As filed with the Securities and Exchange Commission on January 26, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DCD.C. 20549
FORM
Form S-3
Registration Statement under the Securities Act of
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DAUPHIN TECHNOLOGY,
GEOVAX LABS, INC.
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(Exact
(Exact Name of Registrant as Specified in Its Charter)
ILLINOIS 3570 87-0455038
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(State or Other Jurisdiction (Primary Standard (I.R.S.
Delaware | 87-0455038 |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) |
1900 Lake Park Drive, Suite 380
Smyrna, Georgia 30080
Tel: (678) 384-7220
(Address, including zip code, and telephone number, including area code, of Incorporation or Organization) Industrial Classification Number)
Identification No.)
800 E. Northwest Hwy.,registrant’s principal executive offices)
David A. Dodd
President & Chief Executive Officer
GeoVax Labs, Inc.
1900 Lake Park Drive, Suite 950, Palatine, IL 60067 847-358-4406
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(Address, Including Zip Code,380
Smyrna, Georgia 30080
Tel: (678) 384-7220
(Name, address and Telephone Number, Including
Area Code,telephone number of Registrant's Principal Executive Offices)
Andrew J. Kandalepas, President 800 E. Northwest Hwy.,agent for service)
Copies to:
T. Clark Fitzgerald III
Womble Bond Dickinson (US) LLP
271 17th Street NW, Suite 950, Palatine, IL
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60067 847-358-4406
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(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
2400
Atlanta, Georgia 30363
Tel: (404) 879-2455
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this registration statement becomes effective, as determined by the selling shareholders.
market conditions and other factors.
If the only securities being registered on this Form are to bebeing offered pursuant to dividend or interest reinvestment plans, please check the following box [_]
box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box [X]
box. ☑
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
☐
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box.[ ]
☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act of 1934, as amended.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |
Non-accelerated filer | ☑ | Smaller reporting company | ☑ | |
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered (1) | Amount to be registered | Proposed maximum offering price per unit | Proposed maximum | Amount of |
Primary Offering | ||||
Common Stock, $0.001 par value (3) |
|
| ||
Preferred Stock, $0.01 par value (3) |
|
| ||
Warrants (3) |
|
| ||
Units (3) |
|
| ||
Total Primary Offering of Securities | $100,000,000 | $ 10,910 (4) | ||
Secondary Offering by Selling Securityholders | ||||
Common Stock, $0.001 par value (5) | 303,668 | $4.76 (6) | $1,445,460 | $157.70 |
Total | $10,087.33(7) | |||
(1) | Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
(2) | Such indeterminate number or amount of |
(3) | Subject to footnote (1), and pursuant to Rule 457(o) under the Securities Act there is being registered hereunder such indeterminate amount of common stock, preferred stock, warrants, and units as may from time to time be |
(4) | Calculated pursuant to Rule 457(o) under the Securities Act. |
(5) | Represents shares of common stock that may be sold pursuant to this registration statement by the selling securityholders described herein. |
(6) | Pursuant to Rule 457(c), the proposed maximum aggregate offering price and registration fee for the secondary offering are computed based on the average of the high and low prices reported for the registrant’s common stock traded on the Nasdaq Capital Market on January 21, 2021. |
| (7) | Pursuant to Rule 457(p) under the Securities Act, the registrant is carrying forward to this registration statement $7,552,920 in aggregate offering price of securities that were previously registered on registration statement no. 333-239958 of the registrant, initially filed on July 20, 2020, and registration fees of $980.37 that were previously paid in connection with those securities pursuant to Rule 457(o). Accordingly, the additional fees due are $10,087.33, representing the total fees of $11,067.70, less the $980.37 previously paid. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to be registered for sale by selling
shareholders and 6,146,666 shares to be registered for resale by selling
shareholders upon exercise of warrants and options.
(2) Estimated solely fordelay its effective date until the purpose of computing theregistrant shall file a further amendment which specifically states that this registration fee pursuant
to Rule 457, based on the average of the high and low reported sales on
September 10, 2001.
Instatement shall thereafter become effective in accordance with Rule 416 underSection 8(a) of the Securities Act of 1933 thisor until the registration statement also coversshall become effective on such indeterminate numberdate as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We and any selling stockholders may not sell these securities until the registration statement filed with Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED JANUARY 26, 2021
PROSPECTUS
$101,445,460
GEOVAXLABS, INC.
Common Stock
Preferred Stock
Warrants
Units
We may, from time to time, offer and sell common stock, preferred stock, or warrants, either separately or in units, in one or more offerings. The preferred stock and warrants may be convertible into or exercisable or exchangeable for common or preferred stock. Selling stockholders may sell common stock. We will specify in the accompanying prospectus supplement more specific information about any such offering. The aggregate initial offering price of additional shares asall securities sold under this prospectus will not exceed $100,000,000, including the U.S. dollar equivalent if the public offering of any such securities is denominated in one or more foreign currencies, foreign currency units or composite currencies.
We and any selling stockholders may become issuableoffer these securities independently or together in any combination for sale directly to prevent dilution resulting from stock splits, stock dividendsinvestors or similar transactions asthrough underwriters, dealers or agents. We will set forth the names of any underwriters, dealers or agents and their compensation in the warrants referredaccompanying prospectus supplement.
This prospectus may not be used to above.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
DAUPHIN TECHNOLOGY, INC.
6,964,724 Sharessell any of Common Stock
$1.20 Bid Price as of September 10, 2001
THE COMPANY
We design and sell mobile hand-held, pen-based computers and broadband set-
top boxes, as well as other electronic devices for home and business use and
perform design services, process methodology consulting and intellectual
property development.
these securities unless accompanied by a prospectus supplement.
Our corporate offices are located at:
800 East Northwest Highway
Suite 950
Palatine, Illinois 60067
(847) 358-4406
Our shares tradecommon stock is presently traded on the over-the-counterNasdaq Capital Market under the symbol “GOVX.” On January 25, 2021, the last reported sale price for our common stock was $5.11 per share. As of January 25, 2021, the aggregate market electronic bulletin board
operatedvalue of our outstanding common stock held by the NASD.
THE OFFERING
We are registering 6,964,724non-affiliates was approximately $23,622,000, which was calculated based on 4,122,461 shares of outstanding common stock ownedheld by certain
selling shareholders. The shares were issued tonon-affiliates, at a price per share of $5.73, the shareholders in private
transactions or shares which may be acquired by them throughclosing price of our common stock on December 9, 2020, the exercise of
warrants or options. The shares offered for resale hereby were issued by the
Company in respecthighest closing price of the following: (i)766,058 shares were issued byCompany's common stock on the CompanyNasdaq Capital Market during the preceding sixty (60) day trading period.Pursuant to General Instruction I.B.6 of Form S-3, in connectionno event will we sell the securities described in this prospectus in a public primary offering with the acquisitiona value exceeding more than one-third (1/3) of the net assetsaggregate market value of Suncoast
Automation, Inc.; (ii)52,000 shares were issuedour common stock held by non-affiliates in any twelve (12)-month period, so long as the Company as payment for
certain advertisingaggregate market value of our outstanding common stock held by non-affiliates remains below $75,000,000. During the twelve (12) calendar months prior to and promotional expenses and consulting services; and
(iii)6,146,666 shares issuable byincluding the Companydate of this prospectus, we have not offered or sold any securities pursuant to the selling shareholders upon
exercise by themGeneral Instruction I.B.6 of issued and outstanding warrants and options.
Form S-3.
Investing in our sharessecurities involves a high degree of risk. You should invest
only if you can afford a complete loss. See "Risk Factors"the section entitled “Risk Factors” beginning on page 4.
Unless the context indicates otherwise, all references to "we", "our",
"us", and the "Company" refer to Dauphin Technology, Inc.other information included or incorporated by reference in this prospectus and its subsidiaries.
any prospectus supplement for a discussion of factors you should carefully consider before you make your investment decision.
Neither the Securities and Exchange Commission ("SEC") nor any state securities commission has determined whetherapproved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus is truthful or
complete. Nor have they made, nor will they make, any determination as to
whether anyone should buy these securities.prospectus. Any representation to the contrary is a criminal offense.
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The Date of this Prospectus is September 13, 2001
TABLE OF CONTENTS
Where You Can Find More Information 1
The Company 1
Risk Factors 4
Forward Looking Statements 10
Use of Proceeds 10
Selling Shareholders 11
Description of Capital Stock 11
Plan of Distribution 12
Legal Matters 14
Experts 14
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with
Subject to completion, the SEC. You can read and copy these reports, proxy statements
and other information at the SEC's public reference rooms at 450 Fifth Street,
N.W., Judiciary Plaza, Washington D.C.; 500 West Madison Street, Chicago,
Illinois 60661; and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such materials can be obtained from the public reference rooms at
prescribed rates. You can obtain information regarding operation of the public
reference rooms by calling the SEC at 1-800-SEC-0330. Such material can also be
inspected and printed from the SEC's Internet site located at
http://www.sec.gov.
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The SEC allows us to "incorporate by reference" into this prospectus
certain information we file with it. This means that we can disclose important
information to you by referring you to another document we filed separately with
the SEC. The information incorporated by reference is considered to be a partdate of this prospectus and information that we file later with the SEC will
automatically update and supercede previously filed information, including
information contained in this document.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934 until the selling shareholders sell all of
their shares.
. Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
. Quarterly report on Form 10-Q for the quarter ended June 30, 2001 and March
31, 2001;
. Form 8-K regarding the acquisition of the net assets of Suncoast
Automation, Inc. dated July 13, 2001 and filed with the Commission on July
16, 2001;
. Form 8-K/A regarding the acquisition of the net assets of Advanced Digital
Designs, Inc. dated August 18, 2000 and filed with the Commission on
September 25, 2000;
. Amendment No. 2 to Form S-1 Registration Statement dated July 21, 2000 and
filed with the Commission on July 28, 2000.
You may request a copy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address and
telephone number:
Assistant Secretary
Dauphin Technology, Inc.
800 E. Northwest Highway, Suite 950
Palatine, Illinois 60074
(847) 358-4406
is January 26, 2021.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS | 1 |
CAUTIONARY STATEMENT CONCERNING FORWARD LOOKING STATEMENTS | 2 |
PROSPECTUS SUMMARY | 3 |
Risk Factors | 7 |
USE OF PROCEEDS | 7 |
DESCRIPTION OF SECURITIES | 7 |
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES | 14 |
THE SECURITIES WE MAY OFFER | 14 |
DILUTION | 17 |
PLAN OF DISTRIBUTION | 19 |
LEGAL MATTERS | 21 |
EXPERTS | 22 |
INTERESTS OF NAMED EXPERTS AND COUNSEL | 22 |
WHERE YOU CAN FIND MORE INFORMATION | 22 |
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE | 22 |
You should rely only on the information contained or incorporated by reference or provided in this prospectus, and in any prospectus supplement.supplement and the registration statement. We have not authorized anyone else to provide you with different information. The selling
shareholders willIf anyone provides you with different or inconsistent information, you should not makerely on it. We are not making an offer ofto sell these sharessecurities in any state where the offer or sale is not permitted. You should assume that the information in this prospectus and any prospectus supplement, or incorporated by reference, is accurate only as of the dates of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration, or continuous offering, process. Under this shelf registration process, we may, from time to time, issue and sell any combination of preferred stock, common stock or warrants, either separately or in units, in one or more offerings with a maximum aggregate offering price of $100,000,000, including the U.S. dollar equivalent if the public offering of any such securities is denominated in one or more foreign currencies, foreign currency units or composite currencies. Common stock may also be sold by selling stockholders.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the offered securities. Any prospectus supplement may also add, update or change information contained in this prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by us in a prospectus supplement. The registration statement we filed with the SEC includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC and any prospectus supplement, together with additional information described under the heading “Where You Can Find More Information,” before making your investment decision.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent, underwriter or dealer has authorized any person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement prepared by or on behalf of us or to which we have referred you. This prospectus or any applicable supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus or any applicable supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus or any applicable prospectus supplement is accurate as ofon any date other thansubsequent to the date set forth on the front of the documents.
THE COMPANY
Our Business
We design and sell mobile hand-held, pen-based computers and broadband set-
top boxes, as well as other electronic devices for home and business use and
perform design services, process methodology consulting and intellectual
property development. We encountered severe financial problems in 1993 and 1994
relatingdocument or that any information we have incorporated by reference is correct on any date subsequent to a prior product line. On January 3, 1995, we filed a petition for
reorganization under Chapter 11the date of the Federal Bankruptcy Code. We operated
under Chapter 11 until July 23, 1996, when we were discharged and proceedings
ended. Since July 1996 we have been engaged primarily in the following
activities:
. contract manufacturing for third parties;
. developmentdocument incorporated by reference, even though this prospectus or any applicable prospectus supplement is delivered, or securities are sold, on a later date.
CAUTIONARY STATEMENT CONCERNING FORWARD LOOKING STATEMENTS
Some of the Orasis(R) hand-held computer and the OraLynx(TM)
set-top box; and
. acquiring personnel, capital and resources for these activities.
We terminated contract manufacturing during the middle of 1999. We did this
for two reasons. First, we sought to focus on production and marketing of
Orasis(R). Second, we sought to identify additional products for development. We
believe these activities present greater opportunity for growth and
profitability than contract manufacturing.
We completed development and production tooling for Orasis(R) during 1998
and 1999. Orasis(R) is a mobile hand-held, pen-based computer that incorporates
features which we believe provide greater power and flexibility to address
performance requirements in a variety of industrial and commercial uses. We have
produced a limited number of Orasis(R) units which have been used for marketing
and limited sales. Orasis(R) has been favorably received by industry
publications and potential users.
Toward the end of 1999, we identified set-top boxes as a focus for product
development and on February 17, 2000 signed a contract with Estel
Telecommunications SA to develop and produce set-top boxes for sale in Greece. A
set-top box is an electronic device that converts digital signals into a user
acceptable format via other electronic devices such as television sets,
telephones and computers. It is a routing device that enables you to access and
transmit information to take advantage of services offered by television,
telephone, Internet and other providers of communication, information or
entertainment content or media. For example, you may connect a set-top box to
your television to receive cable television programming and music broadcasts
through your television and home sound system. You may also connect a set-top
box to a computer or various office equipment to serve a variety of commercial
uses. Throughout 2000 and 2001, the Company has successfully developed multiple
versions of its OraLynx(TM) set-top box and is continuing its further
development.
During 2000, in an effort to increase our engineering expertise, the
Company acquired the net assets of T & B Design, Inc. (f/k/a Advanced Digital
Designs, Inc.) ("ADD"), Advanced Technologies, Inc., ("ATI"), and 937 Plum Grove
Road Partnership ("937") pursuant to an Asset Purchase Agreement. ADD performs
design services, process methodology consulting and intellectual property
development for a variety of technology companies. ADD's engineers specialize in
telecommunications, especially wireless and cable-based product development, as
well as multimedia development, including digital video decoding and processing.
In July 2001, the Company purchased the net assets of Suncoast Automation,
Inc. ("Suncoast") from ProtoSource Corporation. Suncoast is a provider of
private, interactive cable systems providing bundled services of basic cable TV,
premium programming, video games and high-speed Internet access to the extended
stay hospitality industry.
Our Opportunity
Orasis (R) is a hand-held computer developed by the Company with features
to meet the expressed desires of many potential customers. The unit was
developed with the multi-sector mobile user in mind. As such, it incorporated an
upgradable processor, user upgradable memory and hard disc, various modules and
mobile devices to satisfy the needs of various industries. Basic unit features
are as follows:
. The unit weight is approximately 3 pounds
. The battery operating life is from 2 to 8 hours
. The unit is equipped with 233 MHz Pentium MMX processor, which can be
upgraded to 266 MHz Pentium MMX
. The standard unit is equipped with 64 MEG of memory upgradable to 128 MEG of
RAM
. Standard two type II or a single type III PCMCIA slot
. 2.1 GB expandable to 18 GB hard drive
. Built in speaker and microphone (including sound blaster for voice
recognition and multimedia)
. Video conferencing port
. Modular expansion bay with docking connector
. Electro-magnetic pen, voice activation, and an Infra Red keyboard for data
input
. CDROM drive, floppy drive, DVD drive, credit card readers, smart-card
readers, radio modems, wireless receivers, port replicators, USB hubs, audio
source I/O, heads-up goggles, GPS module and other attachable devices
Much more flexible and powerful than a Personal Digital Assistant ("PDA"),
the Orasis(R) is an MS-
2
DOS/Windows 95/98/2000, Windows NT and Linux compatible machine. Although the
basic unit carries a number of advanced features, the most significant advantage
of Orasis(R) is its upgradability. The expansion bay allows for the use of
CDROM, floppy drive, wireless radio, extended battery pack or any other device
through the PCI expansion bus. Unlike competitor models Orasis(R) does not lock
the customer into a single format. Orasis(R) affords a customer complete
flexibility and versatility offered by no other mobile computer presently on the
market. It is a time, labor, and money-saving device that can be custom-
configured with a variety of options to meet the end-user's needs. The Company
has not recognized significant sales of the product to date and will adjust its
product as the market further develops new technologies.
The OraLynx(TM) Broadband set-top box processes high-speed video, provides
storage and works with coaxial cable, ADSL and fiber. The OraLynx(TM) set-top
box offers considerable advantages for service providers and end users. For
service providers, the OraLynx(TM) set-top box enables integration of data,
voice, and video over one unified network using one termination device. For end
users, the OraLynx(TM) set-top box serves as a simple yet sophisticated gateway
and access device that can be controlled with a remote control, keyboard or
other mobile handheld device. The OraLynx(TM) set-top box can be networked to
PCs, Internet appliances, and more. The OraLynx(TM) can provide direct access to
interactive TV, video-on-demand and ATM or IP voiceover phone service. Basic
unit features are as follows:
. High quality/high speed user interface (2D graphics)
. Seamless Video-on-Demand Service
. Instant Telephone Access
. IP or ATM voiceover
. Supports up to 4 telephone lines
. Supports standard Internet protocols and various Internet connections
(xDSL, SONET, ATM25, Ethernet)
. Networking and Smart Appliance Interface
. Provides wireless or conventional networking
The Company performs design services, process methodology consulting and
intellectual property development for a variety of technology companies. The
Company's engineers specialize in telecommunications, especially wireless and
cable-based product development, as well as multimedia development, including
digital video decoding and processing. The Company has received a contract for
the production and sale of set-top boxes, but has not yet begun significant
production. It has also amended the contract and extended the delivery dates on
two occasions.
The Orasis(R) and OraLynx(TM) are capable products within their respective
markets. We must focus on the marketing and distribution of those products if we
are to ever obtain profitability. The opportunity will be lost if we fail to
respond quickly. Our industry is characterized by swift change and our products
may become obsolete if competitors offer new technologies or features that we do
not possess. Consequently, we must act swiftly.
Our Strategy
Our goals are to capture the opportunity presented by the Orasis(R) and
OraLynx(TM) set-top box products and to become a leading provider of electronic
products. We expect to develop or acquire a variety of products and services
that complement each other or offer production and operating economies. In this
way, we seek to minimize the risk presented by reliance upon any given product
that may become obsolete through technological change.
We expect to increase our development, production and marketing
capabilities by increasing staff and coordinating relationships with outside
manufacturers and sales representatives. We will then establish a responsive
level of production and distribution. At the same time, we have begun an
aggressive marketing campaign to seize opportunities in the growing set-top box
and hand-held computer markets.
3
Recent Developments
On April 12, 2000, we entered into a common stock purchase agreement with
Techrich International Limited, an institutional investor ("Techrich"). The
agreement provides for the future purchase of shares and issuance of warrants to
Techrich. The common stock purchase agreement establishes what is sometimes
termed an equity line of credit or an equity drawdown facility.
In general, the equity line operates like this: Techrich has committed to
provide us up to $100 million as we request it over a 18 month period, in return
for common stock and warrants that we issue to Techrich. Once every 22 trading
days, we may request a draw of up to $10 million, subject to a maximum of 18
draws. The maximum amount we actually can draw down upon each request will be
determined by the volume-weighted average daily price of our common stock for
the 22 trading days prior to our request and the average trading volume for the
45 trading days prior to our request. Each draw down must be for at least
$250,000. At the end of a 22 day trading period following the drawdown request,
the final drawdown amount is determined based on the volume-weighted average
stock price during that 22 day period. We then use the formulas in the common
stock purchase agreement to determine the number of shares and warrants that we
will issue to Techrich in return for the money drawn down.
The per share dollar amount Techrich pays for our common stock for each
drawdown includes a 7% discount to the average daily market price of our common
stock for the 22 day period after our drawdown request, weighted by trading
volume. We will receive the amount of the drawdown less an escrow agent fee of
$1,500 and a 3% placement fee payable to the placement agent, Ladenburg Thalmann
& Co. Inc., which introduced Techrich to us. Ladenburg Thalmann is a
registered broker dealer. It is not obligated to purchase any of our shares,
but as an additional placement fee, we have issued to Ladenburg Thalmann
warrants to purchase 250,000 shares of our common stock at an exercise price of
$5.481. The common stock issuable upon the exercise of those warrants, as well
as shares issuable to Techrich upon a drawdown request, were included in a
registration statement that became effective on July 28, 2000. During 2000, the
Company issued two drawdown notices for a total of $7,000,000 and issued
2,136,616 shares of common stock and warrants to purchase 146,109 shares of
common stock at exercise prices ranging from $3.26676 to $4.4369. The Company
has available $93,000,000 under the equity line, which expires December 28,
2001.
On August 28, 2000, the Company acquired the net assets of T & B Designs,
Inc. (formerly known as Advanced Digital Designs, Inc.) ("ADD"), Advanced
Technologies, Inc. and 937 Plum Grove Road Partnership, in exchange for $3
million in cash and $3 million to be held in escrow and disbursed in accordance
with the terms and conditions of an Escrow Agreement. In addition, the
principals and certain employees of ADD that we hired, were issued options to
purchase 2,190,000 shares of common stock. The options, and underlying shares,
issued to the principals and employees that we hired, are included in the
registration statement of which this prospectus is a part.
On July 10, 2001 we acquired substantially all of the assets of Suncoast, a
Florida-based provider of private, interactive cable systems. We assumed certain
equipment leases and issued 766,058 shares of common stock in exchange for the
Suncoast assets. In addition, certain employees of Suncoast that we hired were
issued options to purchase 900,000 shares of common stock. The options, and
underlying shares, issued to the employees that we hired, are included in this
registration statement of which this prospectus is a part.
RISK FACTORS
Investment in our shares is risky and should be considered speculative. In
addition to the information containedstatements in this prospectus you should consider
carefullyand in the following riskdocuments incorporated herein by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other factors before investingwhich are, in shares offered under
this prospectus. We operate in a highly competitivesome cases, beyond our ability to control or predict and volatile industry. We
are faced with aggressive pricing by competitors; competition for necessary
parts, components and supplies; continually changing customer demands and rapid
technological developments; and risks that buyers may encounter difficulties in
obtaining governmental licenses or approvals, or in completing installation and
construction of infrastructure, necessary to use our products or to offer them
to end users. The following cautionary statements discuss certain important
factors that could cause actual results, levels of activity, performance or achievements to differbe materially different from the projectedany future results, contained in thelevels of activity, performance or achievements expressed or implied by forward-looking statements.
In some cases, you can identify forward-looking statements containedby terminology such as “may,” “will,” “should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” “continue” or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these identifying words. Our forward-looking statements may include, among other things, statements about:
● | our ability to continue as a going concern and our history of losses; |
● | our ability to obtain additional financing; |
● | our use of the net proceeds from this offering; |
● | our ability to prosecute, maintain or enforce our intellectual property rights; |
● | the accuracy of our estimates regarding expenses, future revenues and capital requirements; |
● | the implementation of our business model and strategic plans for our business and technology; |
● | the successful development and regulatory approval of our technologies and products; |
● | the potential markets for our products and our ability to serve those markets; |
● | the rate and degree of market acceptance of our products and any future products; |
● | our ability to retain key management personnel; and |
● | regulatory developments and our compliance with applicable laws. |
Forward-looking statements are inherently subject to risks and uncertainties, many of which we cannot predict with accuracy and some of which we might not even anticipate. Although we believe that the expectations reflected in this
prospectus.
4
Risks Related to Our Financial Results and/or Condition
We have had a limited operating history.
Since July 1996 we have operated without substantial sales or revenue. Our
limited financial performance may make it difficult for potential sources of
capital to evaluate the viability of our business to date and to assess its
future viability.
We have terminated one line of business that will result in reduced revenue.
We terminated contract-manufacturing services at the end of the second quarter
of 1999 as part of our current operating strategy. For years ending December 31,
1998 and 1999, contract manufacturing services conducted through our subsidiary
accounted for $5,637,574 and $2,134,563, respectively, in revenue. We will no
longer offer such services to third parties but will instead apply such
activities to develop and manufacture our own products.
Availability of funding under our equity line is affected by our share price and
general market conditions.
In April 2000 we entered into a common stock purchase agreement with Techrich
establishing an equity line whereby we may request draws of up to $100 million
over an 18-month period in return for common stock and warrants that we issue to
Techrich. The amount of securities to be issued under the equity line isforward-looking statements are based on a formula that is tied to the market price for our shares. The securities
markets have recently experienced significant price and volume fluctuations. The
market prices and volume of securities of technology and development-stage
companies have been especially volatile. Market volatility and conditions could
reduce the market price of our shares despite operating performance and the
market price of our shares could decrease significantly if our operating
performance falls below expectations.
Because the amount of securities to be issued under our equity line is based on
a formula that is tied to the market price of our shares just prior to the time
of a drawdown, issuance of some or all of the securities allowed under the
equity line could result in significant dilution of the per share value of our
shares held by current investors. The inverse relationship between the price and
amount of securities to be issued may have the following results:
. the lower the average trading price of our sharesupon reasonable assumptions at the time of a
drawdown, the greater the number of securities that would be issued, and
the greater the dilution caused by these securities;
. the perceived risk of dilution may cause Techrich or other shareholders
to sell their shares, which could contribute to the downward movement in
the stock price of Techrich's shares; and
. the significant downward pressure on the trading price of our shares
could encourage Techrich and other shareholders to engage in short
sales, which would further contribute to the downward spiraling price
decline of our shares.
If a large portion of the shares eligible for immediate resale after
registration were to be offered for public resale within a short period of time,
the current public market would likely be unable to absorb such shares. This
could result in a significant reduction in current market prices. Theremade, we can begive no assurance that investorssuch expectations will be ableachieved. Actual events or results may differ materially. Readers are cautioned not to resell shares at the price they paid
for the shares or at any price.
Our agreement with Techrich restricts us from raising investment capital during
the term of the common stock purchase agreement except through that agreement,
unless otherwise agreed to in writing.
If we need capital but are unable to drawdown under the common stock purchase
agreement for any reason, we will need to negotiate with Techrich to lift those
restrictions so we can obtain the capital from other sources. Our common stock
purchase agreement with Techrich also limits our ability to sell our securities
for cash at a discount to the market price for 18 months from the effective date
of the registration statement filed in connection with establishment of the
equity line, unless otherwise agreed to in writing.
5
Risks Related to Our Strategy
We may be unable to identify or acquire additional technologies or products to
diversify our product offering.
We expect to avoid reliance upon any given product through acquisition and/or
development of additional technologies and products. However, we may be unable
to identify or acquire technologies or products. In that case, we may have to
rely upon our own resources to develop such technologies and products
internally. We may not have sufficient resources to do this. In addition,
acquisitions involve a number of special risks, such as diversion of
management's attention and financing issues, which may have a negative impact on
operations and financial performance.
We may not be able to efficiently integrate any acquired technologies, products
or businesses.
We expect to acquire technologies, products and other businesses to compliment
our operations. There can be no assurance that we will be able to integrate the
operations of any other business successfully. Acquisitions we do undertake will
subject us to a number of risks, including the following:
. inability to institute the necessary systems and procedures, such as
accounting and financial reporting systems;
. failure to retain key personnel; and
. assumption of unanticipated legal liabilities and other problems.
In addition, we may acquire technologies or products that prove incompatible to
other products following further development.
Even if we successfully integrate acquired technologies, products or businesses,
we may be unable to effectively manage growth.
We seek to become profitable by expanding sales of Orasis(R), the OraLynx(TM)
set-top box and any new products that we may develop or acquire. To manage
growth, we may be required to:
. improve existing and implement new operational, production and personnel
systems;
. hire, train and manage additional qualified personnel; and
. establish relationships with additional suppliers and strategic partners
while maintaining existing relationships.
The existing purchase orders received from international companies and the set-
top box agreement subjects us to risks associated with international operations.
As we begin shipping under the purchase orders and set-top box agreement, we
risk exposure to international risks, including:
. greater difficulty in accounts receivable collection and longer
collection periods;
. unexpected changes in regulatory requirements;
. reduced protection of intellectual property rights;
. potentially adverse tax consequences; and
. political instability.
Risks Related to Development, Production and Marketing of Our Products
Product development involves substantial expense and resource allocation that
may exceed our capabilities.
We incurred substantial expense in developing the Orasis(R) computer. We expect
to continue to develop enhancements and accessory equipment to meet customer and
market demands. The OraLynx(TM) set-top box is in the final development stage.
Although we anticipate further expense associated with the final stage of
development, it will not be substantial. However, delays in development arising
from insufficient cash or personnel resources will hinder our ability to bring
these products to market before competitors introduce comparable products. In
that case, we will
6
miss the opportunity to capitalize on the technological advances, which we
believe such products may offer.
We depend on outside sources for components and may be harmed by unavailability
of components, excessive prices for components or unexpected delays in component
deliveries.
The Orasis(R) and OraLynx(TM) set-top box use or will use various component
parts, such as PCBs, microchips and fabricated metal parts. We must obtain these
components from manufacturers and third-party vendors. Our reliance on those
manufacturers and vendors, as well as industry component supply, creates many
risks including the following:
. the possibility of a shortage of components;
. increases in component costs;
. variable component quality;
. reduced control over delivery schedules; and
. potential manufacturer/vendor reluctance to extend credit to us.
If there is a shortage of component parts or if the cost of these parts
substantially increases, our operations and our success in the marketplace could
be materially and adversely affected.
Errors or defects in our products could result in customer refund or product
liability claims.
Because our products are complex, they could contain errors or bugs that can be
detected at any point in a product's life cycle. While we continually test our
products for errors and will work with customers to identify and correct bugs,
errors may be found in the future. Although many of these errors may prove to be
immaterial, any of these errors could be significant. Detection of any
significant errors may result in:
. loss of or delay in market acceptance and sales of our products;
. diversion of development resources;
. injury to our reputation; or
. increased maintenance and warranty costs.
Errors or defects could harm our business and future operating results.
Moreover, because our products will be used in critical computing functions, we
may receive significant liability claims if our products do not work properly.
Our agreements with customers typically do and will contain provisions intended
to limit our exposure to product liability claims. However, these provisions may
not preclude all potential claims. Liability claims could require us to spend
significant time, money and effort in litigation. They also may result in
substantial damage awards. Any such claim, whether or not successful, could
materially damage our reputation and results of operation.
We will be unable to develop, produce and market our products without qualified
professionals and seasoned management.
Our success depends in large part on our ability to recruit and retain
professionals, key management and operating personnel. We need to complete
development of the OraLynx(TM) set-top box and coordinate production of
Orasis(R) computers and the OraLynx(TM) set-top box. We also need to develop
marketing channels to increase market awareness and sales of our products.
Qualified professionals, management and operating personnel are essential for
these purposes. Such individuals are in great demand and are likely to remain a
limited resource in the foreseeable future. Competition for them is intense and
turnover is high. If we cannot attract and retain needed personnel, we will not
succeed.
We believe that our future success will depend on our ability to retain the
services of our executive officers. These officers have developed industry
relationships that are critical to our growth and development. They also will be
essential in dealing with the significant challenges that we expect will arise
from anticipated growth in our operations.
We have an ongoing need to expand management personnel and support staff. The
loss of one or more members of management or key employees, or the inability to
hire additional personnel as needed, could have a material adverse effect on our
operations.
7
Risks Related to Competition within Our Industry
None of our products have achieved widespread distribution or customer
acceptance.
Although the Orasis(R) computer has passed the development stage, we have not
established a market for it. The Orasis(R) is a solution oriented, pen-based,
mobile computer system, which has been produced and marketed only on a limited
basis. As the market and applications for the Orasis(R) increase, we anticipate
its market will increase; however, there is no assurance that this will happen.
The OraLynx(TM) set-top box is in the final stage of development. We believe we
will successfully develop the OraLynx(TM) set-top box that will conform to
specifications under the set-top box agreement that will address a broad market
demand. There can be no assurance that we will successfully complete develop of
the OraLynx(TM) set-top box or that a market demand will exist. In addition, if
a market demand exists, it may be met with alternative products offered by
competitors or with pricing that we cannot match.
Competition in our industry is intense and we may not be able to compete
successfully due to our limited resources.
Our industry is highly competitive and dominated by competitors with substantial
resources. Continuous improvement in product pricing and performance is the key
to future success. At all levels of competition, pricing has become very
aggressive. We expect pricing pressure to continue to be intense. Many of our
competitors are larger and have significantly greater financial, technical,
marketing and manufacturing resources. They also have broader product lines,
greater brand name recognition and larger existing customer bases. As a result,
our competitors may be better able to finance acquisitions or internal growth or
respond to technological changes or customer needs.
Current and potential competitors also have established or may establish
cooperative relationships among themselves or with third parties to increase
their ability to address customer needs. There can be no assurance that we will
be able to compete successfully in developing, manufacturing or marketing our
products. An inability to do so would adversely affect our business, financial
condition and market price of our shares.
Our industry is subject to rapid technological change and we may not be able to
keep up.
Rapid technological change, frequent new product introductions and enhancements,
uncertain product life cycles and changes in customer demands and evolving
industry standards, characterize the computer industry. Our products could
become obsolete if products based on new technologies are introduced or if new
industry standards emerge.
Computer equipment is inherently complex. As a result, we cannot accurately
estimate the life cycles of our products. New products and product enhancements
can require long development and testing periods, which requires retention of
increasingly scarce technically competent personnel. Significant delays in new
product releases or significant problems in installing or implementing new
products can seriously damage our business. In the past, we have experienced
delays in scheduled product introductions and cannot be certain that we will
avoid similar delays in the future. We must produce products that are
technologically advanced and comparable to and competitive with those made by
others. Otherwise, our products may become obsolete or we will fail to achieve
market acceptance.
Our future success depends on our ability to enhance existing products, develop
and introduce new products, satisfy customer requirements and achieve market
acceptance. We cannot be certain that we will successfully identify new product
opportunities and develop and bring new products to market in a timely and cost-
effective manner.
We may sell fewer products if other vendors' products are no longer compatible
with ours or other vendors bundle their products with those of our competitors
and sell them at lower prices.
Our ability to sell our products depends in part on the compatibility of our
products with other vendors' software and hardware products. For example,
Orasis(R) will not sell if it cannot run software, or access resources such as
Internet or telephone services provided by others. The same is true for the set-
top box. Other vendors may change their products so that they will no longer be
compatible with our products. These vendors also may decide to bundle their
products with products of our competitors for promotional purposes and to
discount the sales price of the bundled products. If this were to occur, our
business and future operating results could suffer.
We have limited intellectual property protection and our competitors may be able
to appropriate our technology or
8
assert infringement claims.
Our products are differentiated from those of our competitors by our internally
developed technology that is incorporated into our products. If we fail to
protect our intellectual property, others may appropriate our technology and
sell products with features similar to ours. This could reduce demand for our
products. We rely on a combination of trade secrets, copyright and trademark
laws, non-disclosure and other contractual provisions with employees and third
parties, and technical measures to protect our proprietary rights in our
products. There can be no assurance that these protections will be adequate or
that our competitors will not independently develop technologies that are
substantially equivalent or superior to ours.
We believe that our products do not infringe upon the proprietary rights of
third parties. However, there can be no assurance that third parties will not
assert infringement claims against us in the future or that a license or similar
agreement will be available on reasonable terms in the event of an unfavorable
ruling on any such claim. In addition, any such claim may require us to commit
substantial time and effort, and to incur substantial litigation expenses, and
may subject us to significant liabilities that could have a material adverse
effect on our financial condition and results of operations.
Our business and operations may be affected by government regulations.
Our products may be subject to various federal, state and other government
regulations. For example, we are required to obtain CE approval and
certification for the set-top box under the set-top box agreement. If we do not
receive such approval and certification within thirty days of application,
production will be postponed. In addition, if we do not receive such approval
and certification within sixty days of application, the buyer may terminate the
agreement. The Company may terminate the agreement if permits to install fiber
optic and other infrastructure equipment are not issued to the buyer. Even if
such permits are issued, delays in issuance will delay set-top box orders and
shipments. Consequently, government regulations may interfere with our business
plans and could have an adverse effect on our ability to develop and market our
products.
Risks Relating to Our Shares
It is likely that our shares will be subject to substantial price and volume
fluctuations due to a number of factors, many of which will be beyond our
control.
The securities markets have recently experienced significant price and volume
fluctuations. The market prices and volume of securities of technology and
development-stage companies have been especially volatile. Market volatility and
other market conditions could reduce the market price for our shares despite
operating performance. In addition, if our operating performance falls below
expectations the market price of our shares could decrease significantly. You
may be unable to resell shares at or above the registration price. In the past,
companies that have experienced volatility in the market price of their stock
have been the subject of securities class action litigation. If we were the
subject of such litigation we could experience substantial litigation costs and
diversion of management's attention and resources.
We have not paid any dividends and have no expectation of paying dividends in
the foreseeable future.
We have not declared, paid, or distributed any cash dividends on our shares in
the past, nor are any cash dividends contemplated in the foreseeable future.
There is no assurance that our operations will generate any profits from which
to pay cash dividends. Even if profits are generated through operations in the
future, our present intent is to retain any such profits for acquisitions,
product development, production and marketing, and for general working capital
requirements.
Our shares are not widely traded.
There is only a limited market for our shares. If a large portion of the shares
eligible for immediate resale after registration were to be offered for public
resale within a short period of time, the current public market would likely be
unable to absorb such shares. This could result in a significant reduction in
current market prices. There can be no assurance that investors will be able to
resell shares at the price they paid for the shares or at any price.
Our shares are subject to special trading rules relating to "penny stocks" which
restrict trading.
9
Our shares are covered by an SEC rule that imposes additional sales practice
requirements on broker-dealers who sell "penny stock" to persons other than
certain established customers. For transactions covered by the rule, the
broker-dealer must obtain sufficient information from the customer to make an
appropriate suitability determination, provide the customer with a written
statement setting forth the basis of the determination and obtain a signed copy
of the suitability statement from the customer. The rule may affect the ability
of broker-dealers to sell our shares and also may affect your ability to sell
shares in the secondary market.
We have broad discretion in how we use any proceeds of this registration, and we
may not use these proceeds effectively.
We could spend any proceeds received from the sale of the shares underlying the
warrants and options that are included in this registration in ways that you may
not agree or that do not yield a favorable return. Our primary purpose for
conducting this registration is to register the shares issued by the Company in
connection with the acquisition of the net assets of Suncoast Automation, Inc.
FORWARD LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve
substantial risks and uncertainties. Any statement that is not a statement of
historical fact constitutes a forward-looking statement. You can identify these
statements by forward-looking words such as "may", "will", "intend",
"believe", "anticipate", "estimate", "expect", "project" and similar words.
You should read statements that contain these words carefully because they
discuss our future expectations, contain projections of our future results of
operation and of our financial condition or state other forward looking
information. This prospectus also includes third party estimates regarding the
size and growth of markets and mobile computer equipment usage in general.
You should not place undue reliance on these forward-looking statements. The sections captioned "Risk Factors" and "The Company" as well asWe have no duty to update or revise any cautionary language inforward-looking statements after the date of this prospectus provide examples of risks, uncertainties
and events that may cause ouror to conform them to actual results, to differ materially from our
expectations.
new information, future events or otherwise.
Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of these forward-looking statements.
You should read the risk factors and the other cautionary statements made in this prospectus as being applicable to all related forward-looking statements wherever they appear in this prospectus. If one or more of these factors materialize, or if any underlying assumptions prove incorrect, our actual results, performance or achievements may vary materially from any future results, performance or achievements expressed or implied by these forward-looking statements. We are underundertake no dutyobligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus or incorporated by reference. This summary does not contain all of the forward lookinginformation you should consider before buying shares of our common stock, preferred stock, warrants, or units or any combination of these securities. You should read the entire prospectus carefully, especially the risks of investing in our securities that we describe under “Risk Factors” and our consolidated financial statements afterappearing in our annual and periodic reports incorporated in this prospectus by reference, before deciding to invest in our securities. References in this prospectus to “we,” “us,” “our,” “GeoVax,” and “Company” refer to GeoVax Labs, Inc. and its subsidiaries. You should read both this prospectus and any prospectus supplement together with additional information described below under the heading “Where You Can Find More Information.”
Company Overview
GeoVax Labs, Inc. (“GeoVax” or the “Company”) is a clinical-stage biotechnology company developing immunotherapies and vaccines against infectious diseases and cancers using a novel vector vaccine platform (Modified Vaccinia Ankara-Virus Like Particle or “GV-MVA-VLP™”).
In January 2020, we announced the start of our program to develop a vaccine for prevention of novel coronavirus (COVID-19) infection. That effort has resulted in four COVID-19 vaccine candidates. Three COVID-19 vaccine candidates have been designed and constructed and one lead candidate has entered animal challenge testing.
Our other current development programs include preventive and therapeutic vaccines against Human Immunodeficiency Virus (HIV); preventive vaccines against hemorrhagic fever viruses (Ebola, Sudan, Marburg, and Lassa fever), Zika virus and malaria; and immunotherapies for solid tumor cancers.
For our infectious disease vaccines, our recombinant MVA vector expresses target proteins on highly immunogenic virus-like particles (“VLPs”) in the person being vaccinated, with the intended result of producing durable immune responses with the safety characteristics of the replication deficient MVA vector and cost-effective manufacturing.
In cancer immunotherapy, we believe that stimulating the immune system to treat or prevent cancers is a compelling concept and that the opportunity for immune-activating technologies is promising, especially in light of advancements such as checkpoint inhibitors leading the way in oncology. Despite drug approvals in limited indications and promising results in clinical trials, there remains a significant need and opportunity for further advancements. We believe our GV-MVA-VLP™ platform is well-suited for delivery of tumor-associated antigens and we plan to pursue development of our platform in this space.
Our most advanced vaccine program is focused on prevention of the clade B subtype of HIV prevalent in the regions of the Americas, Western Europe, Japan and Australia; our HIV vaccine candidate, GOVX-B11, will be included in an upcoming clinical trial (HVTN 132) managed by the HIV Vaccine Clinical Trials Network (HVTN) with support from the National Institute of Allergy and Infectious Diseases (NIAID) of the National Institutes of Health (NIH), which we expect will begin in 2021. Additionally, during August 2020 a consortium led by researchers at the University of California, San Francisco (UCSF) began a clinical trial using our vaccine as part of a combinational therapy to induce remission in HIV-positive individuals. Through the efforts of our collaborator, American Gene Technologies International, Inc. (AGT), we expect that our HIV vaccine will also enter clinical trials during 2021 in combination with AGT’s gene therapy technology to seek a functional cure for HIV.
Our other vaccine and immunotherapy programs are at various other stages of development as described below.
Recent Developments
On January 11, 2021, we announced today that the National Institute of Allergy and Infectious Diseases (NIAID), part of the National Institutes of Health (NIH), had awarded the Company a Small Business Innovative Research (SBIR) grant in support of its development of a vaccine against SARS-CoV-2, the virus that causes COVID-19.
The Phase 1 grant, titled, “Preclinical Development of GV-MVA-VLP Vaccines Against COVID-19,” will support the ongoing design, construction and preclinical testing of GeoVax’s vaccine candidates in preparation for human clinical trials. The efficacy testing will be performed in collaboration with the University of Texas Medical Branch (UTMB).
Our Differentiated Vaccine and Immunotherapy Platform
Vaccines typically contain agents (antigens) that resemble disease-causing microorganisms. Traditional vaccines are often made from weakened or killed forms of the virus or from its surface proteins. Many newer vaccines use recombinant DNA (deoxyribonucleic acid) technology to generate vaccine antigens in bacteria or cultured cells from specific portions of the DNA sequence of the target pathogen. The generated antigens are then purified and formulated for use in a vaccine. We believe the most successful of these purified antigens have been non-infectious virus-like particles (VLPs) as exemplified by vaccines for hepatitis B (Merck's Recombivax® and GSK's Engerix®) and Papilloma viruses (GSK's Cervarix®, and Merck's Gardasil®). Our approach uses recombinant DNA and/or recombinant MVA to produce VLPs in the person being vaccinated (in vivo) reducing complexity and costs of manufacturing. In human clinical trials of our HIV vaccines, we believe we have demonstrated that our VLPs, expressed from within the cells of the person being vaccinated, can be safe, yet elicit both strong and durable humoral and cellular immune response.
VLPs can cause the body's immune system to recognize and kill targeted viruses to prevent an infection. VLPs can also train the immune system to recognize and kill virus-infected cells to control infection and reduce the length and severity of disease. One of the biggest challenges with VLP-based vaccines is to design the vaccines in such a way that the VLPs will be recognized by the immune system in the same way as the authentic virus would be. We design our vaccines such that, when VLPs for enveloped viruses like HIV, Ebola, Marburg or Lassa fever are produced in vivo (in the cells of the recipient), they include not only the protein antigens, but also an envelope consisting of membranes from the vaccinated individual's cells. In this way, they are highly similar to the virus generated in a person's body during a natural infection. VLPs produced in vitro (in a pharmaceutical plant), by contrast, have no envelope; or, envelopes from the cultured cells (typically hamster or insect cells) used to produce them. We believe our technology therefore provides distinct advantages by producing VLPs that more closely resemble the authentic viruses. We believe this feature of our immunogens allows the body's immune system to more readily recognize the virus. By producing VLPs in vivo, we believe we also avoid potential purification issues associated with in vitro production of VLPs.
Examples of VLPs
|
|
Ebola Virus VLPs | HIV VLPs |
Figure 1. Electron micrographs showing examples of VLPs produced by GeoVax vaccines in human cells. Note that the Ebola virus VLPs on the left self-assemble into the rod-like shape of the actual Ebola virus, while the HIV VLPs shown on the right take on the spherical shape of the actual HIV virus. While below the resolution of these micrographs, both types of VLPs display what we believe to be the native form of their respective viral envelope glycoproteins which we believe is key to generating an effective immune humoral response.
Strategy
Our corporate strategy is to advance, protect and exploit our differentiated vaccine/immunotherapy platform leading to the successful development of preventive and therapeutic vaccines against infectious diseases and various cancers. With our design and development capabilities, we are progressing and validating an array of cancer and infectious disease immunotherapy and vaccine product candidates. Our goal is to advance products through to human clinical testing, and to seek partnership or licensing arrangements for achieving regulatory approval and commercialization. We also leverage third party resources through collaborations and partnerships for preclinical and clinical testing with multiple government, academic and corporate entities.
We selected MVA for use as the live viral component of our vaccines because of its well-established safety record and because of the ability of this vector to carry sufficient viral sequences to produce VLPs. MVA was originally developed as a safer smallpox vaccine for use in immune-compromised individuals. It was developed by attenuating the standard smallpox vaccine by passaging it (over 500 passages) in chicken embryos or chicken embryo fibroblasts, resulting in a virus with limited ability to replicate in human cells (thus safe) but with high replication capability in avian cells (thus cost effective for manufacturing). The deletions also resulted in the loss of immune evasion genes which assist the spread of wild type smallpox infections, even in the presence of human immune responses.
Our Product Development Pipeline
The table below summarizes the status of our product development programs as of the date of this prospectus orprospectus.
Product Area / Indication | Stage of Development | Collaborators / Sponsors |
Cancer | ||
HPV-related cancers | Preclinical | Emory, Virometix |
MUC1-expressing tumors | Preclinical completed | Univ. of Pittsburgh, ViaMune |
Cyclin B1-expressing tumors | Preclinical | |
Checkpoint inhibitors | Preclinical | Leidos |
Infectious Diseases | ||
HIV (preventive) | Phase 2a completed | NIH, HVTN, Emory |
HIV (immunotherapy) | Phase 1 | AGT, UCSF |
Zika | Preclinical completed | NIH, CDC |
Malaria | Preclinical | Leidos, Burnet Institute |
Ebola, Marburg, Sudan | Preclinical completed | NIH, USAMRIID, UTMB |
Lassa Fever | Preclinical | NIH, DoD, Scripps, IHV, UTMB, USNRL, Geneva Foundation |
Coronavirus (COVID-19) | Preclinical | UTMB |
We are seeking to conform
these statementsdevelop a broad product pipeline based on our GV-MVA-VLP™ platform and have been pleased with the results, particularly considering the challenges we faced prior to actual results orSeptember 2020 in obtaining sufficient capital and the related relatively small number of scientifically skilled employees we employ. These constraints have made it necessary to changesset priorities as to our primary focuses, and those will change as opportunities, resources, and other circumstances dictate. During 2019, for example, in addition to working with our collaborators/sponsors, we chose to focus a portion of our management time and budget in the area of immuno-oncology. More recently, the emergence of novel coronavirus (COVID-19) led us to decide to devote our management time and resources, and our platform, to address this epidemic. At times, some of our development programs are paused as we shift our focus due to our limited resources.
Principal Risks
Any investment in our expectations, exceptsecurities involves a high degree of risk. You should consider carefully the risks described below, and the more detailed information at “Risk Factors” on page 8, together with respectall of the other information contained in or incorporated by reference into this prospectus and the applicable prospectus supplement, before you decide whether to material developments relatedpurchase our securities:
● | We have a history of operating losses, and we expect losses to continue for the foreseeable future; | |
● | Our business will require continued funding. If we do not receive adequate funding, we will not be able to continue our operations; | |
● | Our products are still being developed, are unproven, and may not be successful; | |
● | We depend upon key personnel who may terminate their employment with us at any time. If we were to lose the services of any of these individuals, our business and operations may be adversely affected; | |
● | Regulatory and legal uncertainties could result in significant costs or otherwise harm our business; | |
● | We face intense competition and rapid technological change that could result in products that are superior to the products we are developing; and our product candidates are based on new medical technology and, consequently, are inherently risky; | |
● | Concerns about the safety and efficacy of our products could limit our future success; | |
● | We may experience delays in our clinical trials that could adversely affect our financial results and our commercial prospects; | |
● | Failure to obtain timely regulatory approvals required to exploit the commercial potential of our products could increase our future development costs or impair our future sales; | |
● | Changes in healthcare law and implementing regulations, as well as changes in healthcare policy, may impact our business in ways that we cannot currently predict, and may have a significant adverse effect on our business and results of operations; | |
● | We could lose our license rights to our important intellectual property if we do not fulfill our contractual obligations to our licensors; | |
● | Other parties may claim that we infringe their intellectual property or proprietary rights, which could cause us to incur significant expenses or prevent us from selling products; | |
● | The market price of our common stock is highly volatile; | |
● | Our common stock does not have a vigorous trading market and investors may not be able to sell their securities when desired; and | |
● | We will need additional capital, and the sale of additional shares or other equity securities could result in additional dilution to our stockholders. |
Corporate Information
We are incorporated under the laws of the State of Delaware. Our principal corporate offices are located at 1900 Lake Park Drive, Suite 380, Smyrna, Georgia 30080 (metropolitan Atlanta). Our telephone number is (678) 384-7220. The address of our website is www.geovax.com. Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and all amendments to previously disclosed
information.
those reports, are available to you free of charge through the “Investors” section of our website as soon as reasonably practicable after such materials have been electronically filed with or furnished to the Securities and Exchange Commission (“SEC”). Information contained on our website does not form a part of this prospectus.
Risk Factors
Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement, and under similar headings in our Annual Report on Form 10-K for the year ended December 31, 2019, as updated by our annual, quarterly and other reports and documents that are incorporated by reference into this prospectus, before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of your investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations.
USE OF PROCEEDS
All
Unless we state otherwise in the accompanying prospectus supplement, we intend to use the net proceeds from the sale of the common stock coveredsecurities offered by this prospectus will be received byfor general corporate purposes. General corporate purposes may include additions to working capital, research and development, financing of capital expenditures, and future acquisitions, collaborations, and strategic investment opportunities. Pending the selling shareholders who offer and sell their
shares. application of net proceeds, we expect to invest the net proceeds in interest-bearing securities.
We will not receive any proceeds from the sale of the common stock byproceeds in the event the selling shareholders other than from the possible exercise of warrants to
purchase 230,000 shares ofstockholders sell common stock at prices ranging between $1.03 to $3.50
per share and the possible exercise of options to purchase 5,845,000 shares of
common stock at prices ranging from $0.7812 to $3.875 per share. Any proceeds
received from the exercise of warrants and options will be used for general
corporate purposes.
10
SELLING SHAREHOLDERS
stock.
DESCRIPTION OF SECURITIES
Capital Stock
The selling shareholders' shares were issued in accordance with private
placements. The shares are being registered to remove their restricted status
under federal securities law. Although the selling shareholders have not advised
us that they currently intend to sell shares pursuant to this registration, they
may choose to sell all or a portion of the shares from time to time in the over-
the-counter market or otherwise at prices and terms then prevailing or at prices
related to the current market price, or negotiated transactions. None of the
selling shareholders are or have been affiliates of the Company or hold more
than 5% of the outstanding shares.
• | the General Corporation Law of the State of Delaware, or the “DGCL”, as it may be amended from time to time; | |
• | our certificate of incorporation, as it may be amended or restated from time to time; and | |
• | our bylaws, as they may be amended or restated from time to time. |
General
Our authorized capital stock currently consists of 610,000,000 shares, which are divided into two classes consisting of 600,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share.
As of January 25, 2021, there were 4,395,458 shares of common stock outstanding and 100 shares of Series B Convertible Preferred Stock outstanding (convertible into a de minimis number of shares of common stock). As of January 25, 2021, there were outstanding warrants to purchase:
● | 2,143,300 shares at an exercise price of $5.00 per share issued in our underwritten public offering in September 2020 (the “September Warrants”); |
● | 128,000 shares at an exercise price of $5.50 per share granted to the underwriters who underwrote our September 2020 public offering (“Underwriters Warrants”); |
● | 300,001 shares at an exercise price of $5.00 per share that were granted to certain Management Creditors in September 2020 (“Management Creditors Warrants”); |
● | 120,000 shares at an exercise price of $5.00 per share issued to investors who provided us with bridge financing in June 2020 (“June 2020 Warrants”); |
● | 303,668 shares at an exercise price of $5.00 per share issued to investors who provided us with bridge financing in June 2020 in connection with the conversion of such bridge financing into our equity securities (“Debenture Conversion Warrants”); and |
Certain provisions of the September Warrants, Underwriter Warrants, Management Creditors Warrants, June 2020 Warrants, and Debenture Conversion Warrants (collectively, the “Warrants”) are set forth below but are only a summary and are qualified in their entirety by the relevant provisions of the form of such Warrant, each of which are filed as exhibits to the registration statement of which this prospectus is availablea part.
An additional 980,000 shares of our common stock are reserved for issuance under our 2020 Stock Incentive Plan. The issuance of 750,000 of those shares is contingent upon request.
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Common Stock
The
Our common Stock is listed and traded on the Nasdaq Capital Market under the symbol “GOVX.” Holders of our common stock are entitled to one vote for each share held in the election of directors and in all other matters to be voted on by the stockholders. There is no cumulative voting in the election of directors. Holders of common stock are entitled to receive dividends as may be declared from time to time by our Board of Directors out of funds legally available therefor, and subject to the rights of holders of our Series B Preferred Stock. In the event of liquidation, dissolution or winding up of the Company, holders of common stock are to share in all assets remaining after the payment of liabilities, and satisfaction of the liquidation preference of our outstanding Series B Preferred Stock. Holders of common stock have no pre-emptive or conversion rights and are not subject to further calls or assessments. There are no redemption or sinking fund provisions applicable to the common stock. The rights of the holders of the common stock are subject to any rights that may be fixed in the future for holders of preferred stock. All of the outstanding shares of common stock are fully paid and non-assessable.
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, NY 11219, telephone (718) 921-8200.
The September Warrants
Overview. The September 2020 warrants are listed and traded on the Nasdaq Capital Market under the symbol “GOVXW”.
The September Warrants were issued in September 2020 pursuant to a Warrant Agent Agreement dated as of September 24, 2020 (the “Warrant Agent Agreement”), between us and American Stock Transfer & Trust Company, LLC, as the warrant agent (the “Warrant Agent”). Certain provisions of the September Warrants are set forth herein but are only a summary and are qualified in their entirety by the relevant provisions of the Warrant Agent Agreement which is filed as an exhibit to the registration statement of which this prospectus is a part.
The September Warrants entitle the registered holder to purchase one share of our common stock at a price equal to $5.00 per share subject to adjustment as discussed below, immediately following the issuance of such warrant and terminating at 5:00 p.m., New York City time, five years from the date of issuance on September 29, 2020.
Exercisability. The September Warrants are exercisable at any time after their original issuance and at any time up to the date that is five (5) years after their original issuance. The September Warrants may be exercised by delivering a duly executed exercise notice on or prior to the expiration date at the offices of the Warrant Agent, accompanied by full payment of the exercise price, by certified or official bank check payable to the Warrant Agent, for the number of warrants being exercised. Under the terms of the Warrant Agreement, we must use our best efforts to maintain the effectiveness of the related registration statement and current prospectus relating to common stock issuable upon exercise of the September Warrants until the expiration of the warrants. If we fail to maintain the effectiveness of the registration statement and current released prospectus relating to the common stock issuable upon exercise of the September Warrants, the holders shall have the right to exercise them solely via a cashless exercise feature provided for in the September Warrants, until such time as there is an effective registration statement and current prospectus.
Exercise Limitation. A holder may not exercise any portion of a September Warrant to the extent that the holder, together with its affiliates and any other person or entity acting as a group, would own more than 4.99% of the outstanding common stock after exercise, as such percentage ownership is determined in accordance with the terms of the warrant, except that upon at least 61 days’ prior notice from the holder to us, the holder may waive such limitation up to a percentage not in excess of 9.99%.
Exercise Price. The exercise price per whole share of common stock purchasable upon exercise of the September Warrants is $5.00 per share. The exercise price is subject to adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting our common stock and also upon any distributions of assets, including cash, stock or other property to our stockholders. However, the September Warrants will not be adjusted for issuances of common stock at prices below its exercise price.
Fractional Shares. No fractional shares of common stock will be issued upon exercise of the September Warrants. If, upon exercise of the September Warrant, a holder would be entitled to receive a fractional interest in a share, we will, upon exercise, pay a cash adjustment in respect of such fraction in an amount equal to such fraction multiplied by the exercise price. If multiple September Warrants are exercised by the holder at the same time, we shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price.
Transferability. Subject to applicable laws, the September Warrants may be offered for sale, sold, transferred or assigned without our consent.
Exchange Listing. Our September Warrants are listed on The Nasdaq Capital Market under the symbol “GOVXW.”
Warrant Agent; Global Certificate. The September Warrants were issued in registered form under the Warrant Agent Agreement. The September Warrants are represented only by one or more global warrants deposited with the Warrant Agent, as custodian on behalf of The Depository Trust Company (DTC) and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental Transactions. In the event of a fundamental transaction, as described in the September Warrants and generally including any reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock, upon any subsequent exercise of the September Warrants, the holders will be entitled to receive the kind and amount of securities, cash or other property that the holders would have received had they exercised the September Warrants immediately prior to such fundamental transaction.
Rights as a Stockholder. The holders of September Warrants do not have the rights or privileges of holders of common stock or any voting rights until they exercise their warrants and receive shares of common stock. After the issuance of shares of common stock upon exercise of the September Warrants, each holder will be entitled to one vote for each share held of record on all matters submitted to a votebe voted on by stockholders.
Governing Law. The September Warrants and the Warrant Agent Agreement are governed by New York law.
The Underwriters Warrants
The underwriters who conducted our public offering in September 2020 received warrants granted to them to purchase 128,000 shares of common (equal to five percent (5%) of the shareholders. Subject to
preferences that may be applicable to any then outstanding preferred stock,
holderstotal number of shares of common stock sold in that offering) at an exercise price equal to $5.50 (110% of the public offering price in that offering), as a portion of the underwriting compensation payable to the Representative in connection with this offering. The Underwriters Warrants will be non-exercisable until March 29, 2021 and will expire three years thereafter.
The Management CreditorsWarrants
On September 29, 2020, concurrently with the closing of our public offering, we issued warrants to purchase 300,001 shares of common stock to our Management Creditors on terms which are substantially the same as the September Warrants.
June 2020 Warrants
The June 2020 Warrants were issued, together with convertible debentures, pursuant to a Securities Purchase Agreement dated June 26, 2020, which provided the Company with bridge financing. The June 2020 Warrants are five-year warrants to purchase 120,000 shares of the Company’s common stock at an exercise price of $5.00 per share, subject to adjustment.
The June 2020 Warrants were exercisable immediately and expire on June 26, 2025. The June 2020 Warrants may be called by us if our common stock trades at $25.00 for ten straight trading days, subject to certain conditions.
The June 2020 Warrants contain anti-dilution and price adjustment provisions, which may, under certain circumstances, reduce the exercise price on several future dates, but the number of shares subject to the June 2020 Warrants will not change. There is a provision which reduces the exercise price to match if we sell or grant certain options to purchase, including rights to reprice, our Common Stock or Common Stock Equivalents (as defined) at a price lower than the exercise price of the warrants, or if we announce plans to do so.
Upon exercise of the warrants, the warrant holders will be entitled to receive ratablyany securities or rights to acquire securities or property granted or issued by us pro rata to the holders of our common stock to the same extent as if such dividends as may be
declared byholders had then exercised the Board of Directors out of funds legally available.warrants. In the event of a liquidation, dissolutionfundamental transaction, such as a merger, consolidation, sale of substantially all assets and similar reorganizations or winding up ofrecapitalizations, the company,warrant holders of the
common stock arewill be entitled to share ratably in all assets remaining after paymentreceive, upon exercise of liabilities andtheir warrants, any securities or other consideration received by the liquidation preference of any then outstanding preferred
stock. Holdersholders of common stock havepursuant to the fundamental transaction. Under certain circumstances, after a fundamental transaction, holders may be entitled to receive a cash payment equal to the value of the warrants, computed as provided in those warrants. Any successor to us or surviving entity shall assume the obligations under the warrants.
The warrant holders must surrender payment in cash of the aggregate exercise price of the shares being acquired upon exercise of the warrant. If there is no right to convert theireffective registration statement registering, there are insufficient authorized shares of our common stock into
any other securities and haveavailable, or there is no cumulative voting rights. There are no
redemptioncurrent prospectus available for the resale of the shares issuable upon exercise of the warrant, then the warrant may be exercised on a “net” or sinking fund provisions applicable to the common stock. All
outstanding“cashless” basis. No fractional shares of common stock will be issued in connection with the exercise of the warrant. In lieu of fractional shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price.
The June 2020 Warrants contain conversion limitations providing that a holder thereof may not convert the warrant to the extent (but only to the extent) that, if after giving effect to such conversion, the holder or any of its affiliates would beneficially own in excess of 4.99% of the outstanding shares of our common stock immediately after giving effect to such conversion or exercise. A holder may increase or decrease its beneficial ownership limitation upon notice to the Company provided that in no event such limitation exceeds 9.99%, and that any increase shall not be effective until the 61st day after such notice.
The Debenture ConversionWarrants
On September 29, 2020, concurrently with the closing of our public offering, we issued warrants to purchase 303,668 shares of common stock to the investors who provided us with bridge financing in June 2020 on terms which are fully paid and non-assessable.substantially the same as the September Warrants.
Series B Convertible Preferred Stock
We were authorized to issue up to 1,650 shares of our Series B Preferred Stock, which we refer to as the “Series B Preferred Stock.” As of January 25, 2021, 100 shares of our Series B Preferred Stock, $0.01 par value, were outstanding.
The Series B Preferred Stock is convertible at the option of the holder at any time into shares of common stock at a conversion ratio determined by dividing the $1,000 stated value of the Series B Preferred Stock by a conversion price of $7,000,000 per share. As of January 25, 2021, the number shares of our common stock issuable upon conversion of the 100 outstanding shares of Series B Preferred Stock is de minimis. The conversion price of the Series B Preferred Stock is subject to adjustment in the case of stock splits, stock dividends, combinations of shares, similar recapitalization transactions and certain pro-rata distributions to common stockholders.
Subject to limited exceptions, a holder of the Series B Preferred Stock will not have the right to convert any portion of its Series B Preferred Stock if the holder, together with its affiliates, would beneficially own in excess of 9.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion.
The holders of Series B Preferred Stock are entitled to receive any securities or rights to acquire securities or property granted or issued by us pro rata to the holders of our common stock to the same extent as if such holders had converted all of their shares of Series B Preferred Stock. No distribution may be made on the common stock so long as any dividend due on the Series B Preferred Stock remains unpaid. In the event of a fundamental transaction, such as a merger, consolidation, sale of substantially all assets and similar reorganizations or recapitalizations, the holders of Series B Preferred Stock will be entitled to receive, upon conversion of their shares, any securities or other consideration received by the holders of our common stock pursuant to the fundamental transaction.
Except as required by law, holders of the Series B Preferred Stock are not entitled to voting rights; provided, however, that the affirmative vote of the holders of a majority of the outstanding shares of Series B Preferred Stock is required to take certain actions that may alter or change adversely the rights or preferences of the holders of Series B Preferred Stock, increase the number of shares of Series B Preferred Stock, or authorize a new class ranking senior or pari passu to the Series B Preferred Stock. The Series B Preferred Stock has a liquidation preference equal to $1,000 per share.
The securities purchase agreement and related registration rights agreement, as well as the certificate of designation authorizing the Series B Preferred Stock include certain other agreements and covenants for the benefit of the holders of the Series B Preferred Stock, including several restrictions that have now expired, and a requirement to use our best efforts to maintain the listing or trading of our common stock on one or more specified United States securities exchanges or regulated quotation services.
Once shares of Series B Preferred Stock have been converted, those shares shall resume the status of authorized but unissued shares of preferred stock mayand shall no longer be issueddesignated as Series B Preferred Stock.
Undesignated Preferred Stock
Subject to the restrictions set forth in the certificate of designation for our Series B Preferred Stock, as of January 25, 2021, our Board of Directors has the authority to issue up to 9,999,900 additional shares of preferred stock in one or more series and fix the number of shares constituting any such series, the voting powers, designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, including the dividend rights, dividend rate, terms of which
may be determined atredemption (including sinking fund provisions), redemption price or prices, conversion rights and liquidation preferences of the time of issuanceshares constituting any series, without any further vote or action by the stockholders. For example, the Board of Directors without
further action by shareholders, and may include voting rights (includingis authorized to issue preferred stock that would have the right to vote, as a series on particular matters), preferences as to dividends
and liquidation, conversion and redemption rights and sinking fund provisions.
We have no present plans to issue preferred stock. However, the issuance ofseparately or with any such preferred stock could affect the rights of the holders of common stock and
reduce the value of the common stock. In particular, specific rights granted to
future holdersother stockholder of preferred stock, on any proposed amendment to our certificate of incorporation, or on any other proposed corporate action, including business combinations and other transactions.
We will not offer preferred stock unless the offering is approved by a majority of our independent directors. The independent directors will have access, at our expense, to our counsel or independent counsel.
Delaware Anti-Takeover Law
We have elected not to be subject to certain provisions of Delaware law that could be usedmake it more difficult to restrict our abilityacquire us by means of a tender offer, a proxy contest, open market purchases, removal of incumbent directors and otherwise. These provisions, summarized below, are expected to merge
with or sell our assetsdiscourage types of coercive takeover practices and inadequate takeover bids and to a third party, thereby preservingencourage persons seeking to acquire control of us to first negotiate with our Board of Directors.
In general, Section 203 of the company by present owners.
Warrants and Options
AsDGCL prohibits a publicly held Delaware corporation from engaging in various “business combination” transactions with any interested stockholder for a period of September 10, 2001 warrants to purchase 8,301,738 shares of common
stock were issued and outstanding in the hands of approximately 60 investors.
These warrants are convertible at any time. The strike prices of these warrants
range from $0.20 to $5.481. The warrants expire between three and five years fromafter the date of issuance. The warrantsthe transaction in which the person became an interested stockholder, unless:
• | the transaction is approved by the corporation’s board of directors prior to the date the interested stockholder obtained interested stockholder status; | |
• | upon consummation of the transaction that resulted in the stockholder’s becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned by (a) persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or | |
• | on or subsequent to the date the business combination is approved by the corporation’s board of directors and authorized at an annual or special meeting of stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
A “business combination” is defined to include mergers, asset sales and other transactions resulting in financial benefit to a change of form provision in
them so that ifstockholder. In general, an “interested stockholder” is a change in the form of the common stock occurs due to stock
splits, stock dividends,person who, together with affiliates and associates, owns or mergers, the holders are entitled to receive a pro-
rata increase of shares at a discounted price. However, the holders of the
warrants do not have any voting rights and are not entitled to receive any cash
or property dividends declared by the Board of Directors until they convert the
warrants into common shares. At the time such warrants are exercised, the common
shareholders' ownership percentage of the Company will be diluted. In December
2000, the Company re-priced approximately 3,012,000 warrants it had previously
issued to outside consultants. The warrants were originally issued with an
exercise price ranging from $10.00 to $5.00, and were re-priced with exercise
prices ranging from $5.00 to $2.00 per share. The re-pricing created a charge to
earnings of approximately $234,000.
As of September 10, 2001 there are a total of 4,871,580 options issued and
outstanding in the hands of more than thirty employees and former employees.
These options are exercisable at any time into the Company's $0.001 par value
common stock. The per share strike prices of these options range from $0.50 to
$3.875. These options expirewithin three years, from the date of issuance. At the time
such options are exercised, the common shareholders ownership percentage of the
Company will be diluted.
Transfer Agent and Registrar
Our transfer agent and registrar is American Stock Transfer and Trust
Company, 6201 15/th/ Avenue, Brooklyn, New York 11219 (212) 936-5100.
PLAN OF DISTRIBUTION
We are registering 6,964,724 shares of common stock on behalf of certain
selling shareholders. The shares were issued to the shareholders in private
transactions or are shares that may be acquired by them through the exercise of
warrants or options. The shares offered for resale hereby were issued by the
Company in respect of the following: (i)766,058 shares were issued by the
Company in connection with the acquisition of the net assets of Suncoast
Automation, Inc.; (ii)52,000 shares were issued by the Company as payment for
certain advertising and promotional expenses and consulting services; and
(iii)6,146,666 shares issuable by the Company to the selling shareholders,
employees and consultants upon exercise by them of the issued and outstanding
warrants and options.
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The selling shareholders may sell their shares from time to time at prices
and at terms prevailing at the time of sale.
The selling shareholders, employees and consultants may exercise their
6,146,666 warrants and options from time to time prior to expiration. As of
September 10, 2001, we will receive $12,901,286 from the exercise of such
warrants and options if all are exercised prior to expiration. We will receive
none of the proceeds of any subsequent sale of shares issued under the warrants
or options.
Sales may be made on the over-the-counter market or otherwise at prices and
at terms then prevailing or at prices related to the then current market price,
or in negotiated private transactions, or in a combination of these methods. The
selling shareholders, employees and consultants will act independently of us in
making decisions with respect to the form, timing, manner and size of each sale.
We have been informed by the selling shareholders, employees and consultants
that there are no existing arrangements between any selling shareholder,
employee or consultant and any other person, broker, dealer, underwriter or
agent relating to the sale or distribution of shares of common stock which may
be sold by selling shareholders, employees or consultants through this
prospectus. Selling shareholders, employees and consultants may be deemed
underwriters in connection with resales of their shares.
The common shares may be sold in onedid own, 15% or more of a corporation’s voting stock.
Section 203 applies to Delaware corporations that have a class of voting stock that is listed on a national securities exchange or held of record by more than 2,000 stockholders; provided, however, the following manners:
.restrictions of this statute will not apply to a block trade in which the broker or dealer so engaged will attemptcorporation if:
• | the corporation’s original charter contains a provision expressly electing not to be governed by the statute; | |
• | the corporation’s board of directors adopts an amendment to the corporation’s bylaws within 90 days of the effective date of the statute expressly electing not to be governed by it; | |
• | the stockholders of the corporation adopt an amendment to its charter or bylaws expressly electing not to be governed by the statute (so long as such amendment is approved by the affirmative vote of a majority of the shares entitled to vote); | |
• | a stockholder becomes an interested stockholder inadvertently and as soon as practicable divests himself of ownership of a sufficient number of shares so that he ceases to be an interested stockholder, and during the three year period immediately prior to a business combination, would not have been an interested stockholder but for the inadvertent acquisition; | |
• | the business combination is proposed prior to the consummation or abandonment of a merger or consolidation, a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of the corporation or a proposed tender or exchange offer for 50% or more of the outstanding voting shares of the corporation; or | |
• | the business combination is with an interested stockholder who became an interested stockholder at a time when the restrictions contained in the statutes did not apply. |
Our certificate of incorporation includes a provision electing not to sell the shares as agent, but may position and resell a portionbe governed by Section 203 of the block as principalDCGL. Accordingly, our board of directors does not have the power to facilitate the transaction;
. purchases by a broker or dealer for its account under this prospectus; or
. ordinary brokerage transactions and transactions in which the broker
solicits purchases.
In effecting sales, brokers or dealers engaged by the selling shareholders,
employees and consultants may arrange for other brokers or dealers to
participate. Except as disclosed in a supplement to this prospectus, no broker-
dealer will be paid more than a customary brokerage commission in connectionreject certain business combinations with any saleinterested stockholders based on Section 203 of the common shares. Brokers or dealers may receive commissions,
discounts or other concessions from the selling shareholders, employees and
consultants in amounts to be negotiated immediately prior to the sale. The
compensation to a particular broker-dealer may be in excess of customary
commissions. Profits on any resaleDCGL.
Indemnification
Section 145 of the common shares asDelaware General Corporation Law, or DGCL, provides that a principal by such
broker-dealers and any commissions received by such broker-dealerscorporation may be deemed
to be underwriting discounts and commissions under the Securities Act of 1933.
Any broker-dealer participating in such transactions as agent may receive
commissions from the selling shareholders (and, if they act as agent for the
purchaser of such common shares, from such purchaser).
Broker-dealers may agree with the selling shareholders, employees and
consultants to sell a specified number of common shares at a stipulated price
per share, and, to the extent a broker dealer is unable to do so acting as
agent, to purchase as principal any unsold common shares at a price required to
fulfill the broker-dealer commitment to the selling shareholders. Broker-dealers
who acquire common shares as principal may thereafter resell such common shares
from time to time in transactions (which may involve crosses and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above) in the over-the-counter
market, in negotiated transactions or otherwise at market prices prevailing at
the time of sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such common shares commissions
computed as described above. Brokers or dealers who acquire common shares as
principal and any other participating brokers or dealers may be deemed to be
underwriters in connection with resales of the common shares.
In addition, any common shares covered by this prospectus which qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this prospectus. We will not receive any of the proceeds from the sale of these
common shares, although we have paid the expenses of preparing this prospectus
and the related registration statement of which it is a part.
The selling shareholders, employees and consultants will pay all
commissions and their own expenses, if any, associated with the sale of their
common shares, other than the expenses associated with preparing this
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prospectus and the registration statement of which it is a part.
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares being
registered have been passed upon for the company by Rieck and Crotty, P.C., 55
West Monroe Street, Suite 3390, Chicago, Illinois 60603.
EXPERTS
Our annual financial statements incorporated into this prospectus by
reference to our Annual Report on Form 10-K for the fiscal year ended December
31, 2000 have been audited in part by Grant Thornton LLP, independent public
accountants, as indicated in their report with respect thereto, and by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto and are included herein in reliance upon the authority of those
firms as experts in accounting and auditing in giving said reports.
PART II
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INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
- -----------------------------------------------------
The following table sets forth the various expenses in connection with the sale
and distribution of the securities being registered hereby. All amounts are
estimated except the Securities and Exchange Commission registration fee.
Amount
---------
SEC registration fee $2,533.00
Accounting fees and expenses 2,000.00
Legal fees and expenses 3,000.00
Miscellaneous fees and expenses 1,500.00
---------
Total $9,033.00
---------
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
- ---------------------------------------------------
Registrant is incorporated in the State of Illinois. Section 8.75 of the
Illinois Business Corporation Act defines the powers of registrant to indemnify
officers, directors, employees and agents.
In additional to the provisions of Illinois Business Corporation Act Section
8.75, and pursuant to the power granted therein, registrant has adapted Article
XII of its Bylaws which provides as follows:
ARTICLE XII
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INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1 The corporation shall indemnify any person who was or is a party or - ---------
is threatenthreatened to be made a party to an action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the corporation’s request in such a capacity for another entity against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies (i) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys’ fees but excluding amounts paid in settlement), actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.
Our bylaws provide that we may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation)Company) by reason of the fact that he is or was a directors, officer, employee or agent of the corporation or fiduciary of any employee benefit plan maintained by the
corporation, or whoperson is or was a director, officer, employee or agent of the corporation of a fiduciary as aforesaid,Company, or who is or was serving at the request of the corporationCompany as a director, officer, employee or agent of fiduciary of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney'sattorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by himthe person in connection with such action, suit or proceeding if hethe person acted in good faith and in a manner hethe person reasonably believed to be in or not opposed to the best interests of the corporation (or, in the case of a fiduciary, the best interests of the plan and
plan participants) and, with respect to any criminal action proceeding, had no
reasonable cause to believe his conduct was unlawful. This termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo
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contender or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporationCompany, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that thisthe person’s conduct was unlawful. SECTION 2 The corporation shallOur bylaws also provide that we may indemnify any person who was or is a party or
- --------- is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporationCompany to procure a judgment in its favor by reason of the fact that hethe person is or was a director, officer, employee or agent of the corporation or fiduciary as aforesaid,Company, or is or was serving at the request of the corporationCompany as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney'sattorneys’ fees) actually and reasonably incurred by himthe person in connection with the defense or settlement of such action or suit if hethe person acted in good faith and in a manner hethe person reasonably believed to be in or not opposed to the best interests of the corporation (or, in the case of a fiduciary, the best
interests of the planCompany and plan participants), except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation,Company unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnifyindemnity for such expenses aswhich the Delaware Court of Chancery or such other court shall deem proper.
SECTION 3 To the extent that a
Under our bylaws, expenses (including attorneys’ fees) incurred by an officer or director officer, employeein defending any civil, criminal, administrative or agent of a
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corporation or fiduciary as aforesaid has been successful, on the merits or
otherwise, in the defense of anyinvestigative action, suit or proceeding referred to in
proceeding sections, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection therewith.
SECTION 4 Any indemnification under section 1 and 2 hereof (unless ordered by a
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court) shall be made by the corporation only as authorized in the specific case,
upon a determination of the director, officer, employee, agent of fiduciary is
proper on the circumstances because he has met the applicable standard of
conduct set forth in said sections. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtained, or even if obtainable, a quorum of disinterest directors so
directs, by independent legal counsel in a written opinion, or (3) by the
shareholders.
SECTION 5 Expenses incurred in defending a civil or criminal action, suit or
- --------- proceeding may be paid by the corporationCompany in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors in the
specific case, upon receipt of an undertaking by or ohon behalf of thesuch director officer, employee or agentofficer to repay such amount unlessif it shall ultimately be determined that hesuch person is not entitled to be indemnified by the corporationCompany. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as authorized in this Article.
SECTION 6 we deem appropriate.
The indemnification and advancement of expenses provided by this Article shallour bylaws is not be deemed
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exclusive, of any other rights to which those seeking indemnification may be
entitled under any bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in hissuch person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent, and shall
incur to the benefit of the heirs, executors and administrators of such person.
SECTION 7 The corporationoffice.
Our bylaws also provide that we may purchase and maintain insurance on behalf of any
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of fiduciary,Company, or who is or was serving at the request of the corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article.
SECTION 8 In the case of a merger, the term "corporation" shall include, in
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additional to the surviving corporation, any merging corporation absorbed in a
merger, which if its separate existence had continued, would have had the power
and authority to indemnify its directors, officers and employees or agents, so
that any person who was a director, officer, employee or agent of such merging
corporation, or was serving at the request of another corporation,Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall standagainst any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the same positionCompany would have the power to indemnify such person against such liability under the
provisionsour bylaws. The Company maintains an insurance policy providing for indemnification of this sectionits officers, directors and certain other persons against liabilities and expenses incurred by any of them in certain stated proceedings and under certain stated conditions.
In October 2006, GeoVax and our subsidiary, GeoVax, Inc. entered into indemnification agreements with respectMessrs. McNally, Reynolds, Kollintzas and Spencer. Pursuant to these agreements, we have agreed to hold harmless and indemnify these directors and officers to the surviving corporation as such
person would havefull extent authorized or permitted by applicable Illinois and Georgia law against certain expenses and other liabilities actually and reasonably incurred by these individuals in connection with respect to such mergingcertain proceedings if its separate existence had
continued.
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SECTION 9 For the purpose of this Article, referenced to "other enterprises"
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shall include employee benefit plans; reference to "fines" shall include any
excise tax assessed on a person with respect to an employee benefit plan; and
references to the phrase "serving at the request of the corporation" shall
include any service as a director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries. A person who acted
in good faith and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to havethey acted in a manner "notthey believed in good faith to be in or not opposed to the best interests of the corporation"Company and, with respect to any criminal proceeding, had no reasonable cause to believe that such conduct was unlawful. The agreements also provide for the advancement of expenses to these individuals subject to specified conditions. Under these agreements, we will not indemnify these individuals for expenses or other amounts for which applicable Illinois and Georgia law prohibit indemnification. The obligations under these agreements continue during the period in which these individuals are our directors or officers and continue thereafter so long as referredthese individuals shall be subject to any proceeding by reason of their service to the Company, whether or not they are serving in this Article.
any such capacity at the time the liability or expense incurred for which indemnification can be provided under the agreements.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers andor persons controlling persons ofthe registrant pursuant to the foregoing provisions, or otherwise,the registrant has been advisedinformed that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is therefore enforceable. unenforceable.
In the event that a claimclaims for indemnification against such liabilities (other than theour payment by registrant of expenses incurred or paid by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, registrantwe will, unless in the opinion of itsour counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the questionsquestion whether such indemnification by itus is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
THE SECURITIES WE MAY OFFER
Common Stock
The Common Stock we may offer is described above in “Description of Securities-Capital Stock – Common Stock”.
Preferred Stock
This section describes the general terms of our preferred stock to which any prospectus supplement may relate. A prospectus supplement will describe the terms relating to any preferred stock to be offered by us in greater detail and may provide information that is different from terms described in this prospectus. A copy of our certificate of incorporation, as amended, and of our bylaws, are exhibits to the registration statement of which this prospectus forms a part. See “Description of Securities – Capital Stock - Undesignated Preferred Stocks” for additional information. A certificate of designation or amendment to our certificate of incorporation, as amended, will specify the terms of the preferred stock being offered, and will be filed or incorporated by reference as an issue.
exhibit to the registration statement before the preferred stock is issued. The following description of our preferred stock, and any description of the preferred stock in a prospectus supplement may not be complete and is subject to, and qualified in its entirety by reference to, Delaware law and the actual terms and provisions contained in our certificate of incorporation and our bylaws, each as amended from time to time.
Under our certificate of incorporation, as amended, our board of directors is authorized, without action by the stockholders, to issue preferred stock from time to time with such dividend, liquidation, conversion, voting, redemption, sinking fund and other rights and restrictions as it may determine. All shares of any one series of our preferred stock will be identical, except that shares of any one series issued at different times may differ as to the dates from which dividends may be cumulative, as described in the applicable prospectus supplement.
Unless provided in a prospectus supplement, the shares of our preferred stock to be issued will have no preemptive rights. Any prospectus supplement offering our preferred stock will furnish the following information with respect to the preferred stock offered by that prospectus supplement:
● | the distinctive designation of each series and the number of shares that will constitute the series; |
● | the voting rights, if any, of shares of the series and the terms and conditions of the voting rights; |
● | the dividend rate, if any, on the shares of the series, the dates on which dividends are payable, any restriction, limitation or condition upon the payment of dividends, whether dividends will be cumulative, and the dates from and after which dividends shall accumulate; |
● | the prices at which, and the terms and conditions on which, the shares of the series may be redeemed, if the shares are redeemable; |
● | the terms and conditions of a sinking or purchase fund for the purchase or redemption of shares of the series, if such a fund is provided; |
● | any preferential amount payable upon shares of the series in the event of the liquidation, dissolution or winding up of, or upon the distribution of any of our assets; and |
● | the prices or rates of conversion or exchange at which, and the terms and conditions on which, the shares of the series may be converted or exchanged into other securities, if the shares are convertible or exchangeable. |
If our Board of Directors decides to issue any shares of preferred stock, that issuance may discourage or make more difficult a merger, tender offer, business combination or proxy contest, assumption of control by a holder of a large block of our securities, or the removal of incumbent management, even if these events were favorable to the interests of stockholders. Our Board of Directors, without stockholder approval, may issue preferred stock with voting and conversion rights and dividend and liquidation preferences that may adversely affect the holders of our other equity or debt securities.
The particular terms of any series of preferred stock, and the transfer agent and registrar for that series, will be described in a prospectus supplement. All preferred stock offered, when issued, will be fully paid and nonassessable. Any material United States federal income tax consequences and other special considerations with respect to any preferred stock offered under this prospectus will also be described in the applicable prospectus supplement.
Warrants
We may issue warrants for the purchase of preferred stock, common stock, or any combination thereof. We may issue warrants independently or together with any other securities offered by any prospectus supplement and may be attached to or separate from the other offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into by us with a warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. Further terms of the warrants and the applicable warrant agreements will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement relating to any particular issue of warrants will describe the terms of the warrants, including, as applicable, the following:
● | the title of the warrants; |
● | the aggregate number of the warrants; |
● | the price or prices at which the warrants will be issued; |
● | the designation, terms and number of shares of preferred stock or common stock purchasable upon exercise of the warrants; |
● | the designation and terms of the offered securities, if any, with which the warrants are issued and the number of the warrants issued with each offered security; |
● | the date, if any, on and after which the warrants and the related preferred stock or common stock will be separately transferable; |
● | the price at which each share of preferred stock or common stock purchasable upon exercise of the warrants may be purchased; |
● | the date on which the right to exercise the warrants shall commence and the date on which that right shall expire; |
● | the minimum or maximum amount of the warrants which may be exercised at any one time; |
● | information with respect to book-entry procedures, if any; |
● | a discussion of certain U.S. federal income tax considerations; and |
● | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants.
Units
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with common or preferred stock, and warrants offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus forms a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
We may issue units consisting of one or more shares of common stock or preferred stock, warrants or any combination of such securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Additionally, we will describe in the applicable prospectus supplement the terms of the series of units, including the following:
● | the designation and terms of the units and the securities included in the units; |
● | any provision for the issuance, payment, settlement, transfer or exchange of the units; |
● | the date, if any, on and after which the securities included in the units may be transferable separately; |
● | whether we will apply to have the units traded on a securities exchange or securities quotation system; |
● | any material United States federal income tax consequences; and |
● | how, for United States federal income tax purposes, the purchase price paid for the units is to be allocated among the component securities. |
DILUTION
We will set forth in a prospectus supplement the following information regarding any material dilution of the equity interests of investors purchasing securities in an offering under this prospectus:
● | the net tangible book value per share of our equity securities before and after the offering; |
● | the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and |
● | the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers. |
SELLING STOCKHOLDERS
Each of the selling stockholders was granted registration rights in connection with private offerings conducted by the Company and elected to include the resale of such shares herein. The common stock to be sold by the selling stockholders, including the shares of common stock issuable upon exercise of warrants acquired by the selling stockholders on September 29, 2020 upon conversion of securities issued to them in the bridge financing on June 26, 2020.
The table below, which was prepared based on information supplied to us by the selling stockholders, sets forth information regarding the beneficial ownership of outstanding shares of our common stock owned by the selling stockholders and the shares that they may sell or otherwise dispose of from time to time under this prospectus. Each of the selling stockholders, or their respective transferees, donees or their successors, may resell, from time to time, all, some or none of the shares of our common stock covered by this prospectus, as provided in this prospectus under the section entitled “Plan of Distribution” and in any applicable prospectus supplement. However, we do not know when, in what amount, or at what specific prices the selling stockholders may offer their shares for sale under this prospectus, if any.
The number of shares disclosed in the table below as “beneficially owned” are those beneficially owned as determined under the rules of the SEC. Such information is not necessarily indicative of ownership for any other purpose. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of such security, or “investment power,” which includes the power to dispose of or to direct the disposition of such security. In computing the number of shares beneficially owned by a selling stockholder and the percentage of ownership of that selling stockholder, shares of common stock underlying options or warrants held by that selling stockholder that are convertible or exercisable, as the case may be, within 60 days of January 25, 2021 are included, subject to the “Maximum Percentage” limitation described in footnote 1 to the table below. Those shares, however, are not deemed outstanding for the purpose of computing the percentage ownership of any other unaffiliated selling stockholder. Each selling stockholder’s percentage of ownership in the following table is based upon 4,395,458 shares of our common stock outstanding as of January 25, 2021.
Except as otherwise indicated, the selling stockholders named in the following table have, to our knowledge, sole voting and investment power with respect to the shares beneficially owned by them. In addition, none of the selling stockholders has any family relationships with our officers, directors or controlling stockholders. Furthermore, no selling stockholder is a registered broker-dealer or an affiliate of a registered broker-dealer.
Information concerning any of the selling stockholders may change from time to time, and any changed information will be presented in a prospectus supplement as necessary. Please carefully read the footnotes located below the table in conjunction with the information presented in the table.
Selling Stockholder Name | Beneficial Ownership Prior to this Offering (1) | Shares that may be Offered and Sold Hereby | Beneficial Ownership After this Offering (5) | % Holding After Completion of this Offering | ||||||||||||
Cavalry Fund I LP (2) | 211,834 | (3) | 151,834 | 60,000 | 1.3 | % | ||||||||||
Cavalry Special Ops Fund, LLC | 211,834 | (4) | 151,834 | 60,000 | 1.3 | % | ||||||||||
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(1) | Includes all shares beneficially owned by the selling stockholders as of January 25, 2021, except that the shares held by the selling stockholders are reported at the highest “Maximum Percentage” of 4.99% as described at footnote 2 below. |
(2) | The number of shares in the “Shares that may be Offered and Sold Hereby” column above reflect all of the 151,834 shares issuable upon exercise of the Debenture Conversion Warrants for cash. The June 2020 Warrants and the Debenture Conversion Warrants contain conversion limitations providing that a holder thereof may not exercise them to the extent (but only to the extent) that, if after giving effect to such exercise, the holder or any of its affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the outstanding shares of common stock immediately after giving effect to such. To the extent the above limitation applies, the determination of whether a June 2020 Warrant or Debenture Conversion Warrant shall be exercisable (vis-à-vis other exercisable owned by the holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for exercise (as the case may be). Accordingly, the number of shares of common stock set forth in the table as being registered for a selling stockholder may exceed the number of shares of common stock that the selling stockholder could own beneficially at any given time through its ownership of the June 2020Warrants and Debenture Conversion Warrants. |
(3) | Includes 60,000 shares of common stock, issuable upon exercise of June 2020 Warrants for cash, and 151,834 shares issuable upon exercise of Debenture Conversion Warrants for cash. Cavalry Fund I Management LLC shares voting and investment power with respect to these shares on behalf of this stockholder as well as Cavalry Special Ops Fund, LLC. As manager of Cavalry Fund I Management LLC, Thomas Walsh also shares voting and investment power on behalf of this stockholder. Each of Cavalry Fund I Management LLC and Thomas Walsh disclaim beneficial ownership over the securities covered by this prospectus except to the extent of their pecuniary interest therein. |
(4) | Includes 60,000 shares of common stock, issuable upon exercise of June 2020 Warrants for cash, and 151,834 shares issuable upon exercise of Debenture Conversion Warrants for cash. Cavalry Fund I Management LLC shares voting and investment power with respect to these shares on behalf of this stockholder as well as Cavalry Fund I LP. As manager of Cavalry Fund I Management LLC, Thomas Walsh also shares voting and investment power on behalf of this stockholder. Each of Cavalry Fund I Management LLC and Thomas Walsh disclaim beneficial ownership over the securities covered by this prospectus except to the extent of their pecuniary interest therein. |
(5) | The number of shares in the “Beneficial Ownership After This Offering” column above reflects 60,000 shares issuable upon exercise of June 2020 Warrants for cash, which are not included in this registration statement. These shares may also be sold pursuant to Rule 144. |
PLAN OF DISTRIBUTION
We or any selling stockholder may sell the securities offered by this prospectus in the manner described below.
By the Company
We may sell the securities from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, directly to one or more purchasers, or through any combination of these methods. The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to the prevailing market prices or at negotiated prices.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent herein aboveapplicable:
● | the name or names of any underwriters or dealers, if any; | |
● | the purchase price of the securities and the proceeds we will receive from the sale; | |
● | any over-allotment options under which underwriters may purchase additional securities from us; | |
● | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; | |
● | any public offering price; | |
● | any discounts or concessions allowed or reallowed or paid to dealers; and | |
● | any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement. Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the applicable securities laws
By Underwriters. If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time
By Dealers. If a dealer is utilized in the sale of any securities offered by this prospectus, we will sell those securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. We will set forth the names of the dealers and the terms of the transaction in the applicable prospectus supplement.
Right of First Refusal and Certain Post-Offering Investments. Pursuant to the terms of the Underwriting Agreement dated September 24, 2020, between the Company, as issuer, and Maxim Group LLC and Joseph Gunnar & Co, LLC, as underwriters, we granted the underwriters a right of first refusal, for the eighteen month period ending March 29, 2022, to act as lead managing underwriter and book runner or minimally as co-lead manager and co-book runner and/or co-lead placement agent at each of the underwriter’s discretion, for each and every future public and private equity, equity-linked or debt (excluding commercial bank debt) offering, including all equity linked financings (each, a “Subject Transaction”), during such eighteen (18) month period, of the Company, or any successor to or subsidiary of the Company, but excluding the private placement fund-raising efforts of Immutak Oncology, Inc. In the event that both underwriters exercise their respective right of first refusal as to the same public equity offering, the economic participation between Maxim Group and Joseph Gunnar for this right of first refusal shall be 80% to Maxim Group and 20% to Joseph Gunnar.
By Selling Stockholders
The selling stockholders and any of their respective pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on any trading market, stock exchange or other trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when selling securities:
● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
● | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
● | an exchange distribution in accordance with the rules of the applicable exchange; | |
● | privately negotiated transactions; | |
● | settlement of short sales; | |
● | in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security; | |
● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
● | a combination of any such methods of sale; or | |
● | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell securities under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
In connection with the sale of the securities covered hereby, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities. We will pay certain fees and expenses incurred by us incident to the registration of the securities.
Because the selling stockholders may be deemed to be an “underwriter” within the meaning of the Securities Act, they will be subject to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus. Each selling stockholder has confirmed that there is no charter provision,
bylaw, contract, arrangementunderwriter or statutecoordinating broker acting in connection with the proposed sale of the resale securities by the selling stockholder.
We intend to keep this prospectus effective until the earlier of (i) all of the securities have been sold pursuant to whichthis prospectus, (ii) the securities shall have become eligible to be sold to the public by the stockholders pursuant to Rule 144 under the Securities Act without any directorlimitations on volume or officermanner of registrantsale, or (iii) subsequent disposition of the securities shall not require registration or qualification of them under the Securities Act or of any similar state law then in force. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is indemnifiedavailable and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in any manner against any liability which
hethe distribution of the resale securities may incurnot simultaneously engage in his capacity as such.
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Item 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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Exhibit No. Description of Document
----------- -----------------------
*3(1) Certificate of Incorporation filed July 27, 1990, incorporated
herein by referencemarket making activities with respect to exhibit 7(c)(1) of Form 8-K filed May 14,
1991.
*3(2) By-Laws as amended, incorporated herein by reference to exhibit
3(2) of Form 10-Kthe Common Stock for the fiscalapplicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common Stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and are informing the selling stockholders of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
The validity of any securities offered by this prospectus will be passed upon for us by Womble Bond Dickinson (US) LLP.
EXPERTS
Our consolidated financial statements as of and for our year ended December 31, 1997.
*4(1) Specimen Common Stock Certificate2019 incorporated herein by reference to exhibit 4(1)into this prospectus and elsewhere in the registration statement have been audited by Wipfli LLP, an independent registered public accounting firm, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of Form S-18 filed June 1, 1990.
*10(1) Agreementsaid firm as experts in auditing and Planaccounting in giving said report.
Our consolidated financial statements as of Reorganizationand for our year ended December 31, 2018 incorporated herein by reference into this prospectus and elsewhere in the registration statement have been audited by Porter Keadle Moore, LLC, an independent registered public accounting firm, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in auditing and accounting in giving said report.
INTERESTS OF NAMED EXPERTS AND COUNSEL
No named expert or counsel was hired on a contingent basis, will receive a direct or indirect interest in the issuer, or was a promoter, underwriter, voting trustee, director, officer, or employee of GeoVax.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy the registration statement and any document we file with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information regarding companies, such as ours, that file documents electronically with the SEC. The address of the SEC’s website is www.sec.gov. The information on the SEC’s website is not part of this prospectus, and any references to exhibit 7(c)this website or any other website are inactive textual references only.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC to register the securities to be offered hereby. This prospectus does not contain all of the information included in the registration statement, including certain exhibits and schedules. In addition to the foregoing, we maintain a website at www.geovax.com. Our website content is made available for informational purposes only. It should neither be relied upon for investment purposes nor is it incorporated by reference into this prospectus. We make available at www.geovax.com copies of our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed April 4, 1991.
*10(2) Plan and Agreement of Mergerany amendments to such document as soon as practicable after we electronically file such material with or furnish such documents to the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated herein by reference is considered to exhibit 7(c)(1)be part of Form 8-K filed May 14, 1991.
*10(3) Computer Technology License Agreement dated November 12, 1997,
between Phoenix Technology, Inc.this prospectus and Dauphin Technology, Inc.
included as an exhibit to Form S-1 filed march 17, 1998,
incorporated herein by reference.
*10(4) License Agreement dated May 3, 1996, between Microsoft Corporationyou should read it with the same care that you read this prospectus. Later information that we file with the SEC will automatically update and Dauphin Technology, Inc. included as an exhibit to Form S-1
filed March 17, 1998, incorporated herein by reference.
*10(5) Equity line of credit agreement by and between Techrich
International Limited and Dauphin Technology, Inc. dated April 12,
2000 including Common Stock Purchase Agreement, Registration
Rights Agreement, Escrow Agreement and Form of a stock Purchase
Warrant included as an exhibit to Form 8-K filed on April 20, 2000
incorporated herein by reference.
*10(6) Amendment No. 1 to Common Stock Purchase Agreement dated July 10,
2000 between Dauphin Technology, Inc. and Techrich International
Limited.
*10(7) Asset Purchase Agreement, by and amongsupersede the Company, ADD
Acquisition Corp., T & B Design, Inc. (f/k/a Advanced Digital
Designs, Inc.), Advanced Technologies, Inc., 937 Plum Grove Road
Partnership, the Stockholders of T & B Design, Inc. and Advanced
Technologies, Inc. and the partners of 937 Plum Grove Road
Partnership, dated August 18, 2000 included as an exhibit to Form
8-K/A filed on September 25, 2000 incorporated herein by
reference.
*10(8) Asset Purchase Agreement, by and among the Company, Suncoast
Acquisition Corp., ProtoSource Corporation and Suncoast
Automation, Inc. dated July 1, 2001 included as an exhibit to Form
8-K filed on July 14, 2001 incorporated herein by reference.
24(1) Consent of Arthur Andersen LLP., independent public accountants.
24(2) Consent of Grant Thornton LLP., independent public accountants.
24(3) Consent of Rieck and Crotty, P.C.
* Previously filedinformation that is either contained, or incorporated by reference.
17
Item 17. UNDERTAKINGS
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(A) Subjectreference, in this prospectus, and will be considered to be a part of this prospectus from the termsdate those documents are filed. We have filed with the SEC, and conditions of Sectionincorporate by reference the following in this prospectus:
● | our Annual Report on Form 10-K for the year ended December 31, 2019, filed on March 24, 2020, and Form 10-K/A filed April 28, 2020; |
● | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, filed on May 5, 2020; our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, filed on August 10, 2020; and the Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, filed on November 5, 2020; |
● | our Current Reports on Form 8-K filed on January 3, 2020, January 21, 2020, January 24, 2020, March 9, 2020, March 25, 2020, April 20, 2020, May 6, 2020, May 22, 2020, June 25, 2020, June 26, 2020, August 10, 2020, August 10, 2020, August 26, 2020, September 25, 2020, September 29, 2020, October 26, 2020, November 5, 2020, and November 30, 2020. |
● | our Definitive Proxy Statement on Schedule 14A, as filed with the SEC on July 7, 2020 and the additional proxy material filed on July 28, 2020; and |
● | our Registration Statement on Form 8-A as filed with the SEC on September 24, 2020. |
In addition, all documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities --------------------------------------------------------------------------and Exchange Act of 1934, as amended, after the undersigned Company hereby undertakesdate of the initial registration statement of which this prospectus is a part and prior to the effectiveness of the registration statement as well as all such documents that we file
------------------------------------- with the SecuritiesSEC after the date of this prospectus and Exchange Commissionbefore the termination of the offering of our securities shall be deemed incorporated by reference into this prospectus and to be a part of this prospectus from the respective dates of filing such supplementarydocuments. Unless specifically stated to the contrary, none of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K that we may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus.
You may request a copy of any or all of the documents incorporated by reference but not delivered with this prospectus, at no cost, by writing or telephoning us at the following address and periodic
information,number: GeoVax Labs, Inc., 1900 Lake Park Drive, Suite 380, Smyrna, Georgia 30080, telephone (678) 384-7220. We will not, however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.
Common Stock
Preferred Stock
Warrants
Units
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the costs and reportsexpenses payable by the registrant in connection with the offerings described in this registration statement. In addition to the costs and expenses set forth below, the registrant will pay any selling commissions and brokerage fees and any applicable taxes, fees and disbursements with respect to securities registered hereby sold by the registrant. All of the amounts shown are estimates, except for the SEC registration fee:
Amount to | ||||
SEC Registration Fee | $ | 10,087 | ||
Accountants’ Fees and Expenses * | 3,000 | |||
Legal Fees and Expenses * | 10,000 | |||
Miscellaneous Fees (including Transfer Agent and Printing fees)* | 5,000 | |||
Total | $ | 28,087 | ||
* Estimated.
Item 15. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law, or DGCL, provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to an action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the corporation’s request in such a capacity for another entity against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies (i) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys’ fees but excluding amounts paid in settlement), actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.
Our bylaws provide that we may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. Our bylaws also provide that we may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Under our bylaws, expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be prescribedpaid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as we deem appropriate.
The indemnification and advancement of expenses provided by our bylaws is not exclusive, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
Our bylaws also provide that we may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Company would have the power to indemnify such person against such liability under our bylaws. The Company maintains an insurance policy providing for indemnification of its officers, directors and certain other persons against liabilities and expenses incurred by any ruleof them in certain stated proceedings and under certain stated conditions.
In October 2006, GeoVax and our subsidiary, GeoVax, Inc. entered into indemnification agreements with Messrs. McNally, Reynolds, Kollintzas and Spencer. Pursuant to these agreements, we have agreed to hold harmless and indemnify these directors and officers to the full extent authorized or regulationpermitted by applicable Illinois and Georgia law against certain expenses and other liabilities actually and reasonably incurred by these individuals in connection with certain proceedings if they acted in a manner they believed in good faith to be in or not opposed to the best interests of the Commission heretoforeCompany and, with respect to any criminal proceeding, had no reasonable cause to believe that such conduct was unlawful. The agreements also provide for the advancement of expenses to these individuals subject to specified conditions. Under these agreements, we will not indemnify these individuals for expenses or hereafter duly adoptedother amounts for which applicable Illinois and Georgia law prohibit indemnification. The obligations under these agreements continue during the period in which these individuals are our directors or officers and continue thereafter so long as these individuals shall be subject to any proceeding by reason of their service to the Company, whether or not they are serving in any such capacity at the time the liability or expense incurred for which indemnification can be provided under the agreements.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to authority conferredthe foregoing provisions, the registrant has been informed that in the section.
(B) opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits
The undersigned Company hereby undertakes:
following exhibits are being filed herewith:
Exhibit Number | Description |
3.1 | |
3.1.1 | |
3.1.2 | |
3.1.3 |
___________________
* | Filed herewith. |
(1) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed June 23, 2008. |
(2) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed April 14, 2010. |
(3) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed April 28, 2010. |
(4) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed August 2, 2013. |
(5) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed December 17, 2013. |
(6) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed May 14, 2015. |
(7) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed June 16, 2016. |
(8) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed August 4, 2017. |
(9) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed February 26, 2019 |
(10) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed April 30, 2019 |
(11) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed January 21, 2020. |
(12) | Incorporated by reference from the Amendment No. 2 to registrant’s Registration Statement on Form S-1 (File No. 333-239958) filed August 26, 2020. |
(13) | Incorporated by reference from the Amendment No. 3 to registrant’s Registration Statement on Form S-1 (File No. 333-239958) filed September 8, 2020. |
(14) | Incorporated by reference from the Amendment No. 4 to registrant’s Registration Statement on Form S-1 (File No. 333-239958) filed September 8, 2020. |
(15) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed June 26, 2020. |
| (16) | Incorporated by reference from the registrant’s Current Report on Form 8-K filed September 25, 2020. |
Item 17. | Undertakings |
(a) | The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any Prospectusprospectus required by Sectionsection 10(a)(3) of the Securities Act of 1993;
1933;
(ii) To disclose in the Prospectus any change in the offering
price at which any registering shareholders subject to
the requirement of a Pricing Amendment are offering
their registered securities for sale;
(iii) To reflect in the Prospectusprospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iv)
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference into the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(C)
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Companyregistrant pursuant to the forgoingforegoing provisions, or otherwise, the Companyregistrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Companyregistrant of expenses incurred or paid by a director, officer or controlling person of the Companyregistrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Companyregistrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjustmentadjudication of such issue.
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(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palatine
andSmyrna, State of Illinois,Georgia, on January 26, 2021.
GEOVAX LABS, INC. | |
By: /s/ David A. Dodd | |
David A. Dodd President and Chief Executive Officer | |
KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below constitutes and appoints David A. Dodd and Mark W. Reynolds and each of them, any of whom may act without the 13th dayjoinder of September, 2001.
DAUPHIN TECHNOLOGY, INC.
By: /s/Andrew J. Kandalepas.
------------------------
Andrew J. Kandalepas, President
the other, his true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that said attorneys-in-fact and agents or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirementrequirements of the Securities Act of 1933, as amended, this registration statement has been duly signed below by the following persons in the capacitycapacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Andrew J. Kandalepas Chairman of the Board/President/ September 13, 2001
- ------------------------
Andrew J. Kandalepas Chief Executive Officer
/s/ Jeffrey Goldberg Secretary/Director September 13, 2001
- --------------------
Jeffrey Goldberg
/s/ Gary E. Soiney Director September 13, 2001
- ------------------
Gary E. Soiney
/s/ Mary Ellen W. Conti Director September 13, 2001
- -----------------------
Mary Ellen W. Conti