another document that has been filed separately with the SEC. The information incorporated by reference
is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede
information contained in this prospectus and any accompanying prospectus supplement. We incorporate by reference the documents
listed below that we have previously filed with the SEC:
|
|
·
|
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March
12, 2021, as amended on Form 10-K/A on April 30, 2021;
|
|
|
·
|
Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on September 25, 2020;
|
|
|
·
|
Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, filed with the SEC on May
14, 2021;
|
|
|
·
|
Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2021, filed with the SEC on August
6, 2021;
|
|
|
·
|
Our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC
on January 11, 2021, March 1, 2021, March 2, 2021, March 3, 2021, March 12, 2021, March 17, 2021 and May 14, 2021 (with respect to the
filed portions contained therein); and
|
|
|
·
|
The description of our common stock contained in our registration statement on Form 8-A filed with the
SEC on March 12, 2014, including any amendments or reports filed for the purpose of updating that description.
|
We also incorporate
by reference into this prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act prior to the completion or termination of the offering of the securities described in this prospectus, including
all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness
of the registration statement, but excluding any information deemed furnished and not filed with the SEC. Any statements contained
in a previously filed document incorporated by reference into this prospectus is deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus, or in a subsequently filed document also incorporated
by reference herein, modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute a part of this prospectus.
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, on written or oral request, a copy of any or all of the documents incorporated
by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents to PLx Pharma Inc.,
9 Fishers Lane, Suite E, Sparta, NJ 07871; telephone number: (973) 409-6541. You may also access the documents incorporated by reference
in this prospectus through our website at https://plxpharma.com/. Except for the specific incorporated documents listed above, no information
available on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms
a part.
Up to $75,000,000
Common Stock
PROSPECTUS SUPPLEMENT
JMP Securities
, 2021
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below are estimates (except
in the case of the SEC registration fee) of the amount of fees and expenses to be incurred in connection with
the issuance and distribution of the offered securities, other than underwriting discounts and commissions.
|
SEC Registration Fee
|
|
$
|
27,275
|
|
|
FINRA Filing Fee
|
|
|
*
|
|
|
Printing Fees and Expenses
|
|
|
*
|
|
|
Legal Fees and Expenses
|
|
|
*
|
|
|
Accounting Fees and Expenses
|
|
|
*
|
|
|
Transfer Agent’s Fees and Expenses
|
|
|
*
|
|
|
Miscellaneous Expenses
|
|
|
*
|
|
|
Total Expenses:
|
|
|
*
|
|
|
|
*
|
These fees and expenses depend on the types of securities offered and the number of offerings, and accordingly cannot be estimated
at this time.
|
Item 15. Indemnification of Directors and Officers
The
Company may, to the fullest extent permitted by Section 145 of the DGCL, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses,
liabilities, costs, fees or other matters referred to in or covered by said section, and the indemnification provided for shall
not be deemed exclusive of any other rights to which a person indemnified may be entitled under any bylaw, agreement, insurance,
vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has ceased to be director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of such a person.
No
director shall be personally liable to the Company or our stockholders for monetary damages for any breach of fiduciary duty by
such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable
law: (i) for breach of the director’s duty of loyalty to the Company or our stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
We have entered into indemnification
agreements with each of our directors and officers. These indemnification agreements require us, among other things, to indemnify
our directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred
by a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or
any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We maintain a general liability insurance
policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions
in their capacities as directors or officers.
In any underwriting agreement we enter
into in connection with the sale of securities being registered hereby, the underwriters may agree to indemnify, under certain
conditions, us, our directors, our officers and persons who control us within the meaning of the Securities Act of 1933, as amended,
or the Securities Act, against certain liabilities.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing
provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
The following exhibits are filed as part
of this registration statement and are incorporated herein by reference.
Exhibit
No.
|
Description of Exhibit
|
|
1.1+
|
Form of Underwriting Agreement.
|
|
1.2*
|
Equity Distribution Agreement, dated as of August 6, 2021, between the
Registrant and JMP Securities LLC.
|
|
3.1
|
Amended Certificate of Incorporation of PLx Pharma Inc. (incorporated by reference to Exhibit 3.3 to the Company’s Quarterly Report on Form 10-Q filed on August 11, 2017 (File No. 001-36351)).
|
|
3.2
|
Certificate
of Amendment to the Amended Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on February 20, 2019 (File No. 001-36351)).
|
|
3.3
|
Amended
and Restated Bylaws of PLx Pharma Inc. (incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K
filed on January 20, 2017 (File No. 001-36351)).
|
|
4.1+
|
Form of Preferred Stock Certificate of the Registrant.
|
|
4.2+
|
Form of Certificate of Designation of Preferred Stock of the Registrant.
|
|
4.3*
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Form of Indenture.
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4.4+
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Form of Debt Security.
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4.5+
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Form of Warrant Agreement, including form of Warrant Certificate.
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4.6+
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Form of Unit Agreement and Unit Certificate, if any.
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4.7+
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Form of Right Agreement and Right Certificate, if any.
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4.8
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Amended
and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of the Company
(incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed on February 20, 2019 (File No. 001-36351)).
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4.9
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Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 18, 2020 (File No. 001-36351)).
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4.10
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Form
of Warrant to Purchase Common Stock issued by PLx Pharma Inc. in connection with the Securities Purchase Agreement among PLx Pharma
Inc. and the investors set forth on the signature page thereto, dated as of November 16, 2020 (incorporated by reference to Exhibit
4.1 to the Company’s Current Report on Form 8-K filed on November 16, 2020 (File No. 001-36351)).
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+ To be filed, if necessary, by
amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated
herein by reference.
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**
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
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Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a) 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;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs
(a)(i), (a)(ii) and (a)(iii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the 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 the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(b) 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.
(c) 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.
(d) 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 this registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in 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;
(e) 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.
(f) 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.
(g) 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 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 Act and will be governed by the final
adjudication of such issue.
(h) 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 (“Act”)
in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets all 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
Town of Sparta, State of New Jersey on August 6, 2021.
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PLX PHARMA INC.
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|
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By:
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/s/ Natasha Giordano
|
|
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Natasha Giordano,
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|
|
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President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that
each individual whose signature appears below hereby constitutes and appoints Natasha Giordano and Rita O’Connor and each
of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this
registration statement, and to sign any registration statement for the same offering covered by this registration statement that
is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, increasing the
number of securities for which registration is sought, and all post-effective amendments thereto, and to file the same, with all
exhibits thereto and all documents in connection therewith, making such changes in this registration statement as such attorney-in-fact
and agent so acting deem appropriate, with the SEC, granting unto said attorney-in-fact and agent, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done with respect to the offering of
securities contemplated by this registration statement, 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 agent or any of them, or his, her or their substitute
or substitutes, may lawfully do or cause to be done or 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 below by the following persons in the capacities
and on the dates indicated.
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Signature
|
Title
|
Date
|
|
/s/ Natasha Giordano
|
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
August 6, 2021
|
|
Natasha Giordano
|
|
/s/ Rita O’Connor
|
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
|
August 6, 2021
|
|
Rita O’Connor
|
|
/s/ Michael J. Valentino
|
|
Director and Executive Chairman of the Board
|
August 6, 2021
|
|
Michael J. Valentino
|
|
/s/ Gary Balkema
|
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Director
|
August 6, 2021
|
|
Gary Balkema
|
|
/s/ Anthony Bartsh
|
|
Director
|
August 6, 2021
|
|
Anthony Bartsh
|
|
/s/ Robert Casale
|
|
Director
|
August 6, 2021
|
|
Robert Casale
|
|
/s/ Kirk Calhoun
|
|
Director
|
August 6, 2021
|
|
Kirk Calhoun
|
|
/s/ John W. Hadden II
|
|
Director
|
August 6, 2021
|
|
John W. Hadden II
|
|
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