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| | impairing the liquidation rights of the common stock; or delaying or preventing changes in control or management of our company. Registration Rights Warrant Holders’ Rights Agreement In connection with a private placement offering of shares of common stock and an Investment Banking Agreement dated September 30, 2014, we entered into a Registration Rights Agreement for Warrants, dated November 6, 2014, with MDB Capital Group, LLC (“MDB”) pursuant to which we agreed, upon request, to file a TABLE OF CONTENTS registration statement to cover the resale of up to 299,625 shares of common stock issuable upon exercise of warrants, and to keep such registration statement effective for 12 months starting from the date of effectiveness of such registration statement. Underwriters’ Warrants In connection with the Underwriting Agreement, dated May 17, 2016, between the Company and MDB, as representative of the underwriters, we issued warrants to purchase up to 575,000 shares of our common stock. Pursuant to such warrants, we agreed, upon request, to file a registration statement to cover the resale of shares issuable upon exercise of such warrants, and to keep such registration statement effective until the date on which all of the shares registered for sale or resale under such registration statement are either sold pursuant to such registration statement or can be sold publicly without restriction or limitation under Rule 144 under the Securities Act. Purchase Agreements On February 7, 2017, we entered into a Purchase Agreement (the “February Purchase Agreement”) with certain investors pursuant to which we issued and sold in a private placement a total of 819,673 shares of common stock. Pursuant to the February Purchase Agreement, we agreed to file a registration statement to cover the resale of the shares issued to the investors, and to keep such registration statement effective until the date on which all of the shares registered for sale or resale under such registration statement are either sold pursuant to such registration statement or can be sold publicly without restriction or limitation under Rule 144 under the Securities Act. On September 24, 2017, we entered into a Purchase Agreement (the “September Purchase Agreement”) with an investor pursuant to which we issued and sold in a private placement a total of 2,000,000 shares of common stock. Pursuant to the September Purchase Agreement, we agreed to file a registration statement to cover the resale of the shares issued to the investor, and to keep such registration statement effective until the date on which all of the shares registered for sale or resale under such registration statement are either sold pursuant to such registration statement or can be sold publicly without restriction or limitation under Rule 144 under the Securities Act. Effect of Certain Provisions of our Certificate of Incorporation and Bylaws and the Delaware Anti-Takeover Statute Some provisions of Delaware law and our certificate of incorporation and bylaws contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. Those provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids and to promote stability in our management. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. Certificate of Incorporation and Bylaws Our certificate of incorporation and our bylaws provide for the following: | • | Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue one or more series of preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of our company. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our company. |
| • | Stockholder Meetings. Our bylaws provide that in general a special meeting of stockholders may be called only by our board of directors, the chairman of our board of directors, any of our officers, or any stockholder holding at least fifteen percent (15%) of the voting power of the capital stock issued and outstanding and entitled to vote. |
| • | Requirements for Advance Notification of Stockholder Nominations and Proposals. Our bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of our board of directors or a committee of the board of directors. |
TABLE OF CONTENTS | • | Limits on Ability of Stockholders to Act by Written Consent. We have provided in our bylaws that our stockholders may not act by written consent. This limit on the ability of our stockholders to act by written consent may lengthen the amount of time required to take stockholder actions. As a result, a holder controlling a majority of our capital stock would not be able to amend our bylaws or remove directors without holding a meeting of our stockholders called in accordance with our bylaws. |
| • | Amendment of Certificate of Incorporation and Bylaws. The amendment of the above provisions of our certificate of incorporation and bylaws requires approval by holders of at least two-thirds of our outstanding capital stock entitled to vote generally in the election of directors. |
Preferred stock will be fully paid and nonassessable upon issuance.Delaware Anti-Takeover Statute
Anti-Takeover Effects of Certain Provisions of Nevada Law and Our Charter Documents
The following is a summary of certain provisions of Nevada law, our articles of incorporation and our bylaws. This summary does not purport to be complete and is qualified in its entirety by reference to the Nevada Revised Statutes and our articles of incorporation and bylaws.
Effect of Nevada Control Share Statute. We are subject to Sections 78.378 to 78.3793the provisions of Section 203 of the Nevada Revised Statutes, which are referred to as the Control Share Statute that is a type of anti-takeover law.Delaware General Corporation Law regulating corporate takeovers. In general, these provisions restrict the ability of individuals and groups from acquiring one-fifth or more of the voting shares ofSection 203 prohibits a Nevada corporation that has 200 or more stockholders of record, at least 100 of whom have addresses in Nevada, from exercising the voting rights of the acquired shares, absent required stockholder approval of the share acquisition transaction or an opt out election by the corporation. The prohibition on the voting of the acquired shares is limited to three years after acquisition. To avoid the voting restriction, the acquisition of a controlling interest must be approved by both (a) the holders of a majority of the voting power of the corporation, and (b) if the acquisition would adversely alter or change any preference or any relative or other right given to any other class or series of outstanding shares, the holders of the majority of each class or series affected, excluding those shares as to which any interested stockholder exercises voting rights, and the approval must specifically include the conferral of such voting rights. Although we have not opted out of this statute, a corporation alternatively may expressly elect not to be governed by the provisions in either its articles of incorporation or its bylaws. Additionally, in the face of potential control share transaction, a corporation, if it has not opted out of the statutory provisions, may opt out of the control share statute by amending its articles of incorporation or its bylaws prior to the 10th day following the acquisition of a controlling interest by an acquiring person.
Effect of Nevada Business Combination Statute. We are subject to Sections 78.411 to 78.444 of the Nevada Revised Statutes, which are referred to as the Business Combination Statute. This statute is designed to limit acquirers of voting stock of apublicly-held Delaware corporation from effectingengaging, under certain circumstances, in a business combination without the consent of the stockholders or board of directors. The statute provides that specified persons who, together with their affiliates and associates, own, or within two years did own, 10% or more of the outstanding voting stock of a Nevada corporation with at least 200 stockholders of record cannot engage in specified business combinations with a Nevada corporationan interested stockholder for a period of twothree years afterfollowing the date on which the person became an interested stockholder unless (a)unless:
prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction by which resulted in the person first becamestockholder becoming an interested stockholder; upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, was approvedthe interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, but not for determining the outstanding voting stock owned by the Nevada corporation’s board of directors before the person first became an interested stockholder, (i) shares owned by persons who are directors and also officers, and (ii) shares owned by 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 (b)exchange offer; or at or subsequent to the date of the transaction, the business combination is approved by the board of directors of the corporation and at or after that time, the combination is approvedauthorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of 60%at least 66-2/3% of the outstanding voting stock which is not owned by the interested stockholder. Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns 15% or more of a corporation’s outstanding voting stock or is an affiliate or associate of a corporation and was the owner of 15% or more of the corporation’s outstanding voting powerstock within three years prior to the determination of interested stockholder status. TABLE OF CONTENTS PRICE RANGE OF OUR COMMON STOCK Our common stock trades on the disinterested stockholders. Effect of California Corporation Long-Arm Statute. We are a Nevada corporation, governed by the Nevada Revised Statutes – Nevada Corporations Law; however, our headquarters, property and officers are located in California. Section 2115 of the California Corporations Code (the “California Corporation Long-Arm Statute”) purports to impose on corporations like us certain portions of California’s laws governing corporations formedNasdaq Capital Market under the lawssymbol “PLSE.” The following table sets forth the range of the State of California. While disputes have arisen regarding the enforceability of the California Corporation Long-Arm Statute, the statute purports to apply the California Corporations Code in the following areas of governance to corporations that meet the testhigh and low closing prices for applicabilityour common stock as reported on The Nasdaq Capital Market for the California Corporation Long-Arm Statute: Chapter 1 (general provisions and definitions), toperiods indicated.
| High | Low | Year Ended December 31, 2016:
| | | | | | | Second quarter (since May 18, 2016) | $ | 4.54 | | $ | 4.08 | | Third quarter | $ | 6.43 | | $ | 4.40 | | Fourth quarter | $ | 6.50 | | $ | 5.21 | | | | | | | | | Year Ended December 31, 2017:
| | | | | | | First quarter | $ | 33.45 | | $ | 5.96 | | Second quarter | $ | 37.60 | | $ | 17.61 | | Third quarter | $ | 33.58 | | $ | 10.26 | | Fourth quarter | $ | 30.33 | | $ | 18.81 | | | | | | | | | Year Ending December 31, 2018:
| | | | | | | First quarter | $ | 24.69 | | $ | 12.67 | | Second quarter | $ | 20.28 | | $ | 14.04 | | Third quarter | $ | 16.45 | | $ | 12.83 | | Fourth quarter (through October 24, 2018) | $ | 14.34 | | $ | 9.08 | |
The last reported sale price of our common stock on the extent applicable to the following provisions; Section 301 (annual electionNasdaq Capital Market on October 24, 2018 was $9.08 per share. Past price performance is not indicative of directors); Section 303 (removal of directors without cause); Section 304 (removal of directors by court proceedings); Section 305, subdivision (c) (filling of director vacancies where less than a majority in office elected by stockholders); Section 309 (directors’ standard of care); Section 316 (excluding paragraph (3) of subdivision (a) andfuture price performance.
paragraph (3) of subdivision (f)) (liability of directors for unlawful distributions); Section 317 (indemnification of directors, officers, and others); Sections 500 to 505, inclusive (limitations on corporate distributions in cash or property); Section 506 (liability of stockholder who receives unlawful distribution); Section 600, subdivisions (b) and (c) (requirement for annual stockholders’ meeting and remedy if same not timely held); Section 708, subdivisions (a), (b), and (c) (stockholder’s right to cumulate votes at any election of directors); Section 710 (supermajority vote requirement); Section 1001, subdivision (d) (limitations on sale of assets); Section 1101 (provisions following subdivision (e)) (limitations on mergers); Section 1151 (first sentence only) (limitations on conversions); Section 1152 (requirements of conversions); Chapter 12 (commencing with Section 1200) (reorganizations); Chapter 13 (commencing with Section 1300) (dissenters’ rights); Sections 1500 and 1501 (records and reports); Section 1508 (action by Attorney General); Chapter 16 (commencing with Section 1600) (rights of inspection).DIVIDEND POLICY
We believe it is likely that we meet the test for the application of the California Corporation Long-Arm Statutehave never paid or declared any cash dividends on our common stock and do not anticipate a specific timepaying cash dividends in the foreseeable future. In addition, the terms of our existing debt agreement restrict our ability to pay dividends on our common stock. We anticipate that we will retain all of our future earnings for use in the operation of our business and for general corporate purposes. Any determination to pay dividends in the future when we would not meet such test. The California Corporation Long-Arm Statute, if applicable, would purportwill be at the discretion of our board of directors. Accordingly, investors must rely on sales of their common stock after price appreciation, which may never occur, as the only way to require a different outcome for certain important activities fundamentalrealize any future gains on their investments. TABLE OF CONTENTS DILUTION Our net tangible book value as of June 30, 2018 was approximately $26.7 million, or $1.58 per share of our common stock. Net tangible book value per share is equal to our total net tangible book value, which is our total tangible assets less our total liabilities, divided by the number of shares of our outstanding common stock. Dilution per share equals the difference between the amount per share paid by purchasers of shares of common stock in the rights offering and the net tangible book value per share of our common stock immediately after the rights offering. After giving effect to the governanceassumed sale of corporations,[•] shares in the rights offering, at the subscription price of $[•] per share, and after deducting estimated offering expenses payable by us, our pro forma net tangible book value as of June 30, 2018 would have been approximately $[•], or $[•] per share. This represents an immediate increase in pro forma net tangible book value to existing stockholders of $[•] per share and an immediate dilution to purchasers in the rights offering of $[•] per share. The following table illustrates this per-share dilution (assuming a fully subscribed for rights offering of shares at the subscription price of $[•] per share): Subscription price per share | | | | $ | [•] | | Net tangible book value per share at June 30, 2018 | $ | 1.58 | | | | | Net increase per share attributable to the rights offering | $ | [•] | | | | | Pro forma net tangible book value per share after giving effect to the rights offering | | | | $ | [•] | | Dilution in net tangible book value per share to purchasers | | | | $ | [•] | |
The information above is as of June 30, 2018 and excludes: 2,894,103 shares of common stock subject to options outstanding as of June 30, 2018, with a weighted average exercise price of $16.08 per share; 192,500 performance stock options granted during the six-month period ended June 30, 2018 for which performance criteria had not been established as of June 30, 2018; 73,250 shares of common stock subject to options granted subsequent to June 30, 2018, with a weighted average exercise price of $13.13 per share; 249,709 shares of common stock that have been reserved for issuance upon the exercise of outstanding warrants as of June 30, 2018, with a weighted average exercise price of $4.14; 222,606 shares of our common stock subject to outstanding restricted stock units as of June 30, 2018; and 490,104 shares of common stock reserved for future issuance under our equity incentive plans and our Employee Stock Purchase Plan as of June 30, 2018. To the extent that any options or warrants are exercised, RSUs vest, new options are issued under our equity incentive plans or we otherwise issue additional shares of common stock in the future at a price less than the public offering price, there will be further dilution to new investors. TABLE OF CONTENTS THE RIGHTS OFFERING Subscription Rights Basic Subscription Rights We will distribute to each holder of our common stock who is a record holder of our common stock on the record date, which is [•], 2018 at no charge, one non-transferable subscription right for each share of common stock owned. The subscription rights will be evidenced by non-transferable subscription rights certificates. Each subscription right will entitle the rights holder to purchase [•] shares of our common stock at a price of $[•] per share, the subscription price, which shall be paid in cash, upon timely delivery of the required documents and payment of the subscription price. We will not issue fractional shares, but rather will round down the aggregate number of shares you are encouragedentitled to reviewreceive to the effectnearest whole number. If rights holders wish to exercise their subscription rights, they must do so prior to 5:00 p.m., Eastern Time, on [•], 2018, the expiration date for the rights offering, subject to extension. After the expiration date, the subscription rights will expire and will have no value. See below “—Expiration of the California Long-Arm StatuteRights Offering and Extensions, Amendments and Termination.” You are not required to exercise all of your subscription rights. We will deliver to the record holders who purchase shares in the rights offering certificates representing the shares purchased as soon as practicable after the rights offering has expired. Over-Subscription Rights Subject to the allocation described below, each subscription right also grants the holder an over-subscription right to purchase additional shares of our common stock that are not purchased by other rights holders pursuant to their basic subscription rights. You are entitled to exercise your over-subscription right only if you exercise your basic subscription right in full. If you wish to exercise your over-subscription right, you should indicate the number of additional shares that you would like to purchase in the space provided on your rights certificate, as well as the number of shares that you beneficially own without giving effect to any shares to be purchased in this rights offering. When you send in your rights certificate, you must also send the full purchase price, as provided herein, for the number of additional shares that you have requested to purchase (in addition to the payment, as provided herein, due for shares purchased through your basic subscription right). If the number of shares remaining after the exercise of all basic subscription rights is not sufficient to satisfy all requests for shares pursuant to over-subscription rights, you will be allocated additional shares (subject to elimination of fractional shares) in the proportion which the number of shares you purchased through the basic subscription right bears to the total number of shares that all oversubscribing stockholders purchased through the basic subscription right. The subscription agent will return any excess payments in the form in which made. As soon as practicable after the expiration date, the subscription agent will determine whether the differences fromnumber of shares of common stock that you may purchase pursuant to the Delaware General Corporation Lawover-subscription right. You will receive certificates representing these shares as soon as practicable after the expiration date and after all allocations and adjustments have been effected. If you request and pay for more shares than are importantallocated to you.you, we will refund the overpayment in the form in which made. In connection with the exercise of the over-subscription right, custodian banks, brokers, dealers and other nominee holders of subscription rights who act on behalf of beneficial owners will be required to certify to us and to the subscription agent as to the aggregate number of subscription rights exercised, and the number of shares of common stock requested through the over-subscription right, by each beneficial owner on whose behalf the nominee holder is acting. Our Charter Documents. Our charterExpiration of the Rights Offering and Extensions, Amendments and Termination
You may exercise your subscription rights at any time prior to 5:00 p.m., Eastern Time, on [•], 2018, the expiration date for the rights offering. If you do not exercise your subscription rights before the expiration date of the rights offering, your subscription rights will expire and will have no value. We will not be required to issue shares of our common stock to you if the subscription agent receives your rights certificate or payment, after the expiration date, regardless of when you sent the rights certificate and payment, unless you send the documents include provisionsin compliance with the guaranteed delivery procedures described below. We may, in our sole discretion, extend the time for exercising the subscription rights. We may extend the expiration date at any time after the record date. If the commencement of the rights offering is delayed for a period TABLE OF CONTENTS of time, the expiration date of the rights offering may be similarly extended. We will extend the duration of the rights offering as required by applicable law, and may choose to extend the duration of the rights offering for any reason. We may extend the expiration date of the rights offering by giving oral or written notice to the subscription agent on or before the scheduled expiration date. If we elect to extend the expiration date of the rights offering, we will issue a press release announcing such extension no later than 9:00 a.m., Eastern Time, on the next business day after the most recently announced expiration date. We reserve the right, in our sole discretion, to amend or modify the terms of the rights offering. We also reserve the right to terminate the rights offering at any time prior to the expiration date for any reason, in which event all funds received in connection with the rights offering will be returned without interest or deduction to those persons who exercised their subscription rights as soon as practicable. Calculation of Subscription Rights Exercised; Missing or Incomplete Subscription Information If you do not indicate the number of subscription rights being exercised, or do not forward full payment of the total subscription price payment for the number of subscription rights that you indicate are being exercised, then you will be deemed to have exercised your subscription rights with respect to the maximum number of whole subscription rights that may be exercised with the aggregate subscription price payment you delivered to the subscription agent. If your aggregate subscription price payment is greater than the amount you owe for exercise of your basic subscription right in full, you will be deemed to have exercised your over-subscription right to purchase the effectmaximum number of discouraging, delayingshares of our common stock with your over-payment. If we do not apply your full subscription price payment to your purchase of shares of our common stock, the subscription agent will return the excess amount to you by mail, without interest or preventing a changepenalty, as soon as practicable after the expiration date of the rights offering. Conditions to the Rights Offering We may terminate the rights offering, in controlwhole or an unsolicited acquisition proposalin part, if at any time before completion of the rights offering there is any judgment, order, decree, injunction, statute, law or regulation entered, enacted, amended or held to be applicable to the rights offering that a stockholder might consider favorable, including a proposal that might result in the paymentsole judgment of a premium over the market price for the shares held by our stockholders. Certain of these provisions are summarized in the following paragraphs. Effects of authorized but unissued common stock and preferred stock. One of the effects of the existence of authorized but unissued common stock and undesignated preferred stock may be to enable our board of directors would or might make the rights offering or its completion, whether in whole or in part, illegal or otherwise restrict or prohibit completion of the rights offering. We may waive any of these conditions and choose to makeproceed with the rights offering even if one or more difficultof these events occur. If we terminate the rights offering, in whole or in part, all affected subscription rights will expire without value and all subscription payments in the form in which received by the subscription agent will be returned in the form in which paid, without interest or deduction, as soon as practicable. See also “—Expiration of the Rights Offering and Extensions, Amendments and Termination.”
Method of Exercising Subscription Rights The exercise of subscription rights is irrevocable and may not be cancelled or modified. Your subscription rights will not be considered exercised unless the subscription agent receives from you, your custodian bank, broker, dealer or nominee, as the case may be, all of the required documents properly completed and executed and your full subscription price payment in cash, as provided herein, prior to discourage an attemptthe expiration date of the rights offering, which is currently set to obtain controlbe 5:00 p.m., Eastern Time, on [•], 2018. Rights holders may exercise their rights as follows: Subscription by Registered Holders Rights holders who are registered holders of our companycommon stock as of the record date may exercise their subscription right by properly completing and executing the rights certificate together with any required signature guarantees and forwarding it, together with payment in full, as provided herein, of the subscription price for each share of the common stock for which they subscribe, to the subscription agent at the address set forth under the subsection entitled “— Delivery of Subscription Materials and Payment,” on or prior to the expiration date. Subscription by DTC Participants Banks, trust companies, securities dealers and brokers (each, a “Nominee”) that hold shares of our Common Stock on the Record Date as nominee for more than one beneficial owner may, upon proper showing to the subscription agent, exercise such beneficial owner’s subscription right through DTC on the same basis as if the beneficial owners were stockholders on the Record Date. Such Nominee may exercise the subscription right on behalf of the exercising beneficial owner through DTC’s PSOP Function on the “agents subscription over PTS” procedure TABLE OF CONTENTS by (1) providing a certification as to the aggregate number of subscription rights exercised by the beneficial owner on whose behalf such Nominee is acting, and (2) instructing DTC to charge the Nominee’s applicable DTC account for the subscription payment for the new shares to facilitate the delivery of the full subscription payment to the subscription agent. DTC must receive the subscription instructions and payment for the new shares no later than the expiration date. Except as described under the subsection titled “— Guaranteed Delivery Procedures”, subscriptions accepted by the subscription agent via a Notice of Guaranteed Delivery must be delivered to the subscription agent with payment before the expiration date. Subscription by Beneficial Owners Rights holders who are beneficial owners of shares of our common stock as of the record date and whose shares are registered in the name of a custodian bank, broker, dealer or other nominee, or would prefer to have an institution conduct the transaction relating to the rights on their behalf, should instruct their custodian bank, broker, dealer or other nominee or institution to exercise their rights and deliver all documents and payment, on their behalf, prior to the expiration date. A rights holder’s subscription rights will not be considered exercised unless the subscription agent receives from such rights holder or the rights holder’s custodian bank, broker, dealer, or other nominee or institution, as the case may be, all of the required documents and such holder’s full subscription price payment. Method of Payment Payments must be made in full in U.S. currency by: uncertified check drawn against a U.S. bank payable to “Broadridge Corporate Issuer Solutions, Inc. (acting as Subscription Agent for Pulse Biosciences)”; wire transfer of immediately available funds to accounts maintained by the subscription agent; a certified check, bank draft, or cashier’s check drawn against a U.S. bank payable to “Broadridge Corporate Issuer Solutions, Inc. (acting as Subscription Agent for Pulse Biosciences)”; or U.S. Postal money order payable to “Broadridge Corporate Issuer Solutions, Inc. (acting as Subscription Agent for Pulse Biosciences)”. Rights certificates received after the expiration date of the rights offering will not be honored, and we will return your payment to you in the form received as soon as practicable, without interest or deduction. The subscription agent will be deemed to receive payment upon: clearance of any uncertified check deposited by the subscription agent; receipt of collected funds wired in the subscription agent’s account; receipt by the subscription agent of any certified check, bank draft, or cashier’s check drawn upon a U.S. bank; or receipt by the subscription agent of any U.S. Postal money order. Clearance of Uncertified Personal Checks If you are paying by uncertified personal check, please note that payment will not be deemed to have been received by the subscription agent until the check has cleared, which could take at least five (5) business days. Any personal check used to pay for shares of our common stock must clear the appropriate financial institutions prior to 5:00 p.m., Eastern Time, on [•], 2018, the expected expiration date of this rights offering, unless we, in our sole discretion, extend the period for exercising the subscription rights. Accordingly, holders that wish to pay the subscription price by means of an uncertified personal check are urged to make payment sufficiently in advance of the expiration of the rights offering to ensure such payment is received and clears by such date. If you elect to exercise your subscription rights, we urge you to consider using a merger, tender offer, proxy contestcertified check, cashier’s check, bank draft, U.S. Postal money order, or otherwise,wire transfer of funds to ensure that the subscription agent receives your funds prior to the expiration of the rights offering. Instructions for Completing Your Subscription Rights Certificate You should read the instruction letter accompanying the rights certificate carefully and therebystrictly follow it. DO NOT SEND RIGHTS CERTIFICATES OR PAYMENTS TO THE COMPANY. Except as described below TABLE OF CONTENTS under “— Guaranteed Delivery Procedures,” we will not consider your subscription received until the subscription agent has received delivery of a properly completed and duly executed rights certificate and payment of the full subscription amount. The risk of delivery of all documents and payments is on you or your nominee, not us or the subscription agent. The method of delivery of rights certificates and payment of the subscription amount to protect the continuitysubscription agent will be at the risk of management. the holders of rights, but, if sent by mail, we recommend that you send those certificates and payments by overnight courier or by registered mail, properly insured, with return receipt requested, and that a sufficient number of days be allowed to ensure delivery to the subscription agent and clearance of payment before the expiration of the subscription period. Unless a rights certificate provides that the shares of common stock are to be delivered to the record holder of such rights or such certificate is submitted for the account of a bank or a broker, signatures on such rights certificate must be guaranteed by an “Eligible Guarantor Institution,” as such term is defined in Rule 17Ad-15 of the Securities Exchange Act of 1934 (an “Eligible Institution”), subject to any standards and procedures adopted by the subscription agent. See “— Medallion Guarantee May Be Required.” Medallion Guarantee May Be Required If inyou completed any part of the duesubscription rights certificate to provide that the Common Stock purchased pursuant to your exercise of its fiduciary obligations, the board of directorsSubscription Rights were to determinebe (x) issued in a name other than that a takeover proposal was not in our best interest, such shares could be issued by the board of directors without stockholder approval in one or more transactions that might prevent or render more difficult or costly the completion of the takeover transaction by dilutingregistered holder, or (y) issued to an address other than that shown on the voting or other rightsfront of the proposed acquirersubscription rights certificate, your signature on each subscription rights certificate must be guaranteed by an Eligible Institution, such as a member firm of a registered national securities exchange or insurgent stockholder group, by putting a substantial voting bloc in institutional or other hands that might undertake to support the positionmember of the incumbent board of directors, by effecting an acquisition that might complicateFinancial Industry Regulatory Authority, Inc., or preclude the takeover, or otherwise. Cumulative Voting. Our articles of incorporation does not provide for cumulative voting in the election of directors, which would allow holders of less than a majority of the stock to elect some directors.
Vacancies. Our bylaws provide that all vacancies may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum.
DESCRIPTION OF THE DEPOSITARY SHARES
General
At our option, we may elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. If we do elect to offer fractional shares of preferred stock, we will issue receipts for depositary shares and each of these depositary shares will represent a fraction of a share of a particular series of preferred stock, as specified in the applicable prospectus supplement. Each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of preferred stock underlying that depositary share, to all rights and preferences of the preferred stock underlying that depositary share. These rights may include dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be deposited with acommercial bank or trust company selectedhaving an office or correspondent in the United States, or by usa member of a Stock Transfer Association approved medallion program such as STAMP, SEMP or MSP subject to act as depositary, under a deposit agreementstandards and procedures adopted by the subscription agent.
Subscription and among us, the depositaryInformation Agent The subscription agent and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursinginformation agent for the depositary shares. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectusrights offering is not complete, and is subject to modification in any prospectus supplement for any issuance of depositary shares. You should refer to the forms of the deposit agreement, our articles of incorporation and the certificate of designation that are, or will be, filed with the SEC for the applicable series of preferred stock.
Dividends
The depositary will distribute cash dividends or other cash distributions, if any, received in respect of the series of preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant record date. The relevant record date for depositary shares will be the same date as the record date for the preferred stock.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary, with our approval, may adopt another method for the distribution, including selling the property and distributing the net proceeds to the holders.
Liquidation preference
If a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If a series of preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole
or in part, of the preferred stock held by the depositary. Whenever we redeem any preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock so redeemed. The depositary will mail the notice of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and not fewer than 20 or more than 60 days, unless otherwise provided in the applicable prospectus supplement, prior to the date fixed for redemption of the preferred stock.
Voting
Upon receipt of notice of any meeting at which the holders of preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts underlying the preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same date as the record date for the preferred stock. The depositary will, to the extent practicable, vote the preferred stock underlying the depositary shares in accordance with these instructions. We will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to vote the preferred stock in accordance with these instructions. The depositary will not vote the preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts.
Withdrawal of preferred stock
Owners of depositary shares will be entitled to receive upon surrender of depositary receipts at the principal office of the depositary and payment of any unpaid amount due to the depositary, the number of whole shares of preferred stock underlying their depositary shares.
Partial shares of preferred stock will not be issued. Holders of preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depositary receipts evidencing depositary shares for the preferred stock.
Amendment and termination of the deposit agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between the depositary and us. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been approved by at least a majority of the outstanding depositary shares. The deposit agreement may be terminated by the depositary or us only if:
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| | all outstanding depositary shares have been redeemed; or
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| | there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.
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Charges of depositary
Broadridge Corporate Issuer Solutions, Inc. We will pay all transferfees and other taxes and governmental charges arising solely from the existenceexpenses of the depositary arrangement. We will also pay charges of the depositary in connection with: | ·
| | the initial deposit of the preferred stock;
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| | the initial issuance of the depositary shares;
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| | any redemption of the preferred stock; and
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| | all withdrawals of preferred stock by owners of depositary shares.
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Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified charges as provided in the deposit agreement for their accounts. If these charges have not been paid, the depositary may:
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| | refuse to transfer depositary shares;
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| | withhold dividends and distributions; and
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| | sell the depositary shares evidenced by the depositary receipt.
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Miscellaneous
The depositary will forwardBroadridge related to the holders of depositary receipts all reportsrights offering and communications we deliverhave also agreed to the depositaryindemnify Broadridge from certain liabilities that we are required to furnish to the holders of the preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of preferred stock.
Neither the depositary nor we will be liable if either the depositary or we are prevented or delayed by law or any circumstance beyond the control of either the depositary or us in performing our respective obligations under the deposit agreement. Our obligations and the depositary’s obligations will be limited to the performance in good faith of our or the depositary’s respective duties under the deposit agreement. Neither the depositary nor we will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. The depositary and we may rely on:
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| | written advice of counsel or accountants;
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| | information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information; and
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| | documents believed to be genuine and to have been signed or presented by the proper party or parties.
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Resignation and removal of depositary
The depositary may resign at any time by delivering a notice to us. We may remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or removal. The successor depositary must be a bank and trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000.
Federal income tax consequences
Owners of the depositary shares will be treated for U.S. federal income tax purposes as if they were owners of the preferred stock underlying the depositary shares. As a result, owners will be entitled to take into account for U.S. federal income tax purposes and deductions to which they would be entitled if they were holders of such preferred stock. No gain or loss will be recognized for U.S. federal income tax purposes upon the withdrawal of preferred stock in exchange for depositary shares. The tax basis of each share of preferred stock to an exchanging owner of depositary shares will, upon such exchange, be the same as the aggregate tax basis of the depositary shares exchanged. The holding period for preferred stock in the hands of an exchanging owner of depositary shares will include the period during which such person owned such depositary shares.
DESCRIPTION OF THE WARRANTS
General
We may issue warrants for the purchase of our debt securities, preferred stock or common stock, or any combination thereof. Warrants may be issued independently or together with our debt securities, preferred stock or common stock and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agentincur in connection with the warrants. The warrantrights offering. Broadridge can be contacted at the following address and telephone number:
Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS Re-Organization Dept.
P.O. Box 1317
Brentwood, NY 11717-0718
Toll Free: 1-888-789-8409 Delivery of Subscription Materials and Payment You should deliver your subscription rights certificate and payment of the subscription price, as provided herein, or, if applicable, nominee holder certifications and/or notice of guaranteed delivery, to the subscription agent by one of the methods described below: By mail: | By overnight courier: | | | Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS Re-Organization Dept.
P.O. Box 1317
Brentwood, NY 11717-0718 | Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS IWS
51 Mercedes Way
Edgewood, NY 11717 |
Your delivery to an address or by any method other than as set forth above will not constitute valid delivery and we may not honor the exercise of your subscription rights. You should direct any questions or requests for assistance concerning the method of subscribing for the shares of common stock or for additional copies of this prospectus to the information agent. TABLE OF CONTENTS Funding Arrangements; Return of Funds Broadridge Corporate Issuer Solutions, Inc., the subscription agent, will not have any obligation or relationshiphold funds received in payment for shares of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain provisionsour common stock in a segregated account pending completion of the warrantsrights offering. The subscription agent will hold this money until the rights offering is not complete. Forcompleted or is withdrawn or terminated. If the termsrights offering is canceled for any reason, all subscription payments received by the subscription agent will be returned to subscribers, without interest or penalty, as soon as practicable. Guaranteed Delivery Procedures If you cannot sign and mail the subscription rights certificate by the expiration date, the subscription agent will grant you three (3) business days after the expiration date to deliver the subscription rights certificate if you follow the following instructions for providing the subscription agent notice of a particular series of warrants, you should refer to the prospectus supplement for that series of warrants and the warrant agreement for that particular series.guaranteed delivery: Debt warrants
The prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the terms of the debt warrants, including the following:
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1. | | On or prior to the title ofexpiration date, the debt warrants; subscription agent must receive: |
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a. | | the offering pricePayment in full in cash, as provided herein, for the debt warrants, if any;
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| | the aggregate numberall shares of common stock subscribed for through the debt warrants;
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| | the designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt warrants;
subscription right, and |
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b. | | if applicable,A properly completed and duly executed notice of guaranteed delivery (the “Notice of Guaranteed Delivery”) substantially in the date from and after whichform accompanying this prospectus either by mail or overnight carrier, that specifies the debt warrants and any debt securities issued with them will be separately transferable;
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| | the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property;
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| | the dates on which the right to exercise the debt warrants will commence and expire;
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| | if applicable, the minimum or maximum amountname of the debt warrants that may be exercised at any one time;
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| | whether the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon exerciseholder of the debt warrants will be issued in registered or bearer form;
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| | information with respect to book-entry procedures, if any; the currency or currency units in which the offering price, if any,rights and the exercise price are payable;
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| | if applicable, a discussion of material U.S. federal income tax considerations;
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| | the antidilution provisions of the debt warrants, if any;
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| | the redemption or call provisions, if any, applicable to the debt warrants;
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| | any provisions with respect to the holder’s right to require us to repurchase the debt warrants upon a change in control or similar event; and
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| | any additional terms of the debt warrants, including procedures, and limitations relating to the exchange, exercise and settlement of the debt warrants.
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Debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations. Debt warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon exercise and will not be entitled to payment of principal or any premium, if any, or interest on the debt securities purchasable upon exercise.
Equity warrants
The prospectus supplement relating to a particular series of warrants to purchase our common stock or preferred stock will describe the terms of the warrants, including the following:
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| | the title of the warrants;
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| | the aggregate number of warrants;
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| | the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants;
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| | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each security;
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| | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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| | the number of shares of common stock subscribed for. The Notice of Guaranteed Delivery must be guaranteed by an Eligible Institution such as a member firm of a registered national securities exchange, a member of the Financial Industry Regulatory Authority, Inc., a commercial bank, trust company or preferred stock that may be purchased uponcredit union having an office, branch or agency in the United States, or by a member of a Stock Transfer Association approved medallion program such as STAMP, SEMP or MSP. |
The Eligible Institution must guarantee that the properly completed and executed rights certificate for all shares of common stock subscribed for will be delivered to the subscription agent within three (3) business days after the expiration date. | 2. | The subscription agent will then conditionally accept the exercise of a warrantthe rights and will withhold the exercise pricecertificates for shares of common stock until it receives the warrants;properly completed and duly executed rights certificate within that time period. |
Notices of guaranteed delivery and payments should be mailed or delivered to the appropriate addresses set forth under “— Delivery of Subscription Materials and Payment.” Notice to Beneficial Holders If you are a broker, a trustee or a depositary for securities who holds shares of our common stock for the account of others as of the record date, you should notify the respective beneficial owners of such shares of the rights offering as soon as possible to find out their intentions with respect to exercising their subscription rights. You should obtain instructions from the beneficial owners with respect to their subscription rights, as set forth in the instructions we have provided to you for your distribution to beneficial owners. If a beneficial owner so instructs, you should complete the appropriate subscription rights certificates and submit them to the subscription agent with the proper payment. If you hold shares of our common stock for the account(s) of more than one beneficial owner, you may exercise the number of subscription rights to which all such beneficial owners in the aggregate otherwise would have been entitled had they been direct record holders of our common stock on the record date, provided that you, as a nominee record holder, make a proper showing to the subscription agent by submitting the form entitled “Nominee Holder Certification” substantially in the form accompanying this prospectus. If you did not receive this form, you should contact the subscription agent to request a copy. Beneficial Owners If you are a beneficial owner of shares of our common stock or will receive subscription rights through a custodian bank, broker, dealer or other nominee, we will ask your custodian bank, broker, dealer or other nominee to notify you of the rights offering. If you wish to exercise your subscription rights, you will need to have your custodian bank, broker, dealer or other nominee act for you. If you hold shares of our common stock directly under your name in stock certificate(s) or in book-entry, or uncertificated, form, but would prefer to have your custodian | ·
| | the dates on which the right to exercise the warrants shall commence and expire;
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| | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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| | the currency or currency units in which the offering price, if any, and the exercise price are payable;
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| | if applicable, a discussion of material U.S. federal income tax considerations;
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| | the antidilution provisions of the warrants, if any;
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| | the redemption or call provisions, if any, applicable to the warrants;
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TABLE OF CONTENTS -18-bank, broker, dealer or other nominee act for you, you should contact your nominee and request it to effect the transactions for you. Your nominee may establish a deadline prior to the expiration date by which you must provide it with your instructions to exercise your subscription rights and payment for your shares.
To indicate your decision with respect to your subscription rights, you should complete and return to your custodian bank, broker, dealer or other nominee the form entitled “Beneficial Owners Election Form” substantially in the form accompanying this prospectus. You should receive the “Beneficial Owners Election Form” from your custodian bank, broker, dealer or other nominee with the other rights offering materials. If you wish to obtain a separate subscription rights certificate, you should contact the nominee as soon as possible and request that a separate subscription rights certificate be issued to you. You should contact your custodian bank, broker, dealer or other nominee if you do not receive this form but you believe you are entitled to participate in the rights offering. We are not responsible if you do not receive this form from your custodian bank, broker, dealer or nominee or if you receive it without sufficient time to respond.
Subscription Price | ·
| | any provisions with respect to the holder’s right to require us to repurchase the warrants upon a change in control or similar event; and
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| | any additional terms of the warrants, including procedures, and limitations relating to the exchange, exercise and settlement of the warrants.
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HoldersIn determining the subscription price, our board of equity warrantsdirectors, with the advice and input of management and advisors, considered a number of factors, including: the likely cost of capital from other sources, the price at which our stockholders might be willing to participate in the rights offering, historical and current trading prices for our common stock, our need for liquidity and capital and the desire to provide an opportunity to our stockholders to participate in the rights offering on a pro rata basis. In conjunction with its review of these factors, our board of directors also reviewed a range of discounts to market value represented by the subscription prices in various prior rights offerings of public companies. The subscription price was established at a price of $[•] per full share. The subscription price is not necessarily related to our book value, net worth or any other established criteria of value and may or may not be considered the fair value of our common stock to be offered in the rights offering. The Company cannot give any assurance that our common shares will trade at or above the subscription price in any given time period. You should not consider the subscription price as an indication of value of the Company or our common stock. You should obtain a current quote for our common stock before exercising your subscription rights and make your own assessment of our business and financial condition, our prospects for the future, and the terms of the rights offering.
Determinations Regarding the Exercise of Your Subscription Rights We will decide all questions concerning the timeliness, validity, form and eligibility of the exercise of your subscription rights and any such determinations by us will be final and binding. We, in our sole discretion, may waive, in any particular instance, any defect or irregularity, or permit, in any particular instance, a defect or irregularity to be corrected within such time as we may determine. We will not be entitled: | ·
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| | receive notice as stockholders with respect to any meetingrequired to make uniform determinations in all cases. We may reject the exercise of stockholders for the election of our directors or any other matter; or
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| | exercise any rights as stockholders of us.
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DESCRIPTION OF THE DEBT SECURITIES
The debt securities may be either secured or unsecured and will either be our senior debt securities or our subordinated debt securities. The debt securities will be issued under one or more separate indentures between us and a trustee to be specified in an accompanying prospectus supplement. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under a subordinated indenture. Together, the senior indenture and the subordinated indenture are called indentures in this description. This prospectus, together with the applicable prospectus supplement, will describe the terms of a particular series of debt securities.
The following is a summary of selected provisions and definitions of the indentures and debt securities to which any prospectus supplement may relate. The summary of selected provisions of the indentures and the debt securities appearing below is not complete and is subject to, and qualified entirely by reference to, all of the provisions of the applicable indenture and certificates evidencing the applicable debt securities. For additional information, you should look at the applicable indenture and the certificate evidencing the applicable debt security that is filed as an exhibit to the registration statement that includes the prospectus. In this description of the debt securities, the words “we,” “us,” or “our” refer only to Pulse Biosciences, Inc. and not to any of your subscription rights because of any defect or irregularity. We will not accept any exercise of subscription rights until all irregularities have been waived by us or cured by you within such time as we decide, in our subsidiaries, unless we expressly state or the context otherwise requires.
The following description sets forth selected general terms and provisions of the applicable indenture and debt securities to which any prospectus supplement may relate. Other specific terms of the applicable indenture and debt securities will be described in the applicable prospectus supplement. If any particular terms of the indenture or debt securities described in a prospectus supplement differ from anysole discretion. Our interpretations of the terms described below, thenand conditions of the terms described belowrights offering will be deemedfinal and binding. Neither we, nor the subscription agent, will be under any duty to have been superseded by that prospectus supplement.
General
Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securitiesnotify you of any series.
We are not limited as to the amountdefect or irregularity in connection with your submission of debt securities we may issue under the indentures. Unless otherwise provided in a prospectus supplement, a series of debt securities may be reopened to issue additional debt securities of such series.
The prospectus supplement relating to a particular series of debt securities will set forth:
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| | whether the debt securities are senior or subordinated;
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| | any limit on the aggregate principal amount;
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| | the person who shall be entitled to receive interest, if other than the record holder on the record date;
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| | the interest rate or rates, which may be fixed or variable, if any, the date from which interest will accrue, the interest payment datessubscription rights certificates and the regular record dates, or the method for calculating the dates and rates;
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| | the place where payments may be made;
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| | any mandatory or optional redemption provisions or sinking fund provisions and any applicable redemption or purchase prices associated with these provisions;
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| | if issued other than in denominations of U.S. $1,000 or any multiple of U.S. $1,000, the denominations in which the debt securities shall be issuable;
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| | if applicable, the method for determining how the principal, premium, if any, or interest will be calculated by reference to an index or formula;
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| | if other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable and whether we or a holder may elect payment to be made in a different currency;
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| | the portion of the principal amount that will be payable upon acceleration of maturity, if other than the entire principal amount;
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| | if the principal amount payable at stated maturity will not be determinable as of any date prior to stated maturity, the amount or method for determining the amount which will be deemed to be the principal amount;
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| | if applicable, whether the debt securities shall be subject to the defeasance provisions described below under “Satisfaction and discharge; defeasance” or such other defeasance provisions specified in the applicable prospectus supplement for the debt securities;
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| | any conversion or exchange provisions;
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| | whether the debt securities will be issuable in the form of a global security;
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| | the deletion, addition or change in any event of default;
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| | any change or modification to the subordination provisions applicable to the subordinated debt securities if different from those described below under “Subordinated debt securities;”
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| | any deletion, addition or change in the covenants set forth in the indenture;
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| | any paying agents, authenticating agents, security registrars or other agents for the debt securities, if other than the trustee;
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| | any provisions relating to any security provided for the debt securities, including any provisions regarding the circumstances under which collateral may be released or substituted;
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| | any provisions relating to guaranties for the securities and any circumstances under which there may be additional obligors;
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| | any provisions granting special rights to holders when a specified event occurs;
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| | any special tax provisions that apply to the debt securities;
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| | with respect to any debt securities that do not bear interest, the dates for certain required reports to the applicable trustee;
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| | any and all additional, eliminated or changed terms that will apply to the debt securities; and
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| | any other terms of such debt securities.
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Unless otherwise specified in the prospectus supplement, the debt securities will be registered debt securities. Debt securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at time of issuance is below market rates. The U.S. federal income tax considerations applicable to debt securities sold at a discount will be described in the applicable prospectus supplement.
Exchange and transfer
Debt securities may be transferred or exchanged at the office of the security registrar or at the office of any transfer agent designated by us.
We will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other governmental charges associated with any transfer or exchange.
In the event of any partial redemption of debt securities of any series, we will not be liable for failure to notify you of any defect or irregularity. We reserve the right to reject your exercise of subscription rights if your exercise is not in accordance with the terms of the rights offering or in proper form. We will also not accept the exercise of your subscription rights if our issuance of shares of our common stock to you could be deemed unlawful under applicable law.
No Revocation or Change Once you submit the form of rights certificate to exercise any subscription rights, you may not revoke or change your exercise or request a refund of monies paid. All exercises of rights are irrevocable, even if you subsequently learn information about us that you consider to be unfavorable. You should not exercise your rights unless you are certain that you wish to purchase additional shares of our common stock at the subscription price. Non-Transferability of the Rights The subscription rights granted to you are non-transferable and, therefore, may not be assigned, gifted, purchased, sold or otherwise transferred to anyone else. Notwithstanding the foregoing, you may transfer your rights TABLE OF CONTENTS as required to:by operation of law; for example, a transfer of rights to the estate of the recipient upon the death of the recipient would be permitted. If the rights are transferred as permitted, evidence satisfactory to us that the transfer was proper must be received by us prior to the expiration date. Uncertificated Shares of Common Stock All shares of our common stock that you purchase in the rights offering will be issued in book-entry, or uncertificated, form. When issued, the shares will be registered in the name of the subscription rights holder of record. As soon as practicable after the expiration of the rights offering, the subscription agent will arrange for issuance to each subscription rights holder of record that has validly exercised its subscription rights the shares of common stock purchased in the rights offering. Subject to state securities laws and regulations, we have the discretion to delay distribution of any shares you may have elected to purchase by exercise of your rights in order to comply with state securities laws. Validity of Subscriptions | ·
| | issue, register the transfer of, or exchange, any debt security of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption and ending at the close of business on the day of the mailing; or
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| | register the transfer of or exchange any debt security of that series selected for redemption, in whole or in part, except the unredeemed portion being redeemed in part.
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We will appointresolve all questions regarding the trusteevalidity and form of the exercise of your subscription rights, including time of receipt and eligibility to participate in the rights offering. Our determination will be final and binding. Once made, subscriptions and directions are irrevocable, and we will not accept any alternative, conditional or contingent subscriptions or directions. We reserve the absolute right to reject any subscriptions or directions not properly submitted or the acceptance of which would be unlawful. You must resolve any irregularities in connection with your subscriptions before the subscription period expires, unless waived by us in our sole discretion. Neither the subscription agent nor we shall be under any duty to notify you or your representative of defects in your subscriptions. A subscription will be considered accepted, subject to our right to cancel the rights offering, only when a properly completed and duly executed subscription rights certificate and any other required documents and payment of the full subscription amount have been received by the subscription agent (and any payment by uncertified personal check has cleared) and any defects or irregularities therein waived by us. Our interpretations of the terms and conditions of the rights offering will be final and binding. Rights of Subscribers You will have no rights as a stockholder with respect to shares you subscribe for in the initial security registrar. Any transfer agent, in additionrights offering until your account, or your account at your custodian bank, broker, dealer or other nominee, is credited with such shares. You will have no right to revoke your subscriptions after you deliver your completed rights certificate, subscription payment, as provided herein, and any other required documents to the security registrar initially designatedsubscription agent. Foreign Stockholders and Stockholders with Army Post Office or Fleet Post Office Addresses The subscription agent will not mail rights certificates to you if you are a stockholder whose address is outside the United States or if you have an Army Post Office or a Fleet Post Office address. Instead, we will have the subscription agent hold the subscription rights certificates for your account. To exercise your rights, you must notify the subscription agent prior to 11:00 a.m., Eastern Time, at least three (3) business days prior to the expiration date, and establish to the satisfaction of the subscription agent that it is permitted to exercise your subscription rights under applicable law. If you do not follow these procedures by us,such time, your rights will expire and will have no value. Limitation on Exercise of Basic Subscription Right and Over-Subscription Right In no event may a stockholder exercise subscription and over-subscription rights to the extent that any such exercise would result in the stockholder owning more than 49.95% of our issued and outstanding common stock after giving effect to such stockholder’s purchase under the basic subscription right and the over-subscription right. See also “Limitation on the Purchase of Shares.” No Board of Directors Recommendation An investment in shares of our common stock must be made according to your evaluation of your own best interests and after considering all of the information herein, including the “Risk Factors” section beginning on page 16 of this prospectus. Neither we nor our board of directors are making any recommendation regarding whether you should exercise your subscription rights. TABLE OF CONTENTS Purchase Commitments Robert W. Duggan, our chairman of our board of directors, and the beneficial owner of approximately 35% of our outstanding common stock prior to this rights offering, has indicated that he intends to exercise all of his basic subscription rights pursuant to the rights offering in amount not less than $15.6 million, but has not made any formal binding commitment to do so. Shares of Common Stock Outstanding After the Rights Offering Based on the [•] shares of our common stock currently outstanding, and the potential that Pulse Biosciences may issue as many as [•] shares pursuant to this rights offering, [•] shares of our common stock may be issued and outstanding following the rights offering, which represents an increase in the number of outstanding shares of our common stock of approximately [•]%. Fees and Expenses Neither we, nor the subscription agent, will charge a brokerage commission or a fee to subscription rights holders for exercising their rights. However, if you exercise your subscription rights through a custodian bank, broker, dealer or nominee, you will be namedresponsible for any fees charged by your custodian bank, broker, dealer or nominee. Questions About Exercising Subscription Rights If you have any questions or require assistance regarding the method of exercising your subscription rights or requests for additional copies of this document or any document mentioned herein, you should contact the subscription agent at the address and telephone number set forth above under “— Delivery of Subscription Materials and Payment.” Other Matters Pulse Biosciences is not making the rights offering in any state or other jurisdiction in which it is unlawful to do so, nor is Pulse Biosciences distributing or accepting any offers to purchase any shares of our common stock from subscription rights holders who are residents of those states or of other jurisdictions or who are otherwise prohibited by federal or state laws or regulations to accept or exercise the prospectus supplement. Wesubscription rights. Pulse Biosciences may designate additional transfer agentsdelay the commencement of the rights offering in those states or change transfer agentsother jurisdictions, or change the officeterms of the transfer agent. However, we will be required to maintain a transfer agent in each place of payment for the debt securities of each series. Global securities
The debt securities of any series may be represented,rights offering, in whole or in part, by one or more global securities. Each global security will:
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| | be deposited with the depositary or nominee or custodian; and
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| | bear any required legends.
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No global security may be exchanged in whole or in part for debt securities registered in the name of any person other than the depositary or any nominee unless:
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| | an event of default is continuing with respect to the debt securities of the applicable series; or
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| | any other circumstance described in a prospectus supplement has occurred permitting or requiring the issuance of any such security.
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As long as the depositary, or its nominee, is the registered owner of a global security, the depositary or nominee will be considered the sole owner and holder of the debt securities represented by the global security for all purposes under the indentures. Except in the above limited circumstances, owners of beneficial interests in a global security will not be:
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| | entitled to physical delivery of certificated debt securities; or
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| | considered to be holders of those debt securities under the indenture.
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Payments on a global security will be made to the depositary or its nominee as the holder of the global security. Some jurisdictions have laws that require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may impair the ability to transfer beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests in a global security will be limited to participants and to persons that may hold beneficial interests through participants. The depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities represented by the global security to the accounts of its participants.
Ownership of beneficial interests in a global security will be shown on and effected through records maintained by the depositary, with respect to participants’ interests, or any participant, with respect to interests of persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a global security will be subject to policies and procedures of the depositary. The depositary policies and procedures may change from time to time. Neither any trustee nor we will have any responsibility or liability for the depositary’s or any participant’s records with respect to beneficial interests in a global security.
Payment and paying agents
Unless otherwise indicated in a prospectus supplement, the provisions described in this paragraph will apply to the debt securities. Payment of interest on a debt security on any interest payment date will be made to the person in whose name the debt security is registered at the close of business on the regular record date. Payment on debt securities of a particular series will be payable at the office of a paying agent or paying agents designated by us. However, at our option, we may pay interest by mailing a check to the record holder. The trustee will be designated as our initial paying agent.
We may also name any other paying agents in a prospectus supplement. We may designate additional paying agents, change paying agents or change the office of any paying agent. However, we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent for payment on any debt security that remain unclaimed for a period ending the earlier of:
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| | 10 business days prior to the date the money would be turned over to the applicable state; or
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| | at the end of two years after such payment was due, will be repaid to us thereafter. The holder may look only to us for such payment.
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No protection in the event of a change of control
Unless otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction, whether or not such transaction results in a change in control.
Covenants
Unless otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will not contain any financial or restrictive covenants.
Consolidation, merger and sale of assets
Unless we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, we may not consolidate with or merge into any other person (other than one of our subsidiaries), in a transaction in which we are not the surviving corporation, or convey, transfer or lease our properties and assets substantially as an entirety to, any person (other than one of our subsidiaries), unless:
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| | the successor entity, if any, is a U.S. corporation, limited liability company, partnership, trust or other business entity;
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| | the successor entity assumes our obligations on the debt securities and under the indentures;
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| | immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and
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| | certain other conditions specified in the indenture are met.
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Events of default
Unless we indicate otherwise in a prospectus supplement, the following will be events of default for any series of debt securities under the indentures:
(1)we fail to pay principal of or any premium on any debt security of that series when due;
(2)we fail to pay any interest on any debt security of that series for 30 days after it becomes due;
(3)we fail to deposit any sinking fund payment when due;
(4)we fail to perform any other covenant in the indenture and such failure continues for 90 days after we are given the notice required in the indentures; and
(5)certain events involving our bankruptcy, insolvency or reorganization.
Additional or different events of default applicable to a series of debt securities may be described in a prospectus supplement. An event of default of one series of debt securities is not necessarily an event of default for any other series of debt securities.
The trustee may withhold notice to the holders of any default, except defaults in the payment of principal, premium, if any, interest, any sinking fund installment on, or with respect to any conversion right of, the debt securities of such series. However, the trustee must consider it to be in the interest of the holders of the debt securities of such series to withhold this notice.
Unless we indicate otherwise in a prospectus supplement, if an event of default, other than an event of default described in clause (5) above, shall occur and be continuing with respect to any series of debt securities, either the trustee or the holders of at least 25 percent in aggregate principal amount of the outstanding securities of that series may declare the principal amount and premium, if any, of the debt securities of that series, or if any debt securities of that series are original issue discount securities, such other amount as may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid interest, if any, thereon, to be due and payable immediately.
Unless we indicate otherwise in a prospectus supplement, if an event of default described in clause (5) above shall occur, the principal amount and premium, if any, of all the debt securities of that series, or if any debt securities of that series are original issue discount securities, such other amount as may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid interest, if any, thereon, will automatically become immediately due and payable. Any payment by us on the subordinated debt securities following any such acceleration will be subject to the subordination provisions described below under “Subordinated debt securities.”
Notwithstanding the foregoing, each indenture will provide that we may, at our option, elect that the sole remedy for an event of default relating to our failure to comply with our obligations described under the section entitled “Reports” below or our failureorder to comply with the securities law or other legal requirements of Section 314(a)(1)those states or other jurisdictions. Subject to state securities laws and regulations, Pulse Biosciences also has the discretion to delay allocation and distribution of any shares you may elect to purchase by exercise of your subscription rights in order to comply with state securities laws. Pulse Biosciences may decline to make modifications to the terms of the Trust Indenture Actrights offering requested by those states or other jurisdictions, in which case, if you are a resident in one of those states or jurisdictions or if you are otherwise prohibited by federal or state laws or regulations from accepting or exercising the subscription rights you will fornot be eligible to participate in the first 360 days after the occurrencerights offering.
TABLE OF CONTENTS MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES The following summary does not purport to be a complete analysis of such an event of default consist exclusivelyall of the right to receive additional interest on the relevant series of debt securities at an annual rate equal to (i) 0.25% of the principal amount of such series of debt securities for the first 180 days after the occurrence of such event of defaultpotential United States federal income tax considerations, and (ii) 0.50% of the principal amount of such series of debt securities from the 181st day to, anddoes not address any tax consequences arising under any state, local or foreign tax laws or any other United States federal tax laws, including the 360th day after the occurrence of such event of default, which we call “additional interest.” If we so elect, the additional interest will accrue on all outstanding debt securities from and including the date on which such event of default first occurs until such violation is curedUnited States federal estate or waived and shall be payable on each relevant interest payment dategift tax laws. This discussion applies only to holders that are United States persons (as defined below) and does not address all aspects of record on the regular record date immediately preceding the interest payment date. On the 361st day after such eventUnited States federal income taxation that may be relevant to holders in light of default (if such violation is not curedtheir particular circumstances or waived prior to such 361st day), the debt securities willholders who may be subject to accelerationspecial tax treatment under the Code, including, without limitation, holders who are dealers in securities or foreign currency, foreign persons, certain former citizens or long-term residents of the United States, insurance companies, tax-exempt organizations, banks, financial institutions or broker-dealers, holders who hold our common stock as provided above. Inpart of a hedge, straddle, conversion or other risk reduction transaction, or holders who acquired our common stock pursuant to the event we doexercise of compensatory stock options or otherwise as compensation. This summary is of a general nature only and is not electintended to pay additional interest upon any such eventconstitute a complete analysis of default in accordance with this paragraph, the debt securities will be subject to acceleration as provided above. In order to elect to pay the additional interest as the sole remedy during the first 360 days after the occurrence of any event of defaultall tax consequences relating to the failurereceipt, exercise and expiration of the subscription rights. It is not intended to comply withconstitute, and should not be construed to constitute, legal or tax advice to any particular holder. This discussion neither binds nor precludes the reporting obligationsInternal Revenue Service (“IRS”) from adopting a position contrary to, or otherwise challenging, the positions addressed in accordance withthis prospectus, and we cannot assure you that such a contrary position could not be asserted successfully by the preceding paragraph, we must notifyIRS or adopted by a court if the position or matter was litigated. We have not sought, and will not seek, either (i) a ruling from the IRS or (ii) an opinion from legal counsel, in either instance regarding the tax considerations discussed herein. Holders should consult their own tax advisors as to the tax consequences in their particular circumstances.
For purposes of this discussion, a “United States person” means a beneficial owner of subscription rights that is: An individual who is a citizen or resident of the United States; A corporation (or entity treated as a corporation for United States federal income tax purposes) created or organized, or treated as created or organized, in or under the laws of the United States, any state thereof or the District of Columbia; An estate whose income is subject to United States federal income tax regardless of its source; or A trust (i) if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all holderssubstantial decisions of debt securitiesthe trust, or (ii) that has a valid election in effect under applicable Treasury Regulations to be treated as a United States person. If a partnership (including any entity treated as a partnership for United States federal income tax purposes) receives the subscription rights or holds the stock received upon exercise of the subscription right, the tax treatment of a partner in such partnership generally will depend upon the status of the partner and the trusteeactivities of the partnership. Such a partner and paying agent of such election priorthe partnership are urged to consult their own tax advisors as to the closeUnited States federal income tax consequences of business onreceiving the first business day followingsubscription rights and exercising (or allowing to expire) the date onsubscription right. -25-EACH HOLDER OF SHARES OF OUR COMMON STOCK IS STRONGLY URGED TO CONSULT SUCH HOLDER’S OWN TAX ADVISORS REGARDING THE SPECIFIC FEDERAL, STATE, LOCAL AND NON-UNITED STATES INCOME AND OTHER TAX CONSIDERATIONS OF THE RECEIPT AND EXERCISE OF THE SUBSCRIPTION RIGHTS AND THE RECEIPT, OWNERSHIP AND DISPOSITION OF OUR STOCK.
which such event of default occurs. Upon our failure to timely give such notice or pay the additional interest, the debt securities will be immediately subject to acceleration as provided above.
After acceleration, the holders of a majority in aggregate principal amount of the outstanding securities of that series may, under certain circumstances, rescind and annul such acceleration if all events of default, other than the non-payment of accelerated principal, or other specified amounts or interest, have been cured or waived.
Other than the duty to act with the required care during an event of default, the trustee will not be obligated to exercise any of its rights or powers at the request of the holders unless the holders shall have offeredUnited States Federal Income Tax Considerations Applicable to the trustee reasonable indemnity. Generally,Receipt of Subscription Rights
Although the holdersauthorities governing transactions such as this rights offering are complex and unclear in certain respects, we believe and intend to take the position that the distribution of subscription rights to a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee. A holder of debt securities of any series will not have any right to institute any proceeding under the indentures, or for the appointment of a receiver or a trustee, or for any other remedy under the indentures, unless:
(1)the holder has previously given to the trustee written notice of a continuing event of default with respect to the debt securitiessuch holder’s shares of that series;
(2)the holders of at least 25 percent in aggregate principal amount of the outstanding debt securities of that series have made a written request and have offered reasonable indemnity to the trustee to institute the proceeding; and
(3)the trustee has failed to institute the proceeding and has not received direction inconsistent with the original request from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series within 60 days after the original request.
Holders may, however, sue to enforce the payment of principal, premium or interest on any debt security on or after the due date or to enforce the right, if any, to convert any debt security (if the debt security is convertible) without following the procedures listed in (1) through (3) above.
We will furnish the trustee an annual statement from our officers as to whether or not we are in default in the performance of the conditions and covenants under the indenture and, if so, specifying all known defaults.
Modification and waiver
Unless we indicate otherwise in a prospectus supplement, the applicable trustee and we may make modifications and amendments to an indenture with the consent of the holders of a majority in aggregate principal amount of the outstanding securities of each series affected by the modification or amendment.
We may also make modifications and amendments to the indenturescommon stock should generally be treated, for the benefit of holders without their consent, for certain purposes including, but not limited to:
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| | to evidence the succession of another person to Pulse Biosciences, or successive successions, and the assumption by any such successor of the covenants of Pulse Biosciences in the indentures;
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| | adding covenants under the indentures;
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| | adding events of default under the indentures;
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| | making certain changes to facilitate the issuance of the debt securities;
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| | to add to, change or eliminate any of the provisions of the indentures or more series of securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such security with respect to such provision or (B) shall become effective only when there is no such security outstanding;
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| | securing the debt securities;
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| | providing for guaranties of, or additional obligors on, the debt securities;
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| | to establish the form or term of debt securities as permitted by the indentures;
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| | providing for a successor trustee or additional trustees;
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| | conforming the indenture to the description of the debt securities set forth in this prospectus or the accompanying prospectus supplement;
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| | curing any ambiguity, defect or inconsistency; provided that such action shall not adversely affect the interest of the holders in any material respect;
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| | permitting or facilitating the defeasance and discharge of the debt securities;
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| | make such other provisions in regard to matters or questions arising under the indentures or under any supplemental indentures as our board of directors may deem necessary or desirable, and which does not in each case adversely affect the interests of the holders of the debt securities of a series; and
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| | comply with requirements of the SEC in order to effect or maintain the qualifications of the indentures under the Trust Indenture Act of 1939, as amended.
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However, neither the trustee nor we may make any modification or amendment without the consent of the holder of each outstanding security of that series affected by the modification or amendment if such modification or amendment would:
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| | change the stated maturity of the principal of, or any installment of principal or interest on, any debt security;
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| | reduce the principal, premium, if any, or interest on any debt security or any amount payable upon redemption or repurchase, whether at our option or the option of any holder, or reduce the amount of any sinking fund payments;
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| | reduce the principal of an original issue discount security or any other debt security payable on acceleration of maturity;
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| | change the place of payment or the currency in which any debt security is payable;
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| | impair the right to enforce any payment after the stated maturity or redemption date;
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| | if subordinated debt securities, modify the subordination provisions in a materially adverse manner to the holders;
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| | adversely affect the right to convert any debt security if the debt security is a convertible debt security; or
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| | change the provisions in the indenture that relate to modifying or amending the indenture.
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Satisfaction and discharge; defeasance
We may be discharged from our obligations on the debt securities, subject to limited exceptions, of any series that have matured or will mature or be redeemed within one year if we deposit enough money with the trustee to pay all the principal, interest and any premium due to the stated maturity date or redemption date of the debt securities.
Each indenture contains a provision that permits us to elect either or both of the following:
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| | We may elect to be discharged from all of our obligations, subject to limited exceptions, with respect to any series of debt securities then outstanding. If we make this election, the holders of the debt securities of the series will not be entitled to the benefits of the indenture, except for the rights of holders to receive payments on debt securities or the registration of transfer and exchange of debt securities and replacement of lost, stolen or mutilated debt securities.
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| | We may elect to be released from our obligations under some or all of any financial or restrictive covenants applicable to the series of debt securities to which the election relates and from the consequences of an event of default resulting from a breach of those covenants.
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To make either of the above elections, we must irrevocably deposit in trust with the trustee enough money to pay in full the principal, interest and premium on the debt securities. This amount may be made in cash and/or U.S. government obligations or, in the case of debt securities denominated in a currency other than U.S. dollars, cash in the currency in which such series of securities is denominated and/or foreign government obligations. As a condition to either of the above elections, for debt securities denominated in U.S. dollars we must deliver to the trustee an opinion of counsel that the holders of the debt securities will not recognize income, gain or loss for U.S.United States federal income tax purposes, as a resultnon-taxable distribution.
However, the general rule regarding nonrecognition is subject to certain exceptions, including if receipt by a holder of subscription rights is part of a “disproportionate distribution.” A “disproportionate distribution” is a distribution or a series of distributions, including deemed distributions, that has the effect of the action.receipt of cash or TABLE OF CONTENTS other property by some holders and an increase in the proportionate interest of other holders in our assets or earnings and profits. During the last 36 months, we have not made any distributions of cash or other property with respect to debt securitiesour stock, nor do we have any current intention of making any series that are denominated in a currency other than United States dollars, “foreign government obligations” means: | ·
| | direct obligations of the government that issued or caused to be issued the currency in which such securities are denominated and for the payment of which obligations its full faith and credit is pledged, or, with respect to debt securities of any series which are denominated in Euros, direct obligations of certain members of the European Union for the payment of which obligations the full faith and credit of such members is pledged, which in each case are not callable or redeemable at the option of the issuer thereof; or
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| | obligations of a person controlled or supervised by or acting as an agency or instrumentality of a government described in the bullet above the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which are not callable or redeemable at the option of the issuer thereof.
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Reports
The indentures provide that any reportsdistributions with respect to our stock. Currently, our common stock is our sole outstanding class of stock, and we have no current intention of issuing another class of stock or documentsconvertible debt. However, the fact that we file withhave outstanding options, warrants and similar equity-based awards could cause, under certain circumstances that cannot currently be predicted, the SECreceipt of subscription rights pursuant to Section 13 or 15(d)this rights offering to be part of a disproportionate distribution. The Company intends to take the position that the outstanding options, warrants and similar equity-based awards do not cause the subscription rights issued pursuant to this rights offering to be part of a disproportionate distribution, but there can be no assurances in this regard.
Our position regarding the tax-free treatment of the Exchange Act willreceipt of subscription rights is not binding on the IRS or the courts. If this position is finally determined to be filed withincorrect, whether on the trustee within 15 days after the same is filed with the SEC. Documents filed by us with the SEC via the EDGAR system will be deemed filed with the trustee as of the time such documents are filed with the SEC. Notices
Notices to holders will be given by mail to the addresses of the holders in the security register.
Governing law
The indentures and the debt securities will be governed by, and construed under, the laws of the State of New York.
No personal liability of directors, officers, employees and stockholders
No incorporator, stockholder, employee, agent, officer, director or subsidiary of ours will have any liability for any obligations of ours, or because of the creation of any indebtedness under the debt securities, the indentures or supplemental indentures. The indentures providebasis that all such liability is expressly waived and released as a condition of, and as a consideration for, the execution of such indentures and the issuance of the debt securities.
Regardingsubscriptions rights is a “disproportionate distribution” or otherwise, the trustee
The indentures limit the rightfair market value of the trustee, should it becomesubscription rights would be taxable to holders of our creditor,common stock as a dividend to obtain paymentthe extent of claims or secure its claims.
The trustee willthe holder’s pro rata share of our current and accumulated earnings and profits, if any, with any excess being treated as a return of capital to the extent of the holder’s basis in shares of our common stock and thereafter as capital gain. Although no assurance can be permitted to engage in certain other transactions with us. However, if the trustee acquires any conflicting interest, and there is a default under the debt securities of any series for whichgiven, it is trustee,anticipated that we will not have current and accumulated earnings and profits through the trustee must eliminate the conflict or resign.
Subordinated debt securitiesend of 2018.
The following provisions will be applicablediscussion assumes that the receipt by a holder of subscription rights with respect to each series of subordinated debt securities, unless otherwise statedsuch holder’s common stock pursuant to this rights offering is non-taxable for United States federal income tax purposes. Tax Basis in the prospectus supplement relating to that seriesSubscription Rights A holder’s tax basis in its subscription rights will depend on the relative fair market value of subordinated debt securities.The indebtedness evidencedthe subscription rights received by the subordinated debt securities of any series is subordinated, to the extent provided in the subordinated indenturesuch holder and the applicable prospectus supplement, to the prior payment in full, in cash or other payment satisfactory to the holders of senior debt, of all senior debt, including any senior debt securities.
Upon any distribution of our assets upon any dissolution, winding up, liquidation or reorganization, whether voluntary or involuntary, marshalling of assets, assignment for the benefit of creditors, or in bankruptcy, insolvency, receivership or other similar proceedings, payments on the subordinated debt securities will be subordinated in right of payment to the prior payment in full in cash or other payment satisfactory to holders of senior debt of all senior debt.
In the event of any acceleration of the subordinated debt securities of any series because of an event of default with respect to the subordinated debt securities of that series, holders of any senior debt would be entitled to payment in full in cash or other payment satisfactory to holders of senior debt of all senior debt before the holders of subordinated debt securities are entitled to receive any payment or distribution.
In addition, the subordinated debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, including trade payables and lease obligations. This occurs because our right to receive any assets of our subsidiaries upon their liquidation or reorganization, and your right to participate in those assets, will be effectively subordinated to the claims of that subsidiary’s creditors, including trade creditors, except to the extent that we are recognized as a creditor ofcommon stock owned by such subsidiary. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of the subsidiary and any indebtedness of the subsidiary senior to us.
We are required to promptly notify holders of senior debt or their representatives under the subordinated indenture if payment of the subordinated debt securities is accelerated because of an event of default.
Under the subordinated indenture, we may also not make payment on the subordinated debt securities if:
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| | a default in our obligations to pay principal, premium, if any, interest or other amounts on our senior debt occurs and the default continues beyond any applicable grace period, which we refer to as a payment default; or
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| | any other default occurs and is continuing with respect to designated senior debt that permits holders of designated senior debt to accelerate its maturity, which we refer to as a non-payment default, and the trustee receives a payment blockage notice from us or some other person permitted to give the notice under the subordinated indenture.
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We will resume payments on the subordinated debt securities:
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| | in case of a payment default, when the default is cured or waived or ceases to exist, and
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| | in case of a nonpayment default, the earlier of when the default is cured or waived or ceases to exist or 179 days after the receipt of the payment blockage notice.
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No new payment blockage period may commence on the basis of a nonpayment default unless 365 days have elapsed from the effectiveness of the immediately prior payment blockage notice. No nonpayment default that existed or was continuing on the date of delivery of any payment blockage notice to the trustee shall be the basis for a subsequent payment blockage notice.
As a result of these subordination provisions, in the event of our bankruptcy, dissolution or reorganization, holders of senior debt may receive more, ratably, and holders of the subordinated debt
securities may receive less, ratably, than our other creditors. The subordination provisions will not prevent the occurrence of any event of default under the subordinated indenture.
The subordination provisions will not apply to payments from money or government obligations held in trust by the trustee for the payment of principal, interest and premium, if any, on subordinated debt securities pursuant to the provisions described under the section entitled “Satisfaction and discharge; defeasance,” if the subordination provisions were not violatedholder at the time the moneysubscription rights are distributed. If either (i) the fair market value of the subscription rights on the date such subscription rights are distributed is equal to at least 15% of the fair market value on such date of the common stock with respect to which the subscription rights are received or government obligations were deposited into trust.
If(ii) the trustee or any holder receives any payment that should not have been made to themelects, in contravention of subordination provisions before all senior debt is paid in full in cash or other payment satisfactory to holders of senior debt, then such payment will be held in trustits United States federal income tax return for the holders of senior debt.
Senior debt securities will constitute senior debt under the subordinated indenture.
Additional or different subordination provisions may be described in a prospectus supplement relating to a particular series of debt securities.
Definitions
“Designated senior debt” means our obligations under any particular senior debttaxable year in which the instrument creating or evidencingsubscription rights are received, to allocate part of its tax basis in such common stock to the same or the assumption or guarantee thereof, or related agreements or documents to which we are a party, expressly provides that such indebtedness shall be designated senior debt for purposessubscription rights, then upon exercise of the subordinated indenture. The instrument, agreement or other document evidencing any designated senior debt may place limitationssubscription rights, the holder’s tax basis in the common stock will be allocated between the common stock and conditions on the right of such senior debtsubscription rights in proportion to exercise the rights of designated senior debt.
“Indebtedness” means the following, whether absolute or contingent, secured or unsecured, due or to become due, outstandingtheir respective fair market values on the date the subscription rights are distributed. If the subscription rights received by a holder have a fair market value that is less than 15% of the indenturefair market value of the common stock owned by such holder at the time the subscription rights are distributed, the holder’s tax basis in its subscription rights will be zero unless the holder elects to allocate its adjusted tax basis in the common stock owned by such holder in the manner described in the previous sentence. The fair market value of the subscription rights on the date the subscription rights are received is uncertain, and we have not obtained, and do not intend to obtain, an appraisal of the fair market value of the subscription rights as of that date. Fair market value is defined generally as the price at which property would hypothetically change hands between a willing buyer and a willing seller, where neither is under any compulsion to buy or sell. Fair market value is a factual determination.
A holder that allows the subscription rights received in the rights offering to expire will not recognize any gain or loss, and the tax basis in the common stock owned by such holder with respect to which such subscription rights were distributed will be equal to the tax basis in such common stock immediately before the receipt of the subscription rights in the rights offering. A holder will not recognize any gain or loss upon the exercise of the subscription rights received in the rights offering. The tax basis in the common stock acquired through exercise of the subscription rights will equal the sum of the subscription price for such series of securities or thereafter created, incurred or assumed: | ·
| | our indebtedness evidenced by a credit or loan agreement, note, bond, debenture or other written obligation;
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| | all of our obligations for money borrowed;
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| | all of our obligations evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties or assets of any kind,
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| | as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles, or
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| | as lessee under leases for facilities, capital equipment or related assets, whether or not capitalized, entered into or leased for financing purposes;
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| | all of our obligations under interest rate and currency swaps, caps, floors, collars, hedge agreements, forward contracts or similar agreements or arrangements;
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| | all of our obligations with respect to letters of credit, bankers’ acceptances and similar facilities, including reimbursement obligations with respect to the foregoing;
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| | all of our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business;
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| | all obligations of the type referred to in the above clauses of another person, the payment of which, in either case, we have assumed or guaranteed, for which we are responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise, or which are secured by a lien on our property; and
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| | renewals, extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation issued in exchange for, any such indebtedness or obligation described in the above clauses of this definition.
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“Senior debt” means the principal of, premium,common stock and the holder’s tax basis, if any, in the rights as described above. The holding period for the common stock acquired through exercise of the subscription rights will begin on the date the subscription rights are exercised.
Information Reporting and interest,Backup Withholding United States backup withholding (currently at a rate of 24%) is imposed upon certain distributions (or deemed distributions) to persons who fail (or are unable) to furnish the information required pursuant to United States information reporting requirements. Distributions (or deemed distributions or similar transactions) to a holder will TABLE OF CONTENTS generally be exempt from backup withholding, provided the holder meets applicable certification requirements, including all interest accruing subsequent(i) providing the Company with such holder’s U.S. taxpayer identification number (e.g., an individual’s social security number or individual taxpayer identification number, or an entity’s employer identification number, each a “TIN”) or (ii) otherwise establishing an exemption (e.g., an exemption from backup withholding as a corporate payee), in each instance on a properly filled out IRS Form W-9, certifying under penalties of perjury that, among others, such TIN or exemption is correct, together with such other certifications as may be required by law. Backup withholding does not represent an additional tax. Any amounts withheld from a payment to a holder under the backup withholding rules will generally be allowed as a credit against such holder’s U.S. federal income tax liability, and may entitle such holder to a refund, provided the required information and returns are timely furnished by such holder to the commencementIRS. AS INDICATED ABOVE, THE FOREGOING DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY AND SHOULD NOT BE VIEWED AS COMPLETE OR COMPREHENSIVE TAX ADVICE. HOLDERS RECEIVING A DISTRIBUTION OF STOCK RIGHTS CONTEMPLATED IN THIS RIGHTS OFFERING AND HOLDERS CONSIDERING THE PURCHASE OF OUR COMMON STOCK BY EXERCISING SUCH STOCK RIGHTS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE UNITED STATES FEDERAL TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE APPLICABILITY AND EFFECT OF STATE, LOCAL AND FOREIGN LAWS TO THEM. TABLE OF CONTENTS PLAN OF DISTRIBUTION We are distributing rights certificates and copies of this prospectus to those persons who were holders of our common stock on [•], 2018, the record date for the rights offering, promptly following the effective date of the registration statement of which this prospectus forms a part. We have not employed any bankruptcybrokers, dealers or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding, and rent payable on orunderwriters in connection with the solicitation or exercise of rights in the rights offering and allno commissions, fees and other amounts payableor discounts will be paid in connection with our indebtedness. However, senior debt shall not include: | ·
| | any debt or obligation if its terms or the terms of the instrument under which or pursuant to which it is issued expressly provide that it shall not be senior in right of payment to the subordinated debt securities or expressly provide that such indebtedness is on the same basis or “junior” to the subordinated debt securities; or
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| | debt to any of our subsidiaries, a majority of the voting stock of which is owned, directly or indirectly, by us.
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“Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by us or by one or morerights offering. While certain of our directors, officers and other subsidiariesemployees may solicit responses from you, those directors, officers and other employees will not receive any commissions or by a combinationcompensation for their services other than their normal compensation, and will not register with the SEC as brokers in reliance on certain safe harbor provisions contained in Rule 3a4-1 under the Exchange Act.
Delivery of usShares As soon as practicable after the record date for the rights offering, we will distribute the rights, rights certificates and our other subsidiaries. For purposescopies of this definition, “voting stock” meansprospectus to individuals who owned shares of common stock on 5:00 p.m., Eastern Time, on [•], 2018. If your shares are held in the name of a custodian bank, broker, dealer or other similar interests which ordinarily hasnominee, then you should send your subscription documents and subscription payment to that record holder. If you are the record holder, then you should send your subscription documents, rights certificate, notice of guaranteed delivery and subscription payment to the subscription agent, Broadridge Corporate Issuer Solutions, Inc., at the following address. If sent by mail, we recommend that you send documents and payments by registered mail, properly insured, with return receipt requested, and that a sufficient number of days be allowed to ensure delivery to the subscription agent. Do not send or have voting power fordeliver these materials to the election of directors, or persons performing similar functions, whether at all times or only so long as no senior class of stock or other interests has or have such voting power by reason of any contingency.Company. By Mail: | By Overnight Delivery: | Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS Re-Organization Dept.
P.O. Box 1317
Brentwood, NY 11717-0718 | Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS IWS
51 Mercedes Way
Edgewood, NY 11717 |
DESCRIPTION OF THE UNITS
We may issue units comprised of one or more ofIn the other classes of securities described in this prospectus in any combination. Each unit will be issued soevent that the holderrights offering is not fully subscribed, holders of the unit is also the holderrights who exercise all of each security included in the unit. Thus, the holder of a unittheir rights pursuant to their basic subscription right will have the opportunity to subscribe for unsubscribed rights pursuant to the over-subscription right. See further the section of this prospectus entitled “The Rights Offering” beginning on page 31.
We have not agreed to enter into any standby or other arrangement to purchase or sell any rights or any of our securities. Robert W. Duggan, our chairman of our board of directors and obligationsthe beneficial owner of a holderapproximately 35% of each included security. The units may be issued under unit agreementsour outstanding common stock prior to bethis rights offering, has indicated that he intends to exercise all of his basic subscription rights pursuant to the rights offering in amount not less than $15.6 million, but has not made any formal binding commitment to do so. We have not entered into any agreements regarding stabilization activities with respect to our securities. If you have any questions, you should contact the information agent at Broadridge Corporate Issuer Solutions, Inc., Attn: BCIS Re-Reorganization Dept., P.O. Box 1317, Brentwood, NY 11717-0718, by telephone at 1-888-789-8409 or by email at shareholder@broadridge.com. We have agreed to pay the subscription agent and information agent a fee plus certain expenses, which we estimate will total approximately $12,000. We estimate that our total expenses in connection with the rights offering will be approximately $390,000. Other than as described herein, we do not know of any existing agreements between us and a unitany stockholder, broker, dealer, underwriter or agent as detailed in the prospectus supplement relating to the units being offered. The prospectus supplement will describe: | ·
| | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately;
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| | a description of the terms of any unit agreement governing the units;
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| | a description of the provisions for the payment, settlement, transfer or exchange of the units;
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| | a discussion of material federal income tax considerations, if applicable; and
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| | whether the units if issued as a separate security will be issued in fully registered or global form.
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The descriptionssale or distribution of the units in this prospectus and in any prospectus supplement are summariesshares of the material provisions of the applicable agreements. These descriptions do not restate those agreements in their entirety and may not contain all the information that you may find useful. We urge you to read the applicable agreements because they, and not the summaries, define your rights as holders of the units. For more information, please review the forms of the relevant agreements, which will be filed with the SEC promptly after the offering of units and will be available as described under the heading “Where You Can Find More Information.”common stock.
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PLAN OF DISTRIBUTION
We may sell the securities offered through this prospectus (1) to or through underwriters or dealers, (2) directly to purchasers, including our affiliates, (3) through agents, or (4) through a combination of any these methods. The securities may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices. The prospectus supplement will include the following information:
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| | the terms of the offering;
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| | the names of any underwriters or agents;
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| | the name or names of any managing underwriter or underwriters;
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| | the purchase price of the securities;
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| | the net proceeds from the sale of the securities;
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| | any delayed delivery arrangements;
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| | any underwriting discounts, commissions and other items constituting underwriters’ compensation;
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| | any initial public offering price;
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| | any discounts or concessions allowed or reallowed or paid to dealers; and
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| | any commissions paid to agents.
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We may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4). Any at-the-market offering will be through an underwriter or underwriters acting as principal or agent for us.
Sale through underwriters or dealers
If underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers. The prospectus supplement will include the names of the principal underwriters the respective amount of securities underwritten, the nature of the obligation of the underwriters to take the securities and the nature of any material relationship between an underwriter and us.
Some or all of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities offered pursuant to this prospectus.
If dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will include the names of the dealers and the terms of the transaction.
Direct sales and sales through agents
We may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or sale of the offered securities and will describe any commissions payable to the agent by us. Unless otherwise indicated in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
Market making, stabilization and other transactions
Unless the applicable prospectus supplement states otherwise, each series of offered securities will be a new issue and will have no established trading market. We may elect to list any series of offered securities on an exchange. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid trading market.
Any underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104 under the Exchange Act, as amended. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
Derivative transactions and hedging
We, the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to
changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings of the securities.
Electronic auctions
We may also make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of electronic bidding or ordering systems for the pricing and allocation of such securities, you should pay particular attention to the description of that system we will provide in a prospectus supplement.
Such electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which such securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant information to assist in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted, and whether a bidder’s individual bids would be accepted, prorated or rejected. For example, in the case of a debt security, the clearing spread could be indicated as a number of “basis points” above an index treasury note. Of course, many pricing methods can and may also be used.
Upon completion of such an electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole or in part on the results of the Internet or other electronic bidding process or auction.
General information
Agents, underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities, including liabilities under the Securities Act. Agents, underwriters and dealers may engage in transactions with or perform services for us in the ordinary course of their businesses.
LEGALLEGAL MATTERS
The validity of the securitiesrights and shares of common stock offered by this prospectus will behave been passed upon by Fennemore Craig, P.C., Reno, Nevada. Certain matters as to New York law will be passed uponfor us by Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA. California. EXPERTSEXPERTS
Gumbiner Savett Inc., independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2016,2017, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Gumbiner Savett Inc.’s report,reports, given on their authority as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge through the Internet. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
We have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed rates, from the SEC at the address listed above. The registration statement and the documents referred to below under “Information Incorporated by Reference” are also available on our website, www.pulsebiosciences.com. We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
INFORMATION INCORPORATEDINCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus certain information we file with it, which means that we can disclose important information by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede information contained in this prospectus and any accompanying prospectus supplement. We incorporate by reference the documents listed below that we have previously filed with the SEC (excluding any portions of any Form 8-K that are not deemed “filed” pursuant to the General Instructions of Form 8-K): | ·
| | our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on March 20, 2017, including the information specifically incorporated by reference into the Annual Report on Form 10-K from our definitive proxy statement on Schedule 14A, filed on April 18, 2017;
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed on March 16, 2018, including the information specifically incorporated by reference into the Annual Report on Form 10-K from our definitive proxy statement on Schedule 14A, filed on April 12, 2018; | ·
| | our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed on May 10, 2017;
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| | our Current Reports on Form 8-K filed January 27, 2017, February 10, 2017, February 21, 2017, April 19, 2017, and May 19, 2017; and
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our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018 and June 30, 2018; | ·
| | the description of our common stock contained in the Registration Statement on Form 8-A relating thereto, including any amendment or report filed for the purpose of updating such description.
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our Current Reports on Form 8-K filed with the SEC on January 29, 2018, April 11, 2018, May 23, 2018, June 18, 2018, and July 31, 2018 (in each case, not including any information furnished under Items 2.02 or 7.01 of Form 8-K, including the related exhibits, which information is not incorporated by reference herein); and the description of our common stock contained in the Registration Statement on Form 8-A relating thereto, including any amendment or report filed for the purpose of updating such description. We also incorporate by reference into this prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the completion or termination of the offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information deemed furnished and not filed with the SEC. Any statements contained in a previously filed document incorporated by reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that statement. This prospectus may contain information that updates, modifies or is contrary to information in one or more of the documents incorporated by reference in this prospectus. You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectus. We will provide to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no cost to the requester, a copy of any and all of the information that is incorporated by reference in this prospectus. Requests for such documents should be directed to: Pulse Biosciences, Inc.
3957 Point Eden Way
Hayward, CaliforniaCA 94545
Attn:
Attention: Chief Financial Officer
TABLE OF CONTENTS
You may also access certain of the documents incorporated by reference in this prospectus through our website at www.pulsebiosciences.com. Except for the specific incorporated documents listed above, no information available on, or that can be accessed through, our website shall be deemed to be incorporated inby reference into this prospectus or the registration statement of which it forms a part. WHERE YOU CAN FIND ADDITIONAL INFORMATION We file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge through the Internet. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We have filed with the SEC a registration statement under the Securities Act of 1933 (the “Securities Act”) relating to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed rates, from the SEC at the address listed above. The registration statement and the documents referred to below under “Information Incorporated by Reference” are also available on our website, www.pulsebiosciences.com. We have not incorporated by reference into this prospectus the information on, or that can be accessed through, our website, and it is not a part of this prospectus, and the inclusion of our website address is an inactive textual reference only.
TABLE OF CONTENTS PART II
INFORMATION NOT REQUIRED IN PROSPECTUS 50,000,000
| $150,000,000
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Units
____________________________
PROSPECTUS
____________________________
, 2017
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Part II
Information Not Required in the Prospectus
Item 14. Other Expenses ofOf Issuance and DistributionAnd Distribution. The following table sets forth the costs and expenses other than underwriting discounts and commissions, payable by the registrant in connection with the sale of the securitiescommon stock being registered | | Securities and Exchange Commission registration fee
| $17,385 | NASDAQ Capital Market listing fee
| *
| Accounting fees and expenses
| *
| Legal fees and expenses
| *
| Printing and engraving
| *
| Fees and expenses of the transfer agent or trustee
| *
| Miscellaneous
| *
| Total
| $ *
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____________________
*To be provided by amendment or as an exhibit to a filing withregistered. All of the amounts shown are estimates except the SEC under Section 13(a), 13(c) or 15(d) of the Exchange Act, as amended.registration fee.
SEC Registration Fee | $ | 5,454.00 | | Subscription and Information Agent Fees and Expenses | | 12,000.00 | | Legal Fees and Expenses | | 325,000.00 | | Accounting Fees and Expenses | | 7,500.00 | | Printing and Mailing Expenses | | 30,000.00 | | Miscellaneous Expenses | | 10,046.00 | | Total | $ | 390,000.00 | |
Item 15. Indemnification of Directors and OfficersOfficers. Under Sections 78.7502, 78.751 and 78.752Section 145 of the Nevada Revised Statutes, Pulse Biosciences, Inc.Delaware General Corporation Law, Registrant has broad powers to indemnify and insure its directors and officers against liabilities they may incur in theirsuch capacities, including liabilities under the Securities Act of 1933, as such. Ouramended (the “Securities Act”). Registrant’s Bylaws (the “Bylaws”) provide that Registrant shall indemnify its directors and officers and directors are shielded, as provided by the Nevada Revised Statutes and our articles of incorporation and bylaws, from liabilityif such officer or director acted (i) in good faith, (ii) in a manner reasonably believed to be in or not opposed to the companybest interests of Registrant, and (iii) with respect to any criminal action or the stockholders for monetary liabilities unless it is specifically limited by our articles of incorporation. Our articles of incorporation do not impose any limit our directors’ liability. Excepted under the law from that limitation of liability is: (a) a willful failure to deal fairly with the company or its stockholders in connection with a matter in which the director has a material conflict of interest; (b) a violation of criminal law, unless the directorproceeding, had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe such conduct was unlawful. Registrant believes that indemnification under its Bylaws covers at least negligence and gross negligence, and requires Registrant to advance litigation expenses in the case of stockholder derivative actions or other actions, against an undertaking by the directors and officers to repay such advances if it is ultimately determined that the director is not entitled to indemnification. The Bylaws further provide that rights conferred under such Bylaws shall not be deemed to be exclusive of any other right such persons may have or acquire under any agreement, vote of stockholders or disinterested directors, or otherwise.
In addition, Registrant’s Certificate of Incorporation (the “Certificate of Incorporation”) provides that, pursuant to Delaware law, none of its directors shall be liable for monetary damages for breach of his or her conduct was unlawful; (c) a transactionfiduciary duty of care to Registrant and its stockholders to the fullest extent permitted by the Delaware General Corporation Law as it presently exists or may hereafter be amended from whichtime to time. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to Registrant for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, derived an improper personal profit; and (d)for payment of dividends or approval of stock repurchases or redemptions that are in willful misconduct. Our articlesor negligent violation of incorporation and bylaws provideapplicable Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Certificate of Incorporation further provides that we willRegistrant shall indemnify ourits directors and officers to the fullest extent permitted by law and requires Registrant to advance litigation expenses in the case of stockholder derivative actions or other actions, against an undertaking by the director to repay such advances if it is ultimately determined that the director is not prohibited by Nevada law; provided, however,entitled to indemnification. The Certificate of Incorporation also provides that we may modify the extentrights conferred under such Certificate of such indemnification by individual contracts with our directors and officers; and, provided, further, that weIncorporation shall not be requireddeemed to be exclusive of any other right such persons may have or acquire under any statute, the Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or disinterested directors, or otherwise.
Registrant has obtained liability insurance policies for the officers and directors that, subject to certain limitations, terms and conditions, will insure them against losses arising from wrongful acts (as defined by the policy) in their capacity as directors or officers. In addition, Registrant has entered into agreements to indemnify its directors and certain of its officers in addition to the indemnification provided for in the Certificate of Incorporation and Bylaws. These agreements, among other things, indemnify Registrant’s directors and certain of its officers for certain expenses (including attorney’s TABLE OF CONTENTS fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in the right of Registrant, on account of services as a director or officer in connection with any proceeding,of Registrant or part thereof, initiated by such person unless such indemnification: (a) is expressly required to be made by law, (b) the proceeding was authorized by our board of directors, (c) is provided by us, in our sole discretion, pursuant to the powers vested in us under Nevada law or (d) is required to be made pursuant to the bylaws. Our articles of incorporation and bylaws also provide that we may indemnifyas a director or former director of a subsidiary corporation and we may indemnify our officers, employees or agents, or the officers, employees or agents of a subsidiary corporation and the heirs and personal representativesofficer of any such person,
against all expenses incurred bysubsidiary of Registrant, or as a director or officer of any other company or enterprise that the person relatingprovides services to a judgment, criminal charge, administrative action or other proceeding to which he or she is a party by reasonat the request of being or having been one of our directors, officers or employees.Registrant.
We maintain insurance coverage for the benefit of our current and past directors, officers and employees, including those of our subsidiaries.
We have entered into indemnification agreements with each of our directors and officers, under which we will indemnify them for their acts in their capacities as directors. We will bear all the expenses incurred by the director relating to a judgment, criminal charge, administrative action or other proceeding to which he or she is a party, and we will advance their expenses of any such action, subject to a reimbursement requirement in the event they are found responsible for the acts that are the basis of the action.
We have entered into an underwriting agreement, which provides that the underwriters are obligated, under some circumstances, to indemnify our directors, officers and controlling persons against specified liabilities.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by our 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
See also the undertakings set out in response to Item 17 herein.
Item 16. ExhibitsExhibits. A list ofThe following exhibits are filed herewith is contained in the exhibit index that immediately precedes such exhibits and isor incorporated herein by reference.reference herein:
Exhibit
Number | Description | | Plan of Conversion, dated June 18, 2018 | | Articles of Conversion, as filed with the Nevada Secretary of State of June 18, 2018 | | Certificate of Conversion, as filed with the Delaware Secretary of State on June 18, 2018 | | Certificate of Incorporation | | Bylaws | | Specimen Common Stock Certificate | | Form of Non-Transferable Subscription Rights Certificates | | Opinion of Wilson Sonsini Goodrich & Rosati, P.C. | | Consent of Gumbiner Savett Inc., Independent Registered Public Accounting Firm | | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1) | | Powers of Attorney (included on the signature page hereto) | | Form of Instruction for Use of Pulse Biosciences, Inc.’s Non-Transferable Subscription Rights Certificates | | Form of Letter to Stockholders Who are Record Holders | | Form of Letter to Brokers and Other Nominee Holders | | Form of Letter to Clients of Brokers and Other Nominee Holders | | Form of Nominee Holder Certification | | Form of Notice of Guaranteed Delivery for Non-Transferable Subscription Rights Certificates | | Form of Beneficial Owner Election |
| (1) | Incorporated by reference to Exhibit 2.1 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
| (2) | Incorporated by reference to Exhibit 3.1 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
| (3) | Incorporated by reference to Exhibit 3.2 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
| (4) | Incorporated by reference to Exhibit 3.3 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
| (5) | Incorporated by reference to Exhibit 3.4 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
| (6) | Incorporated by reference to Exhibit 4.1 previously filed with the registrant’s Current Report on Form 8-K filed with the SEC on June 18, 2018. |
TABLE OF CONTENTS Item 17. UndertakingsUndertakings. | (a) | The undersigned registrant hereby undertakes: |
(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 prospectus required by Section 10(a)(3) of the Securities Act; (ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and (iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(ii)(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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4)That, for the purpose of determining liability under the Securities Act to any purchaser: (i)If the registrant is relying on Rule 430B, (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 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 thesuch effective date; or TABLE OF CONTENTS
(ii)If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use. (5)That, for the purpose of determining liability of the registrant under the Securities Act 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 and 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, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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) The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering. (d) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (e) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding), is asserted by such director, officer or TABLE OF CONTENTS controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d)(f) The undersigned registrant hereby undertakes that:
(1)For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2)For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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. (e)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 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant 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 statementRegistration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hayward, State of California, on June 30, 2017.October 25, 2018. | | | | | PULSE BIOSCIENCES, INC. | | | | | | | By: | /s/ Darrin R. Uecker | | | | Darrin R. Uecker | | | | President and Chief Executive Officer | |
POWER OF ATTORNEY Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Darrin R. Uecker and Brian B. Dow, and each of them acting individually, jointly and severally, as his true and lawful attorneys-in-fact and agents, with full power of each to act alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933 this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:indicated. Signature | Title | Date | | | | /s/Darrin R. Uecker | President, Chief Executive Officer and Director (Principal
(Principal Executive Officer) | June 30, 2017
October 25, 2018 | Darrin R. Uecker | | | | /s/Brian B. Dow | Chief Financial Officer, SVP Administration and Finance, Secretary & Treasurer (Principal
(Principal Financial and Accounting Officer) | June 30, 2017
October 25, 2018 | Brian B. Dow | | | | /s/Robert M. LevandeW. Duggan | Director
Chairman of the Board of Directors | June 30, 2017
October 25, 2018 | Robert M. LevandeW. Duggan | | | | /s/Robert Greenberg, M.D. Kenneth A. Clark | Director | June 30, 2017
October 25, 2018 | Robert Greenberg, M.D.
|
Kenneth A. Clark
Signature
| Title
| Date
| | | | /s/Thierry Thaure Thomas J. Fogarty, M.D. | Director | June 30, 2017
October 25, 2018 | Thierry Thaure
Thomas J. Fogarty, M.D. | | | | /s/Mitchell Levinson Manmeet S. Soni | Director | June 30, 2017
October 25, 2018 | Mitchell Levinson
Manmeet S. Soni | | | | /s/Mahkam Zanganeh | Director | June 30, 2017
October 25, 2018 | Mahkam Zanganeh |
Exhibit Index
| | Exhibit
Number
| Description
| 1.1*
| Form of Underwriting Agreement
| 3.1(1)
| Articles of Incorporation
| 3.2(2)
| Bylaws
| 4.1(3)
| Specimen Stock Certificate
| 4.2
| Form of Senior Indenture
| 4.3
| Form of Senior Debt Security (included in Exhibit 4.2)
| 4.4
| Form of Subordinated Indenture
| 4.5
| Form of Subordinated Debt Security (included in Exhibit 4.4)
| 4.6*
| Form of Certificate of Designation
| 4.7*
| Form of Preferred Stock Certificate
| 4.8*
| Form of Deposit Agreement
| 4.9*
| Form of Depositary Receipt (included in Exhibit 4.8)
| 4.10*
| Form of Warrant Agreement
| 4.11*
| Form of Warrant Certificate
| 4.12*
| Form of Unit Agreement
| 5.1
| Opinion of Fennemore Craig, P.C.
| 5.2
| Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
| 12.1
| Computation of Ratio of Earnings to Fixed Charges
| 23.1
| Consent of Gumbiner Savett Inc., Independent Registered Public Accounting Firm
| 23.2
| Consent of Fennemore Craig, P.C. (included in Exhibit 5.1)
| 23.3
| Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.2)
| 24.1
| Power of Attorney (see signature page to this Registration Statement on Form S-3)
| 25.1*
| Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939
| 25.2*
| Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939
|
______________________
* To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Exchange Act, as amended, and incorporated herein by reference.
(1) Incorporated by reference to Exhibit 3.1 to registrant’s Registration Statement on Form S-1 filed with the SEC on December 22, 2015.
(2) Incorporated by reference to Exhibit 3.1 to registrant’s Current Report on Form 8-K filed with the SEC on February 10, 2017.
(3) Incorporated by reference to Exhibit 4.1 to registrant’s Registration Statement on Form S-1/A filed with SEC on March 7, 2016.
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