Filed pursuant to Rule 424(b)(3)
File No. 333-281914
PROSPECTUS
$100,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Purchase
Contracts
Units
Subscription
Rights
From
time to time, we may offer and sell up to an aggregate amount of $100,000,000 of any combination of the securities described in this
prospectus, either individually or in combination with other securities, in one or more offerings. The securities we may offer may be
convertible into or exercisable or exchangeable for other securities. We may offer the securities separately or together, in separate
classes or series and in amounts, at prices and on terms that will be determined at the time the securities are offered.
This
prospectus provides you with a general description of the securities. Each time we offer and sell securities, we will provide a supplement
to this prospectus that contains specific information about the offering and the amounts, prices and terms of the securities. The supplement
may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this
prospectus and the applicable prospectus supplement, together with the documents we incorporate by reference, before you invest in any
of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information.
No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms
of the offering of such securities.
On December 4, 2023 and April 25, 2024, we effected reverse-stock-splits at ratios of 1-for-35 and 1-for-10, respectively. All share and share price information in this prospectus has been adjusted to give effect to the
reverse-stock-splits.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading
“Risk Factors” beginning on page 5 of this prospectus, as well as those contained in the applicable prospectus supplement
and in any free writing prospectuses we have authorized for use in connection with a specific offering, and in the other documents that
are incorporated by reference into this prospectus or the applicable prospectus supplement.
This
prospectus may not be used to offer or sell any of our securities unless accompanied by a prospectus supplement.
Our
common stock is listed on The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “ZVSA.” On August 30,
2024, the last reported sale price of our common stock was $2.77 per share. The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on Nasdaq or any securities market or other exchange of the securities covered
by the applicable prospectus supplement.
As
of August 30, 2024, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $2,969,961,
based on 1,072,188 shares of common stock held by non-affiliates on such date, and based on the last reported sale price of
our common stock on August 30, 2024 of $2.77 per share. Pursuant to General Instruction I.B.6 of Form S-3, in no event
will we sell securities registered on the registration statement of which this prospectus is a part with a value of more than one-third
of the aggregate market value of our common stock held by non-affiliates in any 12-month period, so long as the aggregate market value
of our common stock held by non-affiliates is less than $75,000,000. As of the date hereof, we have not offered any securities pursuant
to General Instruction I.B.6 of Form S-3 during the 12 calendar months prior to and including the date of this prospectus.
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 September 9, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this process, we may offer and sell any combination of the securities described
in this prospectus from time to time in one or more offerings, up to a total dollar amount of $100,000,000, as described in this
prospectus. Each time that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains specific
information about the securities being offered and sold and the specific terms of that offering. To the extent permitted by law, we may
also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
Such prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect
to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or
free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any
securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing
prospectuses), together with the additional information described under the heading “Where You Can Find More Information”
and “Information Incorporated by Reference.”
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus,
any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you.
We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.
We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date
on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of
that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated
by reference or, in each case, any earlier date specified for such information, unless we indicate otherwise. Our business, financial
condition, results of operations and prospects may have changed since those dates.
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 filed with the SEC before the date of this prospectus, on the other hand, you should rely on the
information in this prospectus. If any statement in a document incorporated by reference is inconsistent with a statement in another
document incorporated by reference having a later date, the statement in the document having the later date modifies or supersedes the
earlier statement.
This
prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference,
market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information.
Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not
independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated
by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions
and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk
Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under
similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place
undue reliance on this information.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
As
used in this prospectus, unless otherwise indicated or the context otherwise requires, references to “we,” “us,”
“our,” and the “Company” refer to the consolidated operations of ZyVersa Therapeutics, Inc. and its subsidiaries.
When we refer to “you,” we mean the potential holders of the applicable series of securities.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The
address of that website is www.sec.gov.
Copies
of certain information filed by us with the SEC are also available on our website at www.zyversa.com. The information contained
on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus or any prospectus supplement.
Our website address is included in this prospectus as an inactive textual reference only.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the
information in the registration statement. The full registration statement may be obtained from the SEC through the SEC’s website
at the address provided above. Forms of the indenture and other documents establishing the terms of any offered securities are or may
be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in
this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified in all respects by
reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant
matters.
Information
Incorporated by Reference
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently
filed document incorporated by reference modifies or replaces that statement.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been
filed with the SEC:
| ● | our
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023, filed with the
SEC on May 15, 2024; |
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC
on March 25, 2024; |
| ● | our
Quarterly Reports on Form
10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024, filed
with the SEC on May 15, 2024 and August 9, 2024, respectively; |
| | ● | our
audited financial statements for the years ended December 31, 2023 and 2022, and the reports
of Marcum LLP and Ernst & Young LLP thereon, contained on pages F-2 through F-28 of the
Post-Effective Amendment No. 1 to our Registration Statement on Form S-1 (File No. 333-275320)
filed with the SEC on July 12, 2024; and |
| ● | the
description of our securities set forth in Exhibit 4.8 of our Annual Report on Form 10-K
for the fiscal year ended December 31, 2023, together with any amendment or report filed
with the SEC for the purpose of updating such description. |
Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under
Item 9.01, is not incorporated by reference in this prospectus or any prospectus supplement.
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), prior to the termination of this offering, including all such documents we may file with
the SEC after the date of the initial registration statement of which this prospectus forms a part and prior to the effectiveness of
the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by
reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You
may obtain any of the documents incorporated by reference in this prospectus from the SEC through the SEC’s website at www.sec.gov.
You also may request a copy of any document incorporated by reference in this prospectus (excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference in this document), at no cost, by writing or telephoning us at the following
address and phone number:
ZyVersa
Therapeutics, Inc.
Attn:
Secretary
2200
N. Commerce Parkway, Suite 208
Weston,
Florida 33326
(754)
231-1688
COMPANY
OVERVIEW
We
are a clinical stage biopharmaceutical company leveraging proprietary technologies to develop drugs for patients with chronic renal or
inflammatory diseases with high unmet medical needs. Our mission is to develop drugs that optimize health outcomes and improve patients’
quality of life.
We
have two proprietary globally licensed drug development platforms, each of which was discovered by research scientists at the University
of Miami, Miller School of Medicine (the “University of Miami” or “University”). These development platforms
are:
| ● | Cholesterol
Efflux MediatorTM VAR 200 (2-hydroxypropyl-beta-cyclodextrin or “2HPβCD”)
is an injectable drug in clinical development for treatment of renal diseases. VAR 200 was
licensed to us from L&F Research LLC on December 15, 2015. L&F Research was
founded by the University of Miami research scientists who discovered the use of VAR 200
for renal diseases. |
| ● | Inflammasome
ASC Inhibitor IC 100 is a humanized monoclonal antibody in preclinical development for treatment
of inflammatory conditions. IC 100 was licensed from InflamaCore, LLC to us on April
18, 2019. InflamaCore, LLC was founded by the University of Miami research scientists who
invented IC 100. |
We
believe that each of our product candidates has the potential to treat numerous indications in their respective therapeutic areas. Our
strategy is to focus on indication expansion to maximize commercial potential.
Our
renal pipeline is initially focused on rare, chronic glomerular diseases. Our lead indication for VAR 200 is focal segmental glomerulosclerosis
(“FSGS”). On January 21, 2020, we filed an Investigational New Drug application (“IND”) for VAR 200, and the
United States Food and Drug Administration (“FDA”) has allowed our development plans to proceed to a Phase 2a trial in patients
with FSGS based on the risk/benefit profile of the active ingredient (2HPβCD). Prior to initiating a Phase 2a trial in patients
with FSGS, we are planning to initiate a small open-label Phase 2a trial in patients with diabetic kidney disease in which we expect to obtain patient proof-of-concept data more quickly than in an FSGS trial. This will enable assessment
of drug effects as patients proceed through treatment and will provide insights for developing a lager Phase 2a/b protocol in patients
with FSGS. An IND amendment for evaluation of VAR 200 in a Phase 2a trial in patients with diabetic kidney disease was filed with
the FDA on February 16, 2024. VAR 200 has pharmacologic proof-of-concept data in animal models representative of FSGS, Alport Syndrome,
and diabetic kidney disease providing opportunity for indication expansion.
Our
Inflammasome ASC Inhibitor IC 100 is nearing completion of preclinical development. Our focus is on advancing IC 100 toward an IND submission followed by initiation of a Phase 1 trial in patients with obesity and certain metabolic complications,
our lead indication. IC 100 has preclinical data in animal models representing 5 different indications, each demonstrating that IC 100
attenuates pathogenic inflammasome signaling pathways leading to reduced inflammation and improved histopathological and/or functional
outcomes. Those indications are multiple sclerosis (“MS”), retinopathy of prematurity (“ROP”), acute respiratory
distress syndrome (“ARDS”), spinal cord injury, and traumatic brain injury (TBI). Likewise, preclinical studies are underway
in atherosclerosis, Alzheimer’s disease, and Parkinson’s disease, and preparations are underway to initiate an IND-enabling
preclinical study in obesity with metabolic complications.
Preclinical studies are underway in Parkinson’s
disease, atherosclerosis, and obesity.
RISK
FACTORS
Investment
in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. Before deciding whether
to invest in our securities, you should carefully consider the risk factors incorporated by reference to our most recent Annual Reports
on Form 10-K and Form 10-K/A, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information
contained in or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the
risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus. The
risks and uncertainties we have described are not the only ones facing our Company. Additional risks and uncertainties not presently
known to us or that we currently believe are not material may also affect our business operations. Past financial performance may not
be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods.
If any of these risks actually occurs, our business, financial condition, results of operations or cash flows could be seriously harmed.
This could cause the trading price of our securities to decline, resulting in a loss of all or part of your investment in the offered
securities. The discussion of risks includes or refers to forward-looking statements. You should read the explanation of the qualifications
and limitations on such forward-looking statements contained in or incorporated by reference into this prospectus and in any applicable
prospectus supplement or free writing prospectus.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein and any prospectus supplement delivered with this prospectus may contain
forward-looking statements. We intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking
statements contained in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of
the Exchange Act. All statements other than statements of historical facts contained or incorporated by reference in this prospectus,
including, but not limited to, statements regarding our future results of operations and financial position, business strategy, plans
and prospects, existing and prospective products, research and development costs, timing and likelihood of success, and plans and objectives
of management for future operations and results, are forward-looking statements. These forward-looking statements can generally be identified
by the use of forward-looking terminology, including the terms “believes,” “can,” “could,” “estimates,”
“anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,”
“may,” “might,” “should,” “will” or “would” or, in each case, their negative
or other variations or comparable terminology, although not all forward-looking statements contain these identifying words. These statements
involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements
to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements.
Factors
that may impact such forward-looking statements include:
| ● | Our
ability to maintain adequate technology, intellectual property, data privacy and cybersecurity
practices. |
| ● | Our
reliance on third parties. |
| ● | The
risks related to general economic and financial market conditions, including the impact of
supply chain disruptions and inflationary cost pressures. |
| ● | The
possibility of an economic recession. |
| ● | The
impact of the political, legal and regulatory environment. |
| ● | The
changing landscape of the industries in which the we operate. |
| ● | Our
ability to raise capital, which may not be available on acceptable terms or at all, to execute
our business plan. |
| ● | The
outbreak of an infectious disease, such as the COVID-19 or a new variant thereof, or emergence
of another epidemic or pandemic that can potentially disrupt our business plans, product
development activities, ongoing clinical trials, including the timing and enrollment of patients,
and the health of our employees. |
| ● | The
limited liquidity and trading of our common stock. |
| ● | Volatility
in the price of our common stock due to a variety of factors, including changes in the competitive
and highly regulated industries in which we operate, variations in performance across competitors
and changes in laws and regulations affecting our business. |
| ● | Our
ability to maintain the listing of our common stock on The Nasdaq Capital Market. |
| ● | Geopolitical
changes and changes in applicable laws or regulations. |
| ● | Litigation
and regulatory enforcement risks, including the diversion of management time and attention
and the additional costs and demands resulting therefrom. |
Forward-looking
statements contained in this prospectus are based on the Company’s current expectations and beliefs and are based upon information
available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements,
that information may be limited or incomplete. Our forward-looking statements should not be read to indicate that we have conducted an
exhaustive inquiry into, or review of, all relevant information. These forward-looking statements involve a number of risks, uncertainties
(some of which are beyond the Company’s control) or other assumptions that may cause actual results or performance to be materially
different from those expressed or implied by these forward-looking statements. Forward-looking statements are inherently uncertain, and
investors are cautioned not to unduly rely upon these statements.
These
risks and uncertainties include, but are not limited to, those factors discussed under the heading “Risk Factors” below and
those described in the section titled “Risk Factors” incorporated by reference into this prospectus from our most recent
Annual Reports on Form 10-K and Form 10-K/A, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other
information contained in or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act
and in our other filings with the SEC. Should one or more of these risks or uncertainties materialize, or should any of the assumptions
prove incorrect, actual results may vary in material respects from those projected in our forward-looking statements. Furthermore, we
operate in an evolving environment. New risk factors and uncertainties may emerge from time to time, and it is not possible for management
to predict all risk factors and uncertainties.
We
qualify all of our forward-looking statements by these cautionary statements. The Company will not and does not undertake any obligation
to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may
be required by law. You should read this prospectus and the documents incorporated by reference herein and filed as exhibits to the registration
statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance,
and achievements may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary
statements.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock is not complete and may not contain all the information you should consider before investing
in our capital stock. The following description summarizes some of the terms of our Second Amended and Restated Certificate of Incorporation,
(the “Certificate of Incorporation”) Second Amended and Restated By-Laws (the “Bylaws”), and of the General
Corporation Law of the State of Delaware (the “DGCL”). This description is summarized from, and qualified in its entirety
by reference to, our Certificate of Incorporation and Bylaws, each of which has been publicly filed with the SEC, as well as the relevant
provisions of the DGCL.
Capital
Stock
Our
authorized capital stock consists of 250,000,000 shares of common stock, par value $0.0001 per share, and 1,000,000 shares of preferred
stock, par value $0.0001 per share.
Common
Stock
Holders
of shares of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders.
The holders of common stock do not have cumulative voting rights in the election of directors.
In
the event of our liquidation, dissolution or winding up and after payment in full of all amounts required to be paid to creditors and
to any future holders of preferred stock having liquidation preferences, if any, the holders of common stock will be entitled to receive
pro rata our remaining assets available for distribution. Holders of common stock do not have preemptive, subscription, redemption or
conversion rights. There are no redemption or sinking fund provisions applicable to the common stock. The rights, powers, preferences
and privileges of holders of the common stock are subject to those of the holders of any shares of preferred stock that the board of
directors may authorize and issue in the future.
Preferred
Stock
Under
the terms of the Certificate of Incorporation, our board of directors is authorized to direct us to issue shares of preferred stock in
one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, powers, 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.
Series
A Convertible Preferred Stock
On
December 12, 2022, the Company filed a Certificate of Designation (the “Series A Certificate of Designation”) with the Secretary
of State of the State of Delaware, designating 8,635 shares of the authorized but unissued shares of its preferred stock as Series A
Convertible Preferred Stock with a stated value of $1,000 per share (“Series A Preferred Stock”). The conversion price is
subject to a downward adjustment to no lower than a floor price of $700 per share of Series A Preferred Stock, and each share of Series
A Preferred Stock is currently convertible into 1.429 shares of common stock of the Company.
As
of the date hereof, a total of 50 shares of Series A Preferred Stock remain outstanding, which are convertible into 72 shares of the
Company’s common stock at the current conversion price of $700 per share of Series A Preferred Stock.
The
Series A Certificate of Designation includes the right for the Company to redeem such shares at 120% of the stated value of each share
of Series A Preferred Stock. The Series A Preferred Stock is a non-voting stock and does not entitle the holder thereof to vote on any
matter submitted to the stockholders of the Company for their action or consideration, except as otherwise provided by the DGCL or the
other provisions of the Certificate of Incorporation of the Company. The Series A Preferred Stock ranks senior to our common stock with
respect to rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of our affairs.
Series
B Convertible Preferred Stock
On
December 12, 2022, the Company filed a Certificate of Designation (the “Series B Certificate of Designation”) with the Secretary
of State of the State of Delaware, designating 5,062 shares of the authorized but unissued shares of its preferred stock as Series B
Convertible Preferred Stock with a stated value of $1,000 per share (“Series B Preferred Stock”). The conversion price is
subject to a downward adjustment to no lower than a floor price of $2,450 per share of Series B Preferred Stock, and each share of Series
B Preferred Stock is currently convertible into 0.408 shares of common stock of the Company.
As
of the date hereof, a total of 5,062 shares of Series B Preferred Stock remain outstanding, which are convertible into 2,067 shares of
the Company’s common stock at the current conversion price of $2,450 per share of Series B Preferred Stock.
The
Series B Certificate of Designation includes the right for the Company to redeem such shares at 120% of the stated value of each share
of Series B Preferred Stock. The Series B Preferred Stock is a non-voting stock and does not entitle the holder thereof to vote on any
matter submitted to the stockholders of the Company for their action or consideration, except as otherwise provided by the DGCL or the
other provisions of the Certificate of Incorporation of the Company. The Series B Preferred Stock ranks senior to our common stock with
respect to rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of our affairs.
Dividends
Declaration
and payment of any dividend is subject to the discretion of our board of directors. The time and amount of dividends is dependent upon,
among other things, our business prospects, results of operations, financial condition, cash requirements and availability, debt repayment
obligations, capital expenditure needs, contractual restrictions, covenants in the agreements governing current and future indebtedness,
industry trends, the provisions of Delaware law affecting the payment of dividends and distributions to stockholders and any other factors
or considerations our board of directors may regard as relevant.
We
currently intend to retain all available funds and any future earnings to fund the development and growth of our business, and therefore
do not anticipate declaring or paying any cash dividends on our common stock in the foreseeable future.
Anti-Takeover
Provisions
The
Certificate of Incorporation and Bylaws contain provisions that may delay, deter or discourage another party from acquiring control of
us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids.
These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors,
which may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board
of directors the power to discourage acquisitions that some stockholders may favor.
Authorized
but Unissued Shares
The
authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject
to any limitations imposed by the listing standards of the Nasdaq. 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.
Board
Composition, Filling Vacancies and Staggard Board.
The
Certificate of Incorporation provides that directors may be removed only for cause and only by the affirmative vote of the holders of
at least a majority of the voting power of all of the then outstanding shares of voting stock of the Company entitled to vote at an election
of directors. Any vacancies on the board of directors resulting from death, resignation, disqualification, retirement, removal or other
causes and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the
affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other
than any directors elected by the separate vote of one or more outstanding series of preferred stock), and shall not be filled by the
stockholders. Any director appointed in accordance with the preceding sentence shall hold office until the expiration of the term of
the class to which such director shall have been appointed or until his or her earlier death, resignation, retirement, disqualification,
or removal. Furthermore, the Certificate of Incorporation divides our board of directors into three classes with staggered three-year
terms. The classification of our board of directors and the limitations on the ability of our stockholders to remove directors and fill
vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of
us.
Special
Meetings of Stockholders
Our
Certificate of Incorporation provides that a special meeting of stockholders may be called by the (a) the Chairperson of the board of
directors, (b) the board of directors or (c) the Chief Executive Officer or President of the Company, provided that such special meeting
may be postponed, rescheduled or canceled by the board of directors or other person calling the meeting. The Bylaws limit the business
that may be conducted at an annual or special meeting of stockholders to those matters properly brought before the meeting.
Action
by Written Consent
Our
Certificate of Incorporation provides that any action required or permitted to be taken by the stockholders must be effected at an annual
or special meeting of the stockholders, and may not be taken by written consent in lieu of a meeting.
Advance
Notice Requirements for Stockholder Proposals and Director Nominations
Our
Bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election
as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals
must be timely given in writing and in proper form to our corporate secretary prior to the meeting at which the action is to be taken.
Generally, to be timely, notice must be received at the principal executive offices of the Company not less than 90 days nor more than
120 days prior to the first anniversary date of the annual meeting for the preceding year or, if later, the 10th day following the day
on which public disclosure of the date of such special meeting was first made. The Bylaws specify the requirements as to form and content
of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an
annual or special meeting.
Amendment
of Certificate of Incorporation or Bylaws
The
board of directors is expressly authorized to adopt, amend or repeal the Bylaws. Our stockholders also have the power to adopt, amend
or repeal the Bylaws; provided, that in addition to any vote of the holders of any class or series of stock of the Company required
by applicable law or by our Certificate of Incorporation and Bylaws, the adoption, amendment or repeal of the Bylaws by the stockholders
requires the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of all of
the then outstanding shares of voting stock of the Company entitled to vote generally in an election of directors, voting together as
a single class.
Limitations
on Liability and Indemnification of Officers and Directors
Our
Certificate of Incorporation contains provisions that limit the liability of the Company’s current and former directors for monetary
damages to the fullest extent permitted by Delaware law. Delaware law provides that directors of a corporation will not be personally
liable for monetary damages for any breach of fiduciary duties as directors, except liability for:
| ● | any
breach of his duty of loyalty to us or our stockholders; |
| ● | acts
or omissions not in good faith, or which involve intentional misconduct or a knowing violation
of law; |
| ● | unlawful
payments of dividends or unlawful stock repurchases or redemptions; and |
| ● | any
transactions from which the director derived an improper personal benefit. |
These
provisions may be held not to be enforceable for violations of the federal securities laws of the United States.
Dissenters’
Rights of Appraisal and Payment
Under
the DGCL, with certain exceptions, our stockholders have appraisal rights in connection with a merger or consolidation of our Company.
Pursuant to Section 262 of the DGCL, stockholders who properly demand and perfect appraisal rights in connection with such merger or
consolidation have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
Stockholders’
Derivative Actions
Under
the DGCL, any of our stockholders may bring an action in our name to procure a judgment in its favor, also known as a derivative action,
provided that the stockholder bringing the action is a holder of our shares at the time of the transaction to which the action relates.
Transfer
Agent and Registrar
The
transfer agent and registrar for the common stock is Continental Stock Transfer & Trust Company.
Trading
Symbol and Market
Our
common stock is listed on the Nasdaq under the symbol “ZVSA.”
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. We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange
for, other securities described in this prospectus. While the terms we have summarized below will apply generally to any debt securities
that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail
in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms
described below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental
indentures that specify the terms of a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We have filed the form of indenture
as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants
or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount” (“OID”) for U.S. federal income tax purposes because of interest payment
and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in any applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
| ● | the
title of the series of debt securities; |
| ● | any
limit upon the aggregate principal amount that may be issued; |
| ● | the
maturity date or dates; |
| ● | the
form of the debt securities of the series; |
| ● | the
applicability of any guarantees; |
| ● | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any
combination thereof, and the terms of any subordination; |
| ● | if
the price (expressed as a percentage of the aggregate principal amount thereof) at which
such debt securities will be issued is a price other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| ● | the
interest rate or rates, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and the
regular record dates for interest payment dates or the method for determining such dates; |
| ● | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if
applicable, the date or dates after which, or the period or periods during which, and the
price or prices at which, we may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms of those redemption provisions; |
| ● | the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at
the holder’s option to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable; |
| ● | the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| ● | any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series; |
| ● | whether
the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities, the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities, and the
depositary for such global security or securities; |
| ● | if
applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange; |
| ● | if
other than the full principal amount thereof, the portion of the principal amount of debt
securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof; |
| ● | additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant; |
| ● | additions
to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable; |
| ● | additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance; |
| ● | additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions
to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| ● | the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; |
| ● | whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made; |
| ● | the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any, and principal amounts of the debt securities of the series to any holder
that is not a “United States person” for federal tax purposes; |
| ● | any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, any other additions or changes in the provisions of the indenture, and any terms
that may be required by us or advisable under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
| ● | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose; |
| ● | if
we fail to pay the principal of, or premium, if any, on any series of debt securities as
and when the same shall become due and payable, whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of
such debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any; |
| ● | if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive written notice of such failure, requiring
the same to be remedied and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of the outstanding debt
securities of the applicable series; and |
| ● | if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
| ● | the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and |
| ● | subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to the holders not involved
in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
| ● | the
holder has given written notice to the trustee of a continuing event of default with respect
to that series; |
| ● | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request; |
| ● | such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and |
| ● | the
trustee does not institute the proceeding and does not receive from the holders of
a majority in aggregate principal amount of the outstanding debt securities of that series
other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
| ● | to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of
any series; |
| ● | to
comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale”; |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities; |
| ● | to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities,
to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default or to surrender any
right or power conferred upon us in the indenture; |
| ● | to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set
forth in the indenture; |
| ● | to
make any change that does not adversely affect the rights of any holder of debt securities
of any series in any material respect; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| ● | to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
| ● | extending
the fixed maturity of any debt securities of any series; |
| ● | reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or |
| ● | reducing
the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
| ● | register
the transfer or exchange of debt securities of the series; |
| ● | replace
stolen, lost or mutilated debt securities of the series; |
| ● | pay
principal of and premium and interest on any debt securities of the series; |
| ● | maintain
paying agencies; |
| ● | hold
monies for payment in trust; |
| ● | recover
excess money held by the trustee; |
| ● | compensate
and indemnify the trustee; and |
| ● | appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company (“DTC”), or another depositary named by us and identified in the applicable prospectus supplement with respect
to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating
to any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
| ● | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or |
| ● | register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of shares of our common stock, preferred stock or depositary shares, or debt securities, which may
be 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 will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain
the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants.
We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete form of warrant
and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms of the warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
| ● | the
number of shares of common stock, preferred stock or depositary shares purchasable upon the
exercise of warrants to purchase such shares and the price at which such number of shares
may be purchased upon such exercise; |
| ● | the
designation, stated value and terms (including, without limitation, liquidation, dividend,
conversion and voting rights) of the series of preferred stock or depositary shares purchasable
upon exercise of warrants to purchase preferred stock or depositary shares, as applicable; |
| ● | the
principal amount of debt securities that may be purchased upon exercise of a debt warrant
and the exercise price for the warrants, which may be payable in cash, securities or other
property; |
| ● | the
date, if any, on and after which the warrants and the related debt securities, depositary
shares, preferred stock or common stock will be separately transferable; |
| ● | the
terms of any rights to redeem or call the warrants; |
| ● | the
date on which the right to exercise the warrants will commence and the date on which the
right will expire; |
| ● | the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of
the warrants on any securities exchange; |
| ● | United
States federal income tax consequences applicable to the warrants; and |
| ● | any
additional terms of the warrants, including terms, procedures, and limitations relating to
the exchange, exercise and settlement of the warrants. |
Holders
of equity warrants will not be entitled to:
| ● | vote,
consent or receive dividends; |
| ● | receive
notice as stockholders with respect to any meeting of stockholders for the election of our
directors or any other matter; or |
| ● | exercise
any rights as stockholders of the Company. |
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of common stock, preferred
stock or depositary shares at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the
specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration
date, unexercised warrants will become void.
A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration
of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus
supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders
of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest
on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock, preferred
stock or depositary shares are exercised, the holders of the warrants will not have any rights of holders of the underlying shares, including
any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock, preferred stock or depositary
shares, if any.
DESCRIPTION
OF PURCHASE CONTRACTS
We
may issue purchase contracts for the purchase or sale of debt or equity securities issued by us. Each purchase contract will entitle
the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities at a specified purchase
price, which may be based on a formula, all as set forth in the applicable prospectus supplement. Any purchase contracts we issue will
be physically settled by delivery of such securities. The applicable prospectus supplement will also specify the methods by which the
holders may purchase or sell such securities and any acceleration, cancellation or termination provisions or other provisions relating
to the settlement of a purchase contract. 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 forms of any purchase contracts that we may offer under
this prospectus, before the issuance of such purchase contracts. We urge you to read the applicable prospectus supplement and any related
free writing prospectus, as well as the complete form of purchase contract, that contains the terms of the purchase contracts.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. The terms of any units offered under a prospectus supplement may differ
from the terms described below. You should read any prospectus supplement and any free writing prospectus that we may authorize to be
provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units.
Specific unit agreements will contain additional important terms and provisions, and we will file as an exhibit to the registration statement
of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of each unit agreement
relating to units offered under this prospectus, before the issuance of such units.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
| ● | the
title of the series of units; |
| ● | identification
and description of the separate constituent securities comprising the units; |
| ● | the
price or prices at which the units will be issued; |
| ● | the
date, if any, on and after which the constituent securities comprising the units will be
separately transferable; |
| ● | a
discussion of certain U.S. federal income tax considerations applicable to the units; and |
| ● | any
other terms of the units and their constituent securities. |
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase our common stock, preferred stock, debt securities, depositary shares, warrants or units consisting
of some or all of these securities. These subscription rights may be offered independently or together with any other security offered
hereby and may or may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any
offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to
which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The
prospectus supplement relating to any subscription rights we offer will include specific terms relating to the offering, including the
following, to the extent applicable:
| ● | the
price, if any, for the subscription rights; |
| ● | the
exercise price payable for our common stock, preferred stock, debt securities, depositary
shares, warrants or units consisting of some or all of these securities upon the exercise
of the subscription rights; |
| ● | the
number of subscription rights to be issued to each stockholder; |
| ● | the
number and terms of our common stock, preferred stock, debt securities, depositary shares,
warrants or units consisting of some or all of these securities which may be purchased per
each subscription right; |
| ● | the
extent to which the subscription rights are transferable; |
| ● | any
other terms of the subscription rights, including the terms, procedures and limitations relating
to the exchange and exercise of the subscription rights; |
| ● | the
date on which the right to exercise the subscription rights shall commence, and the date
on which the subscription rights shall expire; |
| ● | the
extent to which the subscription rights may include an over-subscription privilege with respect
to unsubscribed securities or an over-allotment privilege to the extent the securities are
fully subscribed; and |
| ● | if
applicable, the material terms of any standby underwriting or purchase arrangement which
we may enter into in connection with the offering of subscription rights. |
The
descriptions of the subscription rights in this prospectus and in any prospectus supplement are summaries of the material provisions
of the applicable subscription right agreements. These descriptions do not restate those subscription right agreements in their entirety
and may not contain all the information that you may find useful. 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 forms of the subscription rights agreement
and the subscription certificate that we may offer under this prospectus, before the issuance of such rights. We urge you to read the
applicable subscription right agreements because they, and not the summaries, define your rights as holders of the subscription rights.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, direct sales to the public, “at the market”
offerings, negotiated transactions, block trades or a combination of these methods or through underwriters or dealers, through agents
and/or directly to one or more purchasers. In addition, we may issue the securities as a dividend or distribution or in a subscription
rights offering to our existing securityholders. The securities may be distributed from time to time in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
We
will describe the terms of the offering of the securities and the specific plan of distribution in a prospectus supplement or supplements
to this prospectus, any related free writing prospectus that we may authorize to be provided to you, an amendment to the registration
statement of which this prospectus is a part or other filings we make with the SEC under the Exchange Act that are incorporated by reference.
Such description may include, to the extent applicable:
| ● | the
name or names of any underwriters, dealers, agents or other purchasers; |
| ● | the
purchase price of the securities or other consideration therefor, and the proceeds, if any,
we will receive from the sale; |
| ● | any
options to purchase additional shares or other options under which underwriters, dealers,
agents or other purchasers may purchase additional securities from us; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
public offering price; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement. Dealers
and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on
resale of the securities may be deemed to be underwriting discounts. If such dealers or agents were deemed to be underwriters, they may
be subject to statutory liabilities under the Securities Act.
If
underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without
a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any option to purchase additional shares or other option. If a dealer is used in the sale
of securities, we, or an underwriter, will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the
prospectus supplement the name of the dealer and the terms of the transaction. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may change from time to time. We may use underwriters, dealers or agents with whom we have a
material relationship. We will describe in the prospectus supplement, naming the underwriter, dealer or agent, the nature of any such
relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale
of securities and we will describe any commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, the agent will act on a best efforts basis for the period of its appointment.
If
we offer securities in a subscription rights offering to our existing securityholders, we may enter into a standby underwriting agreement
with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to
purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription
rights offering for us.
We
may provide agents, dealers and underwriters with indemnification against civil liabilities, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or dealers or underwriters may make with respect to these liabilities.
Agents, dealers and underwriters or their affiliates may engage in transactions with or perform services for us in the ordinary course
of business.
All
securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters
may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice.
We cannot guarantee the liquidity of the trading markets for any securities.
Any
underwriter may be granted an option to purchase additional shares, and engage in stabilizing transactions, short-covering transactions
and penalty bids in accordance with Regulation M under the Exchange Act. An underwriter’s option to purchase additional shares
involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions
involve purchases of the securities, either through exercise of the option to purchase additional shares or in the open market after
the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue
any of the activities at any time.
Any
underwriters, dealers or agents that are qualified market makers on Nasdaq may engage in passive market making transactions in our common
stock on Nasdaq in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering,
before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of
the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however,
the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize
the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued
at any time.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. Such
offering may be made into an existing trading market for such securities in transactions at other than a fixed price, either on or through
the facilities of Nasdaq or any other securities exchange or quotation or trading service on which such securities may be listed, quoted
or traded at the time of sale and/or to or through a market maker other than on Nasdaq or such other securities exchanges or quotation
or trading services. Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent. In addition,
we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties
may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so,
the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The
material terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
LEGAL
MATTERS
Thompson
Hine LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of the Company.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable
prospectus supplement.
EXPERTS
The
consolidated financial statements of ZyVersa Therapeutics, Inc. at December 31, 2023 and the year ended December 31, 2023 incorporated
by reference in ZyVersa Therapeutics, Inc. Form S-1 have been audited by Marcum LLP, independent registered public accounting firm,
as set forth in their report thereon (which contains an explanatory paragraph describing conditions that raise substantial doubt about
the Company’s ability to continue as a going concern as described in Note 2 to the financial statements) appearing elsewhere herein,
and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The
consolidated financial statements of ZyVersa Therapeutics, Inc. at December 31, 2022, for the period from December 13, 2022 through December
31, 2022 (Successor), for the period from January 1, 2022 through December 12, 2022 (Predecessor), and the year ended December 31, 2022
incorporated by reference in ZyVersa Therapeutics, Inc. Annual Report for the year ended December 31, 2023, included in the Post-effective
Amendment No. 1 to Form S-1 (No. 333-275320) have been audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their report thereon, (which contains an explanatory paragraph describing conditions that raise substantial
doubt about the Company’s ability to continue as a going concern as described in Note 2 to the financial statements) incorporated
by reference therein, and incorporated herein by reference. Such financial statements are incorporated herein in reliance upon the report of Ernst & Young LLP pertaining
to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on
the authority of such firm as experts in accounting and auditing.
$100,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Purchase
Contracts
Units
Subscription
Rights
PROSPECTUS
September
9, 2024
ZyVersa Therapeutics (NASDAQ:ZVSA)
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