Filed Pursuant to
Rule 424(b)(5)
Registration No. 333-175420
PROSPECTUS SUPPLEMENT
(To Prospectus dated July 26, 2011)
8,925,000 Units
Each Unit Consisting of One Share of Common Stock
and
0.40 of One Warrant to Purchase One Share of Common Stock
We are offering 8,925,000 units, each of which consists of one share of our common stock, par value $0.001 per share, and 0.40 of one warrant to purchase one share of our common stock at an exercise price per share of $0.53. The warrants are immediately exercisable and will expire on the third anniversary of the date of issuance. Units will not be issued or certificated, however, and purchasers will receive only shares of common stock and warrants. The common stock and the warrants may be transferred separately immediately upon issuance.
Our common stock is traded on the NYSE MKT exchange under the symbol “IBIO.” On April 22, 2013, the closing price for our common stock was $0.48 per share. We do not intend to list the warrants on any securities exchange or other trading market and we do not expect that a public trading market will develop for any of the warrants. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities pursuant to this registration statement with a value 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. In the event that subsequent to the effective date of this registration statement, the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75,000,000, then the one-third limitation on sales shall not apply to additional sales made pursuant to this registration statement. We have not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar months prior to the date of this prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus supplement beginning on page S-7, and under similar headings in the other documents that are incorporated by reference into this prospectus.
| Per Unit | Total | |||
| Public offering price | $0.4800 | $4,284,000 | ||
| Underwriting discounts and commissions (1) | $0.0336 | $ 299,880 | ||
| Proceeds, before expenses, to us | $0.4464 | $3,984,120 | ||
| (1) | We have agreed to reimburse the underwriter for certain of its expenses as described under “Underwriting” on page S-13 of this prospectus supplement. |
The underwriter expects to deliver the securities against payment on or about April 26, 2013.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Roth Capital Partners
Prospectus supplement dated April 23, 2013.
TABLE OF CONTENTS
| SUMMARY | S-5 |
| RISK FACTORS | S-7 |
| FORWARD-LOOKING STATEMENTS | S-8 |
| USE OF PROCEEDS | S-8 |
| CAPITALIZATION | S-9 |
| DILUTION | S-10 |
| DESCRIPTION OF CAPITAL STOCK | S-11 |
| THE SECURITIES WE ARE OFFERING | S-12 |
| UNDERWRITING | S-13 |
| NOTICE TO INVESTORS | S-14 |
| LEGAL MATTERS | S-16 |
| EXPERTS | S-16 |
| WHERE YOU CAN FIND MORE INFORMATION | S-16 |
| INFORMATION INCORPORATED BY REFERENCE | S-16 |
Prospectus |
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Page |
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SUMMARY
PROSPECTUS |
1 |
|
RISK
FACTORS |
4 |
|
FORWARD-LOOKING
STATEMENTS |
13 |
|
USE
OF PROCEEDS |
13 |
|
PLAN
OF DISTRIBUTION |
13 |
|
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF OUR CHARTER AND BYLAWS; TRANSFER
AGENT AND REGISTRAR |
15 |
|
THE
SECURITIES WE MAY OFFER |
16 |
|
LEGAL
MATTERS |
35 |
|
EXPERTS |
35 |
|
WHERE
YOU CAN FIND MORE INFORMATION |
35 |
|
INFORMATION
INCORPORATED BY REFERENCE |
36 |
|
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES |
36 |
You should rely only on the information contained in or incorporated by reference in this prospectus supplement, the accompanying prospectus and in any free writing prospectus that we have authorized for use in connection with this offering. We have not, and the underwriter has not, authorized anyone 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 the underwriter is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference in this prospectus supplement and the accompanying prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus supplement, the accompanying prospectus, the documents incorporated by reference in this prospectus supplement and the accompanying prospectus, and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the section of this prospectus supplement entitled “Information Incorporated by Reference” and the sections of the accompanying prospectus entitled “Information Incorporated by Reference” and “Where You Can Find Additional Information.” In this prospectus supplement, the “Company,” “iBio”, “we,” “us” and “our” refer to iBio, Inc.
About This Prospectus Supplement
This prospectus supplement and the accompanying prospectus form part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. This document contains two parts. The first part consists of this prospectus supplement, which provides you with specific information about this offering and also adds to and updates information contained in the accompanying prospectus and the documents incorporated by reference in this prospectus supplement and the accompanying prospectus. The second part, the accompanying prospectus, provides more general information, some of which may not apply to this offering. Generally, when we refer only to the “prospectus,” we are referring to both parts combined. This prospectus supplement may add, update or change information contained in the accompanying prospectus or in any document incorporated by reference that was filed with the Securities and Exchange Commission, or SEC, before the date of this prospectus supplement. To the extent that any statement we make in this prospectus supplement is inconsistent with statements made in the accompanying prospectus or any documents incorporated by reference herein or therein, the statements made in this prospectus supplement will be deemed to modify or supersede those made in the accompanying prospectus and such documents incorporated by reference herein and therein.
______________________
This summary highlights information contained elsewhere in this prospectus or incorporated by reference herein. This summary is not complete and may not contain all of the information that you should consider before deciding whether or not you should purchase the securities offered hereunder. You should read the entire prospectus supplement and accompanying prospectus carefully, including the section entitled “Risk Factors” beginning on page S-3 of this prospectus supplement and the section entitled “Risk Factors” in our Annual Report on Form 10-K for the year ended June 30, 2012, and all other information included or incorporated herein by reference in this prospectus before you decide whether to purchase our securities.
Our Company and Recent Developments
iBio, Inc. is a biotechnology company focused on developing select product candidates and commercializing its two proprietary platform technologies, the iBioLaunch™ platform for vaccines and therapeutic proteins, and the iBioModulator™ platform for vaccine enhancement . Our strategy is to promote our platform technology through commercial product collaborations and license arrangements and to realize value through the development of select product candidates. Through upfront license fees, milestone revenues, service revenues and royalties on end products, we expect to share with our licensees and collaborators in the value created by utilization of our platform technology. Additionally, to the extent that we successfully develop and license product candidates, we anticipate that we will share such value with our collaborators and licensees. We believe our technology offers the opportunity to develop products that might not otherwise be commercially feasible, and to work with both corporate and government clients to reduce their costs during product development and meet their needs for low cost, high quality biologics manufacturing systems and vaccines with improved properties. Our near-term focus is to establish business arrangements for use of our technology by licensees for the development and production of products for both therapeutic and vaccine uses.
Vaccine candidates presently being advanced on our proprietary platform are applicable to H1N1 swine-like influenza, H5N1 avian influenza, yellow fever, malaria and anthrax.
Therapeutic candidates presently being advanced on our proprietary platform include, a modified version of human C-1 esterase inhibitor for the treatment of hereditary angioedema and other diseases, human alpha-galactosidase A for the treatment of Fabry disease human alpha-1 antitrypsin for treatment of disorders caused by a lack or deficiency of alpha-1 antitrypsin and several other therapeutic protein targets including antibodies for which preliminary product feasibility has been demonstrated.
On November 21, 2012, we received notice from NYSE MKT LLC, or the exchange, that we currently are below certain of the exchange’s continued listing standards. The exchange indicated that its review of our Form 10-Q for the period ended September 30, 2012 indicates that we are not in compliance with Section 1003(a)(iii), which applies if a listed company has stockholders’ equity of less than $6,000,000 and net losses in its five most recent fiscal years. We were afforded the opportunity to submit a plan of compliance to the Exchange by December 21, 2012, that explains how we intend to regain compliance with the listing standards by October 14, 2013. We submitted that plan on a timely basis.
On February 26, 2013, we received a previously anticipated notice from the exchange that we currently are below certain of the exchange’s continued listing standards. The exchange indicated that its review of our Form 10-Q for the period ended December 31, 2012 indicates that we are not in compliance with Section 1003(a)(ii), which applies if a listed company has stockholders’ equity of less than $4,000,000 and net losses in its three of its four most recent fiscal years.
We were not required to submit a new plan of compliance to the exchange. In place thereof, the exchange afforded us and we accepted the opportunity to rely upon the plan we submitted in response to the letter from the exchange dated November 21, 2012. However, if we are not in compliance with the exchange’s listing standards by October 14, 2013, the timeframe contemplated by the plan, or do not make progress consistent with the plan, we will be subject to delisting procedures as set forth in Section 1010 and Part 12 of the NYSE Company Guide.
On April 18, 2013, we received notice from the exchange that we currently are below an additional continued listing standard. The exchange indicated that its review of our Form 10-Q for the quarter ended December 31, 2012, indicates that we are not in compliance with Section 1003(a)(iv), which applies if a listed company has sustained losses that are so substantial in relation to its overall operations or its existing financial resources, or its financial condition has become so impaired that it appears questionable, in the opinion of the exchange, as to whether the company will be able to continue operations and/or meet its obligations as they mature.
We have been afforded the opportunity to submit a plan of compliance to the exchange by May 6, 2013, that demonstrates our ability to regain compliance with Section 1003(a)(iv) of the Company Guide by July 15, 2013. If we do not submit a plan of compliance, or if the plan is not accepted by the exchange, we will be subject to delisting procedures as set forth in Section 1010 and Part 12 of the Company Guide.
We believe we can provide the exchange with a satisfactory plan by May 6, 2013, to show that we will be able to return to compliance with Section 1003(a)(iv) of the Company Guide by July 15, 2013.
Our Corporate Information
We are a Delaware corporation and were incorporated in April 2008. Our principal executive/administrative offices are located at 9 Innovation Way, Suite 100, Newark, Delaware 19711, and our telephone number is (302) 355-0650. Our website address is http://www.ibioinc.com. Information on or accessed through our website is not incorporated into this prospectus and is not a part of this prospectus. Our common stock is listed on the NYSE MKT exchange under the symbol “IBIO.”
| S-5 |
The Offering
| Securities we are offering: | 8,925,000 units, each consisting of one share of our common stock and 0.40 of one warrant to purchase one share of our common stock at an exercise price of $0.53 per share. The warrants are immediately exercisable, and will expire on the third anniversary of the issuance date. See “Description of Securities We Are Offering.” |
| Public offering price: | $0.48 per unit. |
| Common stock outstanding before this offering: | 47,767,095 shares |
| Common stock included in the units: | 8,925,000 shares |
| Common stock to be outstanding after this offering: | 56,692,095 shares |
| Use of proceeds from this offering: | We intend to use any net proceeds from this offering, together with other available funds, for working capital, including further development of our product candidate and proprietary technology, business development and for other general corporate purposes. See the section entitled “Use of Proceeds” in this prospectus supplement. |
| NYSE MKT exchange symbol: | IBIO |
| Listing: | Our common stock is listed on the NYSE MKT exchange under the symbol “IBIO”. There is no established trading market for the warrants, and we do not expect a market to develop. In addition, we do not intend to apply for listing of the warrants on any national securities exchange or other trading market. |
| Risk Factors: | Investing in our securities involves substantial risks. You should carefully review and consider the “Risk Factors” section of this prospectus supplement, in the accompanying prospectus and in the documents incorporated by reference in this prospectus supplement for a discussion of factors to consider before deciding to invest in our securities. |
The number of shares of common stock shown above to be outstanding after this offering is based on 47,767,095 shares outstanding as of December 31, 2012 and excludes:
• 6,660,000 shares of our common stock subject to options outstanding as of December 31, 2012 having a weighted average exercise price of $1.46 per share;
• 3,340,000 shares of our common stock that have been reserved for issuance in connection with future grants under our stock option plan as of December 31, 2012;
• 21,040,796 shares of our common stock that have been reserved for issuance upon exercise of outstanding warrants as of December 31, 2012 having a weighted average exercise price of $1.39(1) per share; and
• shares of our common stock issuable upon the exercise of warrants offered hereby.
| (1) | Does not give effect to an anti-dilution adjustment to our August 2008 Warrants. See “Risk Factors — Risks Relating to this Offering — This offering will result in an anti-dilution adjustment to warrants we issued to investors in 2008.” |
| S-6 |
An investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks described below and discussed under the section captioned “Risk Factors” contained in our Annual Report on Form 10-K for the year ended June 30, 2012 and our Quarterly Report on Form 10-Q for the quarters ended September 30, 2012 and December 31, 2012, each of which is incorporated by reference in this prospectus supplement in its entirety, together with other information in this prospectus supplement, the accompanying prospectus and the information and documents incorporated herein and therein by reference. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment.
Risks Relating to this Offering
Our management will have broad discretion in allocating the net proceeds of this offering, and may use the proceeds in ways in which you disagree.
Our management has significant flexibility in applying the net proceeds we expect to receive in this offering. Because the net proceeds are not required to be allocated to any specific investment or transaction, and therefore you cannot determine at this time the value or propriety of our application of those proceeds, you and other stockholders may not agree with our decisions. In addition, our use of the proceeds from this offering may not yield a significant return or any return at all for our stockholders. The failure by our management to apply these funds effectively could have a material adverse effect on our business, results of operations or financial condition. See “Use of Proceeds” for a further description of how management intends to apply the proceeds from this offering.
You will experience immediate dilution in the book value per share of the common stock you purchase.
Because the public offering price per unit is expected to be substantially higher than the book value per share of our common stock, you will suffer substantial dilution in the net tangible book value of the common stock you purchase in this offering. Based on the public offering price of $0.48 per unit and attributing no value to the warrants, if you purchase units in this offering, you will suffer immediate and substantial dilution of approximately $0.40 per share in the net tangible book value of the common stock you acquire. In the event that you exercise your warrants, you will experience additional dilution to the extent that the exercise price of those warrants is higher than the book value per share of our common stock. See “Dilution” below for a more detailed discussion of the dilution you will incur if you purchase securities in this offering.
There is no public market for the warrants being sold in this offering.
There is no established public trading market for the warrants being offered in this offering, and we do not expect a market to develop. We do not intend to apply for listing of any such warrants on any securities exchange or other trading market. Without an active market, the liquidity of the warrants will be limited.
The warrants included in this offering may not have any value.
The warrants will expire on the third anniversary of the issuance date. In the event our common stock price does not exceed the exercise price of the warrants during the period when the warrants are exercisable, the warrants may not have any value.
Holders of our warrants will have no rights as a common stockholder until they acquire our common stock.
Until you acquire shares of our common stock upon exercise of your warrants, you will have no rights with respect to our common stock. Upon exercise of your warrants, you will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs after the exercise date.
If our common stock is not listed on a national securities exchange, U.S. holders of warrants may not be able to exercise their warrants without compliance with applicable state securities laws and the value of your warrants may be significantly reduced.
| S-7 |
We have been notified by the NYSE MKT that we have failed to satisfy certain criteria required for continued listing on the NYSE. If our common stock is delisted from the NYSE MKT and is not eligible to be listed on another national securities exchange, the exercise of the warrants by U.S. holders may not be exempt from state securities laws. As a result, depending on the state of residence of a holder of the warrants, a U.S. holder may not be able to exercise its warrants unless we comply with any state securities law requirements necessary to permit such exercise or an exemption applies. Although we plan to use our reasonable efforts to assure that U.S. holders will be able to exercise their warrants under applicable state securities laws if no exemption exists, there is no assurance that we will be able to do so. As a result, in the event that our common stock is delisted from the NYSE MKT and is not eligible to be listed on another securities exchange, your ability to exercise your warrants may be limited. The value of the warrants may be significantly reduced if U.S. holders are not able to exercise their warrants under applicable state securities laws.
If our common stock is not listed on a national securities exchange, compliance with applicable state securities laws may be required for subsequent offers, transfers and sales of the shares of common stock and warrants offered hereby.
The shares of our common stock and the warrants are being offered pursuant to one or more exemptions from registration and qualification under applicable state securities laws. Because our common stock is listed on the NYSE MKT, we are not required to register or qualify in any state the subsequent offer, transfer or sale of the common stock or warrants. If our common stock is delisted from the NYSE MKT and is not eligible to be listed on another national securities exchange, subsequent transfers of the shares of our common stock and warrants offered hereby by U.S. holders may not be exempt from state securities laws. In such event, it will be the responsibility of the holder of shares or warrants to register or qualify the shares or the warrants for any subsequent offer, transfer or sale in the United States or to determine that any such offer, transfer or sale is exempt under applicable state securities laws.
This offering will result in an anti-dilution adjustment to warrants we issued to investors in 2008.
This offering reflects a purchase price per unit that is less than the currently effective exercise prices for the two sets of warrants we issued to investors in our offering of August 2008, which will result in anti-dilution adjustments to those warrants. Based on the public offering price of $0.48 per unit, these adjustments will result in an additional 785,144 shares of our common stock being issuable upon exercise of those warrants, and the exercise prices of the two sets of warrants will be adjusted from $1.82 and $2.34 per share to $1.53 and $1.97 per share, respectively.
This prospectus contains or incorporates by reference forward-looking statements that involve risks and uncertainties. These forward-looking statements are not historical facts but rather are plans and predictions based on current expectations, estimates and projections about our company and our industry, our beliefs and certain assumptions. We often use words such as “anticipate,” “expect,” “intend,” “plan,” “believe,” “seek,” “estimate” and variations of these words and similar expressions to identify forward-looking statements, although not all forward-looking statements will contain such words. These statements are not guarantees of future performance and are subject to certain risks, uncertainties and other factors, some of which are beyond our control, are difficult to predict and could cause actual results to differ materially from those expressed or forecasted in the forward-looking statements. These risks and uncertainties include those described in the section above entitled “Risk Factors” and also appear elsewhere in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein. You should not place undue reliance on these forward-looking statements, which reflect our view only as of the date of the document containing the applicable statement.
We estimate that the net proceeds to us from the sale of the units offered by this prospectus will be approximately $3,809,120 based on the public offering price of $0.48 per unit, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We will receive additional proceeds from any cash exercise of the warrants offered by this prospectus. We cannot provide any assurance as to the amount or timing of receipt of any such additional proceeds.
We currently intend to use the net proceeds of this offering for working capital, including further development of our product candidates and proprietary technology, business development and for other general corporate purposes.
| S-8 |
The amounts and timing of our use of proceeds will vary depending on a number of factors, including the amount of cash generated or used by our operations, and the rate of growth, if any, of our business. As a result, we will retain broad discretion in the allocation of the net proceeds of this offering. In addition, while we have not entered into any agreements, commitments or understandings relating to any significant transaction as of the date of this prospectus, we may use a portion of the net proceeds to pursue acquisitions, joint ventures and other strategic transactions.
Pending the final application of the net proceeds of this offering, we intend to invest the net proceeds of this offering in short-term, interest bearing, investment-grade securities.
The following table sets forth our capitalization as of December 31, 2012:
| • | on an actual basis; and | ||
| • | on an as-adjusted basis to give effect to the sale of 8,925,000 units offered by us in this offering at a public offering price of $0.48 per unit and attributing no value to the warrants, after deducting estimated underwriter’s commissions and estimated offering expenses that we must pay. |
You should read the following table in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and related notes incorporated by reference in this prospectus.
| As of December 31, 2012 | ||||||||
| Actual | As Adjusted | |||||||
| (unaudited) | ||||||||
| Cash and cash equivalents | $ | 2,818,964 | $ | 6,628,084 | ||||
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| Common stock, $0.001 par value, 100,000,000 shares authorized; 47,767,095 shares issued and outstanding at December 31, 2012 actual; 56,692,095 shares issued and outstanding at December 31, 2012 as adjusted | $ | 47,767 | $ | 56,692 |
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| Preferred stock, $0.001 par value, 1,000,000 shares authorized; 0 shares issued and outstanding at December 31, 2012 actual and as adjusted | — | — | ||||||
| Additional paid-in capital | 38,129,452 | 41,929,647 |
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| Accumulated deficit | (34,460,362 | ) | (34,460,362 |
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| Total stockholders’ equity | 3,716,857 | 7,525,977 |
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| Total capitalization | $ | 3,716,857 | $ | 7,525,977 | ||||
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The number of shares of common stock shown above to be outstanding after this offering is based on 47,767,095 shares outstanding as of December 31, 2012 and excludes:
• 6,660,000 shares of our common stock subject to options outstanding as of December 31, 2012 having a weighted average exercise price of $1.46 per share;
• 3,340,000 shares of our common stock that have been reserved for issuance in connection with future grants under our stock option plan as of December 31, 2012;
• 21,040,796 shares of our common stock that have been reserved for issuance upon exercise of outstanding warrants as of December 31, 2012 having a weighted average exercise price of $1.39(1) per share; and
• shares of our common stock issuable upon the exercise of warrants offered hereby.
| (1) | Does not give effect to an anti-dilution adjustment to our August 2008 Warrants. See “Risk Factors — Risks Relating to this Offering — This offering will result in an anti-dilution adjustment to warrants we issued to investors in 2008.” |
| S-9 |
Our net tangible book value as of December 31, 2012 was $911,408, or $0.02 per share. Net tangible book value per share is determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock outstanding as of December 31, 2012. Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our common stock immediately after this offering.
After giving effect to the sale of 8,925,000 units in this offering at a public offering price of $0.48 per unit and after deducting estimated underwriter’s commissions and offering expenses payable by us and attributing no value to the warrants, our as adjusted net tangible book value as of December 31, 2012 would have been approximately $4,720,528, or $0.08 per share. This represents an immediate increase in net tangible book value of $0.06 per share to existing stockholders and immediate dilution in net tangible book value of $0.40 per share to new investors purchasing our common stock in this offering. The following table illustrates this dilution on a per share basis:
| Public offering price per share | $ | 0.48 | ||||||
| Net tangible book value per share as of December 31, 2012 | $ | 0.02 | ||||||
| Increase per share attributable to new investors | $ | 0.06 | ||||||
| As adjusted net tangible book value per share after this offering | $ | 0.08 | ||||||
| Dilution per share to new investors | $ | 0.40 | ||||||
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The number of shares of common stock to be outstanding after this offering is based on 47,767,095 shares outstanding as of December 31, 2012 and excludes:
• 6,660,000 shares of our common stock subject to options outstanding as of December 31, 2012 having a weighted average exercise price of $1.46 per share;
• 3,340,000 shares of our common stock that have been reserved for issuance in connection with future grants under our stock option plan as of December 31, 2012;
• 21,040,796 shares of our common stock that have been reserved for issuance upon exercise of outstanding warrants as of December 31, 2012 having a weighted average exercise price of $1.39(1) per share; and
• shares of our common stock issuable upon the exercise of warrants offered hereby.
| (1) | Does not give effect to an anti-dilution adjustment to our August 2008 Warrants. See “Risk Factors — Risks Relating to this Offering — This offering will result in an anti-dilution adjustment to warrants we issued to investors in 2008.” |
| S-10 |
The following description of our capital stock and certain provisions of our Charter and our amended and restated bylaws, or Bylaws, is a summary and is qualified in its entirety by the provisions of our Charter and Bylaws.
Our authorized capital stock consists of 100,000,000 shares of common stock, par value $.001 per share, and 1,000,000 shares of preferred stock, par value $.001 per share.
Common Stock
Holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. Stockholders do not have cumulative voting rights. Holders of common stock have no preemptive, redemption or conversion rights and are not subject to future calls or assessments. No sinking fund provisions apply to our common stock. All outstanding shares are fully-paid and non-assessable. In the event of our liquidation, dissolution or winding up, holders of common stock are entitled to share ratably in assets available for distribution, subject to any prior distribution rights of any preferred stock then outstanding. Holders of common stock are entitled to receive proportionately any such dividends declared by our Board, out of legally available funds for dividends, subject to any preferences that may be applicable to any shares of preferred stock that may be outstanding at that time. The rights, preferences and privileges of holders of common stock are set forth in our Charter, which may be amended by the holders of a majority of the outstanding shares of common stock.
Preferred Stock
Our Board is authorized to issue up to 1,000,000 shares of preferred stock in one or more series without stockholder approval. Our Board may determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
Anti-Takeover Measures
Charter and Bylaw Provisions
Provisions of our Charter, bylaws and provisions of applicable Delaware law may discourage, delay or prevent a merger or other change in control that a stockholder may consider favorable. Pursuant to our Charter, our board of directors may issue additional shares of common or preferred stock. Any additional issuance of common stock could have the effect of impeding or discouraging the acquisition of control of us by means of a merger, tender offer, proxy contest or otherwise, including a transaction in which our stockholders would receive a premium over the market price for their shares, and thereby protects the continuity of our management. Specifically, if in the due exercise of his/her or its fiduciary obligations, the board of directors were to determine that a takeover proposal was not in our best interest, shares could be issued by our board of directors without stockholder approval in one or more transactions that might prevent or render more difficult or costly the completion of the takeover by:
| · | diluting the voting or other rights of the proposed acquirer or insurgent stockholder group, |
| · | putting a substantial voting bloc in institutional or other hands that might undertake to support the incumbent board of directors, or | |
| · | effecting an acquisition that might complicate or preclude the takeover. |
Our Charter also allows our board of directors to fix the number of directors in the by-laws. Cumulative voting in the election of directors is specifically denied in our Charter. The effect of these provisions may be to delay or prevent a tender offer or takeover attempt that a stockholder may determine to be in his, her or its best interest, including attempts that might result in a premium over the market price for the shares held by the stockholders.
| S-11 |
Delaware Law
We also are subject to Section 203 of the Delaware General Corporation Law. In general, these provisions prohibit a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that the stockholder became an interested stockholder, unless the transaction in which the person became an interested stockholder is approved in a manner presented in Section 203 of the Delaware General Corporation Law. Generally, a “business combination” is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder. In general, an “interested stockholder” is a person who, together with affiliates and associates, owns, or within three years, did own, 15% or more of a corporation’s voting stock. This statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire us.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company.
THE SECURITIES WE ARE OFFERING
We are offering units, each unit consisting of one share of our common stock and 0.40 of one warrant to purchase one share of our common stock.
The units will not be issued or certificated. The shares of common stock and the warrants that we are issuing are immediately separable and will be issued separately.
Common Stock
The material terms and provisions of our common stock and each other class of our securities which qualifies or limits our common stock are described under the caption “Description of Capital Stock” in this prospectus.
Warrants
The following summary of certain terms and provisions of warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by the provisions of the warrant, the form of which has been filed as an exhibit to the registration statement of which this prospectus is a part. Prospective investors should carefully review the terms and provisions of the form of warrant for a complete description of the terms and conditions of the warrants.
Duration and Exercise Price. The warrants offered hereby will entitle the holders thereof to purchase up to an aggregate of 3,570,000 shares of our common stock at an initial exercise price per share of $0.53, at any time and will expire on the third anniversary of the issuance date. The warrants will be issued separately from the common stock included in the units, and may be transferred separately immediately thereafter. Warrants will be issued in certificated form only.
Exercisability. The warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below).
Cashless Exercise. If, at the time a holder exercises its warrant, there is no effective registration statement registering, or the prospectus contained therein is not available for an issuance of the shares underlying the warrant to the holder, then in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the warrant.
Transferability. Subject to applicable laws, warrants may be transferred at the option of the holder upon surrender of the warrants to us together with the appropriate instruments of transfer.
Exchange Listing. We do not intend to list the warrants on any securities exchange or other trading market.
| S-12 |
Fundamental Transactions. In the event of any fundamental transaction, as described in the warrants and generally including any merger with or into another entity, sale of all or substantially all of our assets, tender offer or exchange offer, or reclassification of our common stock, then upon any subsequent exercise of a warrant, the holder will have the right to receive as alternative consideration, for each share of our common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock of the successor or acquiring corporation or of our company, if it is the surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the number of shares of our common stock for which the warrant is exercisable immediately prior to such event. In addition, in the event of a fundamental transaction, that is (1) an all cash transaction, (2) a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act or (3) with certain limited exceptions, a fundamental transaction involving a person or entity not traded on The New York Stock Exchange, Inc., The NYSE MKT, LLC, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market, then we or any successor entity shall pay at the holder’s option, exercisable at any time concurrently with or within forty-five (45) days after the consummation of the fundamental transaction, an amount of cash equal to the value of the warrant as determined in accordance with the Black Scholes option pricing model.
Right as a Stockholder. Except as otherwise provided in the warrants or by virtue of such holder’s ownership of shares of our common stock, the holders of the warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until they exercise their warrants.
Waivers and Amendments. Subject to certain exceptions, any term of the warrants may be amended or waived with our written consent and the written consent of the holders of at least 66 2/3% of the then-outstanding warrants and, in certain instances, with the prior written consent of the underwriter.
We have entered into an underwriting agreement with Roth Capital Partners, LLC with respect to this offering. Subject to certain conditions, we have agreed to sell to the underwriter, and the underwriter has agreed to purchase, the number of units provided below opposite its name.
|
Underwriter Roth Capital Partners, LLC |
Number of Units |
The underwriter is offering the units subject to its acceptance of the units from us and subject to prior sale. The underwriting agreement provides that the obligation of the underwriter to pay for and accept delivery of the units offered by this prospectus supplement and the accompanying prospectus is subject to the approval of certain legal matters by its counsel and to certain other conditions. The underwriters is obligated to take and pay for all of the units if any such units are taken.
Discounts, Commissions and Expenses
The underwriter has advised us that they propose to offer the units to the public at the initial public offering price set forth on the cover page of this prospectus supplement and to certain dealers at that price less a concession not in excess of $0.0168 per unit. After this offering, the initial public offering price and the concession to dealers may be changed by the underwriter. No such change shall change the amount of proceeds to be received by us as set forth on the cover page of this prospectus supplement. The units are offered by the underwriter as stated herein, subject to receipt and acceptance by it and subject to its right to reject any order in whole or in part. The underwriter has informed us that it does not intend to confirm sales to any accounts over which it exercises discretionary authority.
The following table shows the underwriting discounts and commissions payable to the underwriter by us in connection with this offering.
| Per unit | Total | |
|
Public offering price Underwriting discounts and commissions payable by us |
$0.4800 $0.0336 |
$4,284,000 $ 299,880 |
We estimate that expenses payable by us in connection with this offering, other than the underwriting discounts and commissions referred to above, will be approximately $135,000. We have agreed to reimburse the underwriter for certain out-of-pocket expenses not to exceed $40,000. In no event will the total compensation payable to the underwriter and any other member of the Financial Industry Regulatory Authority, Inc. or independent broker-dealer (including any financial advisor) in connection with the sale of the units offered hereby exceed 8.0% of the gross proceeds of this offering.
| S-13 |
Indemnification
We have agreed to indemnify the underwriter against certain liabilities, including liabilities under the Securities Act of 1933, as amended, or the Securities Act, and liabilities arising from breaches of representations and warranties contained in the underwriting agreement, or to contribute to payments that the underwriter may be required to make in respect of those liabilities.
Lock-up Agreements
We, our officers, directors and certain of our stockholders have agreed, subject to limited exceptions, for a period of 30 days after the date of the underwriting agreement, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of, directly or indirectly any shares of common stock or any securities convertible into or exchangeable for our common stock either owned as of the date of the underwriting agreement or thereafter acquired (in our case only at a price less than the public offering price set forth on the cover page of this prospectus supplement) without the prior written consent of the underwriter. This 30-day period may be extended if (1) during the last 17 days of the 30-day period, we issue an earnings release or material news or a material event regarding us occurs or (2) prior to the expiration of the 30-day period, we announce that we will release earnings results during the 16-day period beginning on the last day of the 30-day period, then the period of such extension will be 18 days, beginning on the issuance of the earnings release or the occurrence of the material news or material event. If after any announcement described in clause (2) of the preceding sentence, we announce that we will not release earnings results during the 16-day period, the lock-up period shall expire the later of the expiration of the 30-day period and the end of any extension of such period made pursuant to clause (1) of the preceding sentence. The underwriter may, in its sole discretion and at any time or from time to time before the termination of the lock-up period, without notice, release all or any portion of the securities subject to lock-up agreements.
Stabilization Activities; Overallotment
The underwriter has advised us that it does not intend to conduct any stabilization or over-allotment activities in connection with this offering.
Listing and Transfer Agent
Our common stock is listed on the NYSE MKT and trades under the symbol “IBIO.” The transfer agent of our common stock is Continental Stock Transfer & Trust Company. We do not plan on making an application to list the warrants on any exchange or other trading system. We will act as the registrar and transfer agent for the warrants.
Electronic Distribution
This prospectus supplement and the accompanying prospectus in electronic format may be made available on websites or through other online services maintained by the underwriter, or by its affiliates. Other than this prospectus supplement and the accompanying prospectus in electronic format, the information on the underwriter’s website and any information contained in any other website maintained by the underwriter is not part of this prospectus supplement, the accompanying prospectus or the registration statement of which this prospectus supplement and the accompanying prospectus form a part, has not been approved and/or endorsed by us or the underwriter in its capacity as underwriter, and should not be relied upon by investors.
Other
From time to time, the underwriter and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services it has received and, may in the future receive, customary fees.
NOTICE TO INVESTORS
Notice to Investors in the United Kingdom
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) an offer to the public of any securities which are the subject of the offering contemplated by this prospectus supplement and the accompanying prospectus may not be made in that Relevant Member State except that an offer to the public in that Relevant Member State of any such securities may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
| S-14 |
(a) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) by the underwriter to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or
(d) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of these securities shall result in a requirement for the publication by the issuer or the underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer to the public” in relation to any of the securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any such securities to be offered so as to enable an investor to decide to purchase any such securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
The underwriter has represented, warranted and agreed that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the FSMA)) received by it in connection with the issue or sale of any of the securities in circumstances in which section 21(1) of the FSMA does not apply to the issuer; and
(b) it has complied with and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise involving the United Kingdom.
European Economic Area
In particular, this document does not constitute an approved prospectus in accordance with European Commission’s Regulation on Prospectuses no. 809/2004 and no such prospectus is to be prepared and approved in connection with this offering. Accordingly, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (being the Directive of the European Parliament and of the Council 2003/71/EC and including any relevant implementing measure in each Relevant Member State) (each, a Relevant Member State), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date) an offer of securities to the public may not be made in that Relevant Member State prior to the publication of a prospectus in relation to such securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of securities to the public in that Relevant Member State at any time:
| · | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; |
| · | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in the last annual or consolidated accounts; or |
| · | in any other circumstances which do not require the publication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. |
| S-15 |
For the purposes of this provision, the expression an “offer of securities to the public” in relation to any of the securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State. For these purposes the units offered hereby are “securities.”
The legality of the securities offered hereby has been passed on for us by Andrew Abramowitz, PLLC, New York, New York. Lowenstein Sandler LLP, New York, New York, is acting as counsel for the underwriter in connection with this offering.
The financial statements of iBio, Inc. as of June 30, 2012 and 2011 and for the years then ended, incorporated by reference herein, have been audited by CohnReznick LLP, independent registered public accounting firm, as set forth in their report also incorporated by reference herein, which report includes an explanatory paragraph relating to iBio, Inc.’s ability to continue as a going concern, and are incorporated by reference herein in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. These documents also may be accessed through the SEC’s electronic data gathering, analysis and retrieval system, or EDGAR, via electronic means, including the SEC’s home page on the Internet (www.sec.gov).
We have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will furnish a full statement of the relative rights and preferences of each class or series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any shareholder upon request and without charge. Written requests for such copies should be directed to iBio, Inc., 9 Innovation Way, Suite 100, Newark, Delaware 19711, attention: Investor Relations or by telephone request to (302) 355-0650. Our website is located at http://www.ibioinc.com. Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus supplement.
INFORMATION INCORPORATED BY REFERENCE
We disclose important information to you by referring you to documents that we have previously filed with the SEC or documents that we will file with the SEC in the future. The information incorporated by reference is considered to be part of this prospectus. Information in documents that we file later with the SEC will automatically update and supersede information in this prospectus. We hereby incorporate by reference into this prospectus the documents listed below, and any future filings made by us with the SEC under Section 13(a), 13(c), 14, or 15(d) or the Exchange Act until we close this offering, including all filings made after the date of the registration statement. We hereby incorporate by reference the following documents; provided, however, that we are not incorporating any information contained in any Current Report on Form 8-K that is furnished but not filed with the SEC:
| 1. | Our Annual Report on Form 10-K for the year ended June 30, 2012 filed with the SEC on October 12, 2012. |
| 2. | Our Definitive Proxy Statement on Schedule 14A filed on November 16, 2012. |
| 3. | Our Quarterly Report on Form 10-Q, for the quarter ended December 31, 2012 filed with the SEC on February 19, 2013. |
| 4. | Our Current Reports on Form 8-K filed on February 22, 2013, March 4, 2013, April 22, 2013 and April 23, 2013. |
| S-16 |
| 5. | The description of our common stock contained in our registration statement on Form S-1 (Registration No. 333-171315), filed with the Securities and Exchange Commission on December 21, 2010, including any amendment or reports filed for the purpose of updating such description. |
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus is modified or superseded for purposes of the prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits unless such exhibits are specifically incorporated by reference in such documents). Requests for such documents should be made to us at the following address or telephone number:
iBio, Inc.
9 Innovation Way, Suite 100
Newark, Delaware 19711
(302) 355-0650
Attention: Corporate Secretary
| S-17 |
|
|
· |
designation
or classification; |
|
|
· |
aggregate
principal amount or aggregate offering
price; |
|
|
· |
maturity; |
|
|
· |
original
issue discount, if any; |
|
|
· |
rates
and times of payment of interest, dividends or other payments, if
any; |
|
|
· |
redemption,
conversion, exchange, settlement or sinking fund terms, if
any; |
|
|
· |
conversion,
exchange or settlement prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion, exchange or
settlement prices or rates and in the securities or other property
receivable upon conversion, exchange or
settlement; |
|
|
· |
ranking; |
|
|
· |
restrictive
covenants, if any; |
|
|
· |
voting
or other rights, if any; and |
|
|
· |
important
federal income tax considerations. |
|
|
· |
the
names of those underwriters, dealers or
agents; |
|
|
· |
applicable
fees, discounts and commissions to be paid to
them; |
|
|
· |
details
regarding over-allotment options, if any;
and |
|
|
· |
the
net proceeds to us. |
|
|
· |
Our
licensees’ preclinical or clinical trials may produce negative or
inconclusive results, which may require additional preclinical testing or
clinical trials or the abandonment of projects that we expect to be
promising. For example, promising animal data may be obtained about the
immunogenicity of a vaccine candidate and then human tests may result in
no or inadequate immune responses. In addition, unexpected safety concerns
may be encountered that would require further testing even if the vaccine
candidate produced a very significant immune response in human
subjects. |
|
|
· |
Initial
clinical results may not be supported by further or more extensive
clinical trials. For example, a licensee may obtain data that suggest a
desirable immune response from a vaccine candidate in a small human study,
but when tests are conducted on larger numbers of people, the same extent
of immune response may not occur. If the immune response generated by a
vaccine is too low or occurs in too few treated individuals, then the
vaccine will have no commercial
value. |
|
|
· |
Enrollment
in our licensee’s clinical trials may be slower than projected, resulting
in significant delays. The cost of conducting a clinical trial increases
as the time required to enroll adequate numbers of human subjects to
obtain meaningful results increases. Enrollment in a clinical trial can be
a slower-than-anticipated process because of competition from other
clinical trials, because the study is not of interest to qualified
subjects, or because the stringency of requirements for enrollment limits
the number of people who are eligible to participate in the clinical
trial. |
|
|
· |
Our
licensee might have to suspend or terminate clinical trials if the
participating patients are being exposed to unacceptable health risks.
Animal tests do not always adequately predict potential safety risks to
human subjects. The risk of any candidate product is unknown until it is
tested in human subjects, and if subjects experience adverse events during
the clinical trial, the trial may have to be suspended and modified or
terminated entirely. |
|
|
· |
Regulators
or institutional review boards may suspend or terminate clinical research
for various reasons, including noncompliance with regulatory
requirements. |
|
|
· |
Any
regulatory approval ultimately obtained may be limited or subject to
restrictions or post-approval commitments that render the product not
commercially viable. |
|
|
· |
The
effects of our licensee’s product candidates may not be the desired
effects or may include undesirable side
effects. |
|
|
· |
the
scope and results of our clinical
trials; |
|
|
· |
our
ability to advance additional product candidates into
development; |
|
|
· |
the
success of our anticipated commercial agreements with pharmaceutical
companies; |
|
|
· |
our
ability to establish and maintain additional development agreements or
other alternative arrangements; |
|
|
· |
the
timing of, and the costs involved in, obtaining regulatory
approvals; |
|
|
· |
the
cost of manufacturing activities; |
|
|
· |
the
cost of commercialization activities, including product marketing, sales
and distribution; |
|
|
· |
the
costs involved in preparing, filing, prosecuting, maintaining and
enforcing patent claims and other patent-related costs, including, if
necessary, litigation costs and the results of such litigation;
and |
|
|
· |
potential
acquisition or in-licensing of other products or
technologies. |
|
|
· |
continuing
to undertake preclinical development and clinical
trials; |
|
|
· |
participating
in regulatory approval processes; |
|
|
· |
formulating
and manufacturing products; and |
|
|
· |
conducting
sales and marketing activities. |
|
|
· |
Future
agreements may be for fixed terms and subject to termination under various
circumstances, including, in some cases, on short notice without
cause. |
|
|
· |
Our
future licensees may develop and commercialize, either alone or with
others, products and services that are similar to or competitive with the
products that are the subject of the agreement with
us. |
|
|
· |
Our
future licensees may underfund or not commit sufficient resources to the
testing, marketing, distribution or other development of our
products. |
|
|
· |
Our
future licensees may not properly maintain or defend our intellectual
property rights, or they may utilize our proprietary information in such a
way as to invite litigation that could jeopardize or invalidate our
proprietary information or expose us to potential
liability. |
|
|
· |
Our
future licensees may change the focus of their development and
commercialization efforts. Pharmaceutical and biotechnology companies
historically have re-evaluated their priorities from time to time,
including following mergers and consolidations, which have been common in
recent years in these industries. The ability of our product candidates
and products to reach their potential could be limited if our licensees or
customers decrease or fail to increase spending relating to such
products. |
|
|
· |
Patent
applications owned by or licensed to us will result in issued
patents; |
|
|
· |
Patent
protection will be secured for any particular
technology; |
|
|
· |
Any
patents that have been or may be issued to us will be valid or
enforceable; |
|
|
· |
Any
patents will provide meaningful protection to
us; |
|
|
· |
Others
will not be able to design around the patents;
or |
|
|
· |
Our
patents will provide a competitive advantage or have commercial
application. |
|
|
· |
Liabilities
that substantially exceed our product liability insurance, which we would
then be required to pay from other sources, if
available; |
|
|
· |
An
increase of our product liability insurance rates or the inability to
maintain insurance coverage in the future on acceptable terms, or at
all; |
|
|
· |
Withdrawal
of clinical trial volunteers or
patients; |
|
|
· |
Damage
to our reputation and the reputation of our products, resulting in lower
sales of any future commercialized product which we may
have; |
|
|
· |
Regulatory
investigations that could require costly recalls or product
modifications; |
|
|
· |
Litigation
costs; or |
|
|
· |
The
diversion of management’s attention from managing our
business. |
|
|
· |
Diluting
the voting or other rights of the proposed acquirer or insurgent
stockholder group, |
|
|
· |
Putting
a substantial voting block in institutional or other hands that might
undertake to support the incumbent board of directors,
or |
|
|
· |
Effecting
an acquisition that might complicate or preclude the
takeover. |
|
|
· |
through
underwriters for resale to the public or
investors; |
|
|
· |
transactions
on the NYSE Amex market or on any national securities exchange or U.S.
inter-dealer system of a registered national securities association on
which our common stock may be listed or quoted at the time of
sale; |
|
|
· |
in
the over-the-counter market; |
|
|
· |
in
private transactions and transactions otherwise than on these exchanges or
systems; |
|
|
· |
in
“at the market” offerings, within the meaning of Rule 415(a)(4) of
the Securities Act of 1933, as amended, or the Securities Act, to or
through a market maker or into an existing trading market, on an exchange
or otherwise; |
|
|
· |
in
connection with short sales of the
shares; |
|
|
· |
by
pledge to secure debt and other
obligations; |
|
|
· |
through
the writing of options, whether the options are listed on an options
exchange or otherwise; |
|
|
· |
in
connection with the writing of non-traded and exchange-traded call
options, in hedge transactions and in settlement of other transactions in
standardized or over-the-counter
options; |
|
|
· |
through
a combination of any of the above transactions;
or |
|
|
· |
any
other method permitted by law. |
|
|
· |
the
name or names of any agents, dealers, underwriters or investors who
purchase the securities; |
|
|
· |
the
purchase price of the securities being offered and the proceeds we will
receive from the sale; |
|
|
· |
the
amount of any compensation, discounts commissions or fees to be received
by the underwriters, dealer or
agents; |
|
|
· |
any
over-allotment options under which underwriters may purchase additional
securities from us; |
|
|
· |
any
discounts or concessions allowed or reallowed or paid to
dealers; |
|
|
· |
any
securities exchanges on which such securities may be
listed; |
|
|
· |
the
terms of any indemnification provisions, including indemnification from
liabilities under the federal securities laws;
and |
|
|
· |
the
nature of any transaction by an underwriter, dealer or agent during the
offering that is intended to stabilize or maintain the market price of the
securities. |
|
|
· |
diluting
the voting or other rights of the proposed acquirer or insurgent
stockholder group, |
|
|
· |
putting
a substantial voting bloc in institutional or other hands that might
undertake to support the incumbent board of directors,
or |
|
|
· |
effecting
an acquisition that might complicate or preclude the
takeover. |
|
|
· |
dividend
rights, |
|
|
· |
dividend
rates, |
|
|
· |
conversion
rights, |
|
|
· |
voting
rights, |
|
|
· |
terms
of redemption, and |
|
|
· |
liquidation
preferences. |
|
|
· |
the
title and stated value; |
|
|
· |
the
number of shares authorized; |
|
|
· |
the
liquidation preference per share; |
|
|
· |
the
purchase price; |
|
|
· |
the
dividend rate, period and payment date, and method of calculation for
dividends; |
|
|
· |
whether
dividends will be cumulative or non-cumulative and, if cumulative, the
date from which dividends will
accumulate; |
|
|
· |
the
procedures for any auction and remarketing, if
any; |
|
|
· |
the
provisions for a sinking fund, if
any; |
|
|
· |
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase
rights; |
|
|
· |
any
listing of the preferred stock on any securities exchange or
market; |
|
|
· |
whether
the preferred stock will be convertible into our common stock, and, if
applicable, the conversion price, or how it will be calculated, and the
conversion period; |
|
|
· |
whether
the preferred stock will be exchangeable into debt securities, and, if
applicable, the exchange price, or how it will be calculated, and the
exchange period; |
|
|
· |
voting
rights, if any, of the preferred
stock; |
|
|
· |
preemptive
rights, if any; |
|
|
· |
restrictions
on transfer, sale or other assignment, if
any; |
|
|
· |
whether
interests in the preferred stock will be represented by depositary
shares; |
|
|
· |
a
discussion of any material United States federal income tax considerations
applicable to the preferred stock; |
|
|
· |
the
relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs; |
|
|
· |
any
limitations on issuance of any class or series of preferred stock ranking
senior to or on a parity with the series of preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs;
and |
|
|
· |
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred
stock. |
|
|
· |
do
not limit the amount of debt securities that we may
issue; |
|
|
· |
allow
us to issue debt securities in one or more
series; |
|
|
· |
do
not require us to issue all of the debt securities of a series at the same
time; |
|
|
· |
allow
us to reopen a series to issue additional debt securities without the
consent of the holders of the debt securities of such series;
and |
|
|
· |
provide
that the debt securities will be unsecured, except as may be set forth in
the applicable prospectus
supplement. |
|
|
· |
the
title of the debt securities and whether they are senior or
subordinated; |
|
|
· |
the
aggregate principal amount of the debt securities being offered, the
aggregate principal amount of the debt securities outstanding as of the
most recent practicable date and any limit on their aggregate principal
amount, including the aggregate principal amount of debt securities
authorized; |
|
|
· |
the
price at which the debt securities will be issued, expressed as a
percentage of the principal and, if 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 common stock or other securities of iBio or the method by
which any such portion shall be
determined; |
|
|
· |
if
convertible, the terms on which such debt securities are convertible,
including the initial conversion price or rate and the conversion period
and any applicable limitations on the ownership or transferability of
common stock or other securities of iBio received on
conversion; |
|
|
· |
the
date or dates, or the method for determining the date or dates, on which
the principal of the debt securities will be
payable; |
|
|
· |
the
fixed or variable interest rate or rates of the debt securities, or the
method by which the interest rate or rates is
determined; |
|
|
· |
the
date or dates, or the method for determining the date or dates, from which
interest will accrue; |
|
|
· |
the
dates on which interest will be
payable; |
|
|
· |
the
record dates for interest payment dates, or the method by which such dates
will be determine; |
|
|
· |
the
persons to whom interest will be
payable; |
|
|
· |
the
basis upon which interest will be calculated if other than that of a
360-day year of twelve 30-day
months; |
|
|
· |
any
make-whole amount, which is the amount in addition to principal and
interest that is required to be paid to the holder of a debt security as a
result of any optional redemption or accelerated payment of such debt
security, or the method for determining the make-whole
amount; |
|
|
· |
the
place or places where the principal of, and any premium or make-whole
amount, and interest on, the debt securities will be
payable; |
|
|
· |
where
the debt securities may be surrendered for registration of transfer or
conversion or exchange; |
|
|
· |
where
notices or demands to or upon us in respect of the debt securities and the
applicable indenture may be served; |
|
|
· |
the
times, prices and other terms and conditions upon which we may redeem the
debt securities; |
|
|
· |
any
obligation we have to redeem, repay or purchase the debt securities
pursuant to any sinking fund or analogous provision or at the option of
holders of the debt securities, and the times and prices at which we must
redeem, repay or purchase the debt securities as a result of such
obligation; |
|
|
· |
the
currency or currencies in which the debt securities are denominated and
payable if other than United States dollars, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies and the terms and conditions relating thereto, and
the manner of determining the equivalent of such foreign currency in
United States dollars; |
|
|
· |
whether
the principal of, and any premium or make-whole amount, or interest on,
the debt securities of the series are to be payable, at our election or at
the election of a holder, in a currency or currencies other than that in
which the debt securities are denominated or stated to be payable, and
other related terms and conditions; |
|
|
· |
whether
the amount of payments of principal of, and any premium or make-whole
amount, or interest on, the debt securities may be determined according to
an index, formula or other method and how such amounts will be
determined; |
|
|
· |
whether
the debt securities will be in registered form, bearer form or both and
(i) if in registered form, the person to whom any interest shall be
payable, if other than the person in whose name the security is registered
at the close of business on the regular record date for such interest, or
(ii) if in bearer form, the manner in which, or the person to whom,
any interest on the security shall be payable if otherwise than upon
presentation and surrender upon
maturity; |
|
|
· |
any
restrictions applicable to the offer, sale or delivery of securities in
bearer form and the terms upon which securities in bearer form of the
series may be exchanged for securities in registered form of the series
and vice versa, if permitted by applicable laws and
regulations; |
|
|
· |
whether
any debt securities of the series are to be issuable initially in
temporary global form and whether any debt securities of the series are to
be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
security may, or shall be required to, exchange their interests for other
debt securities of the series, and the manner in which interest shall be
paid; |
|
|
· |
the
identity of the depositary for securities in registered form, if such
series are to be issuable as a global
security; |
|
|
· |
the
date as of which any debt securities in bearer form or in temporary global
form shall be dated if other than the original issuance date of the first
security of the series to be
issued; |
|
|
· |
the
applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or in the applicable
indenture; |
|
|
· |
whether
and under what circumstances we will pay any additional amounts on the
debt securities in respect of any tax, assessment or governmental charge
and, if so, whether we will have the option to redeem the debt securities
in lieu of making such a payment; |
|
|
· |
whether
and under what circumstances the debt securities being offered are
convertible into common stock or other securities of iBio, as the case may
be, including the conversion price or rate and the manner or calculation
thereof; |
|
|
· |
the
circumstances, if any, specified in the applicable prospectus supplement,
under which beneficial owners of interests in the global security may
obtain definitive debt securities and the manner in which payments on a
permanent global debt security will be made if any debt securities are
issuable in temporary or permanent global
form; |
|
|
· |
any
provisions granting special rights to holders of securities upon the
occurrence of such events as specified in the applicable prospectus
supplement; |
|
|
· |
if
the debt securities of such series are to be issuable in definitive form
only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or
conditions; |
|
|
· |
the
name of the applicable trustee and the nature of any material relationship
with us or any of our affiliates, and the percentage of debt securities of
the class necessary to require the trustee to take
action; |
|
|
· |
any
deletions from, modifications of or additions to our events of default or
covenants with regard to such debt securities and any change in the right
of any trustee or any of the holders to declare the principal amount of
any of such debt securities due and
payable; |
|
|
· |
applicable
CUSIP numbers; and |
|
|
· |
any
other terms of such debt securities not inconsistent with the provisions
of the applicable indenture. |
|
|
· |
exchange
them for any authorized denomination of other debt securities of the same
series and of a like aggregate principal amount and kind upon surrender of
such debt securities at the corporate trust office of the applicable
trustee or at the office of any transfer agent that we designate for such
purpose; and |
|
|
· |
surrender
them for registration of transfer or exchange at the corporate trust
office of the applicable trustee or at the office of any transfer agent
that we designate for such purpose. |
|
|
· |
issue,
register the transfer of or exchange debt securities of any series during
a period beginning at the opening of business 15 days before the day
that the notice of redemption of any debt securities selected for
redemption is mailed and ending at the close of business on the day of
such mailing; |
|
|
· |
register
the transfer of or exchange any debt security, or portion thereof, so
selected for redemption, in whole or in part, except the unredeemed
portion of any debt security being redeemed in part;
and |
|
|
· |
issue,
register the transfer of or exchange any debt security that has been
surrendered for repayment at the option of the holder, except the portion,
if any, of such debt security not to be so
repaid. |
|
|
· |
either
we are the continuing entity, or the successor entity, if other than us,
assumes the obligations (a) to pay the principal of, and any premium
or make-whole amount, and interest on, all of the debt securities and
(b) to duly perform and observe all of the covenants and conditions
contained in each indenture; |
|
|
· |
after
giving effect to the transaction, there is no event of default under the
indentures and no event which, after notice or the lapse of time, or both,
would become such an event of default, occurs and continues;
and |
|
|
· |
an
officers’ certificate and legal opinion covering such conditions are
delivered to each applicable
trustee. |
|
|
· |
default
in the payment of any installment of interest on any debt security of such
series continuing for 30 days; |
|
|
· |
default
in the payment of principal of, or any premium or make-whole amount on,
any debt security of such series for five business days at its stated
maturity; |
|
|
· |
default
in making any sinking fund payment as required for any debt security of
such series for five business days; |
|
|
· |
default
in the performance or breach of any covenant or warranty in the debt
securities or in the indenture by iBio continuing for 60 days after
written notice as provided in the applicable indenture, but not of a
covenant added to the indenture solely for the benefit of a series of debt
securities issued thereunder other than such
series; |
|
|
· |
a
default under any bond, debenture, note, mortgage, indenture or
instrument: |
|
|
· |
bankruptcy,
insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of iBio or any significant subsidiary of iBio;
and |
|
|
· |
any
other event of default provided with respect to a particular series of
debt securities. |
|
|
· |
we
have deposited with the applicable trustee all required payments of the
principal, any premium or make-whole amount, interest and, to the extent
permitted by law, interest on overdue installment of interest, plus
applicable fees, expenses, disbursements and advances of the applicable
trustee; and |
|
|
· |
all
events of default, other than the non-payment of accelerated principal, or
a specified portion thereof, and any premium or make-whole amount, have
been cured or waived. |
|
|
· |
in
the payment of the principal, any premium or make-whole amount, or
interest; |
|
|
· |
in
respect of a covenant or provision contained in the applicable indenture
that cannot be modified or amended without the consent of the holders of
the outstanding debt security that is affected by the default;
or |
|
|
· |
in
respect of a covenant or provision for the benefit or protection of the
trustee, without its express written
consent. |
|
|
· |
is
in conflict with any law or the applicable
indenture; |
|
|
· |
may
involve the trustee in personal liability;
or |
|
|
· |
may
be unduly prejudicial to the holders of debt securities of the series not
joining the proceeding. |
|
|
· |
change
the stated maturity of the principal of, or any premium or make-whole
amount on, or any installment of principal of or interest on, any such
debt security; |
|
|
· |
reduce
the principal amount of, the rate or amount of interest on, or any premium
or make-whole amount payable on redemption of, any such debt
security; |
|
|
· |
reduce
the amount of principal of an original issue discount security that would
be due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect any right
of repayment of the holder of any such debt
security; |
|
|
· |
change
the place of payment or the coin or currency for payment of principal of,
or any premium or make-whole amount, or interest on, any such debt
security; |
|
|
· |
impair
the right to institute suit for the enforcement of any payment on or with
respect to any such debt security; |
|
|
· |
reduce
the percentage in principal amount of any outstanding debt securities
necessary to modify or amend the applicable indenture with respect to such
debt securities, to waive compliance with particular provisions thereof or
defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in the applicable indenture;
and |
|
|
· |
modify
any of the foregoing provisions or any of the provisions relating to the
waiver of particular past defaults or covenants, except to increase the
required percentage to effect such action or to provide that some of the
other provisions may not be modified or waived without the consent of the
holder of such debt security. |
|
|
· |
to
evidence the succession of another person to us as obligor under such
indenture; |
|
|
· |
to
add to our covenants for the benefit of the holders of all or any series
of debt securities or to surrender any right or power conferred upon us in
such indenture; |
|
|
· |
to
add events of default for the benefit of the holders of all or any series
of debt securities; |
|
|
· |
to
add or change any provisions of an indenture (i) to change or
eliminate restrictions on the payment of principal of, or premium or
make-whole amount, or interest on, debt securities in bearer form, or
(ii) to permit or facilitate the issuance of debt securities in
certificated form, provided that such action shall not adversely affect
the interests of the holders of the debt securities of any series in any
material respect; |
|
|
· |
to
change or eliminate any provisions of an indenture, provided that any such
change or elimination shall become effective only when there are no debt
securities outstanding of any series created prior thereto which are
entitled to the benefit of such
provision; |
|
|
· |
to
secure the debt securities; |
|
|
· |
to
establish the form or terms of debt securities of any
series; |
|
|
· |
to
provide for the acceptance of appointment by a successor trustee or
facilitate the administration of the trusts under an indenture by more
than one trustee; |
|
|
· |
to
cure any ambiguity, defect or inconsistency in an indenture, provided that
such action shall not adversely affect the interests of holders of debt
securities of any series issued under such indenture;
and |
|
|
· |
to
supplement any of the provisions of an indenture to the extent necessary
to permit or facilitate defeasance and discharge of any series of such
debt securities, provided that such action shall not adversely affect the
interests of the holders of the outstanding debt securities of any
series. |
|
|
· |
the
principal amount of an original issue discount security that shall be
deemed to be outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity
thereof; |
|
|
· |
the
principal amount of any debt security denominated in a foreign currency
that shall be deemed outstanding shall be the United States dollar
equivalent, determined on the issue date for such debt security, of the
principal amount or, in the case of an original issue discount security,
the United States dollar equivalent on the issue date of such debt
security of the amount determined as provided in the preceding bullet
point; |
|
|
· |
the
principal amount of an indexed security that shall be deemed outstanding
shall be the principal face amount of such indexed security at original
issuance, unless otherwise provided for such indexed security under such
indenture; and |
|
|
· |
debt
securities owned by us or any other obligor upon the debt securities or by
any affiliate of ours or of such other obligor shall be
disregarded. |
|
|
· |
there
shall be no minimum quorum requirement for such meeting;
and |
|
|
· |
the
principal amount of the outstanding debt securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken account in determining
whether such request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under such
indenture. |
|
|
· |
either
(i) all securities of such series have already been delivered to the
applicable trustee for cancellation; or (ii) all securities of such
series have not already been delivered to the applicable trustee for
cancellation but (a) have become due and payable, (b) will
become due and payable within one year, or (c) if redeemable at our
option, are to be redeemed within one year, and we have irrevocably
deposited with the applicable trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in
which such debt securities are payable, an amount sufficient to pay the
entire indebtedness on such debt securities in respect of principal and
any premium or make-whole amount, and interest to the date of such deposit
if such debt securities have become due and payable or, if they have not,
to the stated maturity or redemption
date; |
|
|
· |
we
have paid or caused to be paid all other sums payable;
and |
|
|
· |
an
officers’ certificate and an opinion of counsel stating the conditions to
discharging the debt securities have been satisfied has been delivered to
the trustee. |
|
|
· |
to
defease and be discharged from any and all obligations with respect to
such debt securities; or |
|
|
· |
to
be released from its obligations with respect to such debt securities
under the applicable indenture or, if provided in the applicable
prospectus supplement, its obligations with respect to any other covenant,
and any omission to comply with such obligations shall not constitute an
event of default with respect to such debt
securities. |
|
|
· |
direct
obligations of the United States or the government that issued the foreign
currency in which the debt securities of a particular series are payable,
for the payment of which its full faith and credit is pledged;
or |
|
|
· |
obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the United States or other government that issued the
foreign currency in which the debt securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States or such other government, which are
not callable or redeemable at the option of the issuer thereof and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such government obligation or a specific
payment of interest on or principal of any such government obligation held
by such custodian for the account of the holder of a depository receipt.
However, except as required by law, such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the government obligation or the specific payment of interest on or
principal of the government obligation evidenced by such depository
receipt. |
|
|
· |
a
currency, currency unit or composite currency both by the government of
the country that issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within
the international banking
community; |
|
|
· |
the
European Currency Unit both within the European Monetary System and for
the settlement of transactions by public institutions of or within the
European Communities; or |
|
|
· |
any
currency unit or composite currency other than the European Currency Unit
for the purposes for which it was
established. |
|
|
· |
the
offering price and aggregate number of warrants
offered; |
|
|
· |
the
currency for which the warrants may be
purchased; |
|
|
· |
if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security; |
|
|
· |
if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable; |
|
|
· |
in
the case of warrants to purchase debt securities, the principal amount of
debt securities purchasable upon exercise of one warrant and the price at,
and currency in which, this principal amount of debt securities may be
purchased upon such exercise; |
|
|
· |
in
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such
exercise; |
|
|
· |
the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreement and the
warrants; |
|
|
· |
the
terms of any rights to redeem or call the
warrants; |
|
|
· |
any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants; |
|
|
· |
the
dates on which the right to exercise the warrants will commence and
expire; |
|
|
· |
the
manner in which the warrant agreement and warrants may be
modified; |
|
|
· |
federal
income tax consequences of holding or exercising the
warrants; |
|
|
· |
the
terms of the securities issuable upon exercise of the warrants;
and |
|
|
· |
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants. |
|
|
· |
in
the case of warrants to purchase debt securities, the right to receive
payments of principal of, or any premium or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or |
|
|
· |
in
the case of warrants to purchase common stock or preferred stock, the
right to receive any dividends or payments upon our liquidation,
dissolution or winding up or to exercise any voting
rights. |
|
|
· |
the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately; |
|
|
· |
any
provisions of the governing unit
agreement; |
|
|
· |
the
price or prices at which such units will be
issued; |
|
|
· |
the
applicable United States federal income tax considerations relating to the
units; |
|
|
· |
any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the units;
and |
|
|
· |
any
other terms of the units and of the securities comprising the
units. |
|
|
· |
to
cure any ambiguity; any provisions of the governing unit agreement that
differ from those described below; |
|
|
· |
to
correct or supplement any defective or inconsistent provision;
or |
|
|
· |
to
make any other change that we believe is necessary or desirable and will
not adversely affect the interests of the affected holders in any material
respect. |
|
|
· |
impair
any right of the holder to exercise or enforce any right under a security
included in the unit if the terms of that security require the consent of
the holder to any changes that would impair the exercise or enforcement of
that right; or |
|
|
· |
reduce
the percentage of outstanding units or any series or class the consent of
whose holders is required to amend that series or class, or the applicable
unit agreement with respect to that series or class, as described
below. |
|
|
· |
If
the change affects only the units of a particular series issued under that
agreement, the change must be approved by the holders of a majority of the
outstanding units of that series;
or |
|
|
· |
If
the change affects the units of more than one series issued under that
agreement, it must be approved by the holders of a majority of all
outstanding units of all series affected by the change, with the units of
all the affected series voting together as one class for this
purpose. |
|
|
1. |
Our
Annual Report on Form 10-K for the year ended June 30, 2010 filed with the
SEC on October 13, 2010 (as amended on November 24,
2010). |
|
|
2. |
Our
Definitive Proxy Statement on Schedule 14A filed on November 10,
2010. |
|
|
3. |
Our
Quarterly Reports on Form 10-Q , for the quarter ended September 30, 2010
filed with the SEC on November 15, 2010, for the quarter ended December
31, 2010 filed with the SEC on February 14, 2011, and for the quarter
ended March 31, 2011 filed with the SEC on May 18,
2011. |
|
|
4. |
Our
Current Reports on Form 8-K filed on October 29, 2010, November 3, 2010,
December 15, 2010, May 4, 2011 and June 23,
2011. |
|
|
5. |
All
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act prior to the termination of this
offering. |
8,925,000 Units
Each Unit Consisting of One Share of Common Stock
and
0.40 of One Warrant to Purchase One Share of Common Stock
Roth Capital Partners
April 23, 2013