As
filed with the Securities and Exchange Commission on September 10, 2020
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
PAVMED
INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
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47-1214177
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification Number)
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One
Grand Central Place, Suite 4600
New
York, New York 10165
(212) 949-4319
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Lishan
Aklog, M.D.
Chairman and Chief Executive Officer
PAVmed Inc.
One Grand Central Place, Suite 4600
New
York, New York 10165
(212) 949-4319
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Office)
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
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Copies
to:
David
Alan Miller, Esq.
Jeffrey
M. Gallant, Esq.
Eric T. Schwartz, Esq.
Graubard Miller
405 Lexington Avenue, 11th Floor
New York, New York 10174
Telephone: (212) 818-8800
Fax: (212) 818-8881
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. [ ]
If this form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. [ ]
If this form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer”, “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
Growth Company [X]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
Title of each class of
securities to be registered(1)
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Amount
to be registered
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Proposed
maximum
offering price per
unit
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Proposed
maximum
aggregate
offering price
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Amount of
registration
fee(2)
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Common stock, par value $.0001 per share
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(3
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)
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(3
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)
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(3
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)
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|
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—
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|
Preferred stock, par value $.0001 per share
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(3
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)
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(3
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)
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(3
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)
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—
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|
Warrants
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|
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(3
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)
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|
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(3
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)
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(3
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)
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—
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|
Debt Securities
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|
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(3
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)
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|
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(3
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)
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(3
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)
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|
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—
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Units
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(3
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)
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(3
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)
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(3
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)
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—
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Total
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$
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75,000,000
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$
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1,275.61
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(1)
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This
registration statement covers such indeterminate number of shares of common stock and preferred stock, such indeterminate
number of warrants to purchase common stock, preferred stock, debt securities or other classes of securities offered hereby,
such indeterminate principal amount of debt securities of the registrant and such indeterminate number of units comprised
of the other classes of securities offered hereby as have an aggregate initial offering price not to exceed $75,000,000. The
securities registered hereunder are to be issued from time to time at prices to be determined. The securities registered hereunder
also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion or exchange
of preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the
anti-dilution provisions of any such securities to be offered hereby. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended, this registration statement shall be deemed to cover such additional number of securities as may
be offered or issued in connection with any stock splits, stock dividends or similar transactions.
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(2)
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Calculated
pursuant to Rule 457(o) promulgated under the Securities Act of 1933, as amended. Pursuant to Rule 415(a)(6) under the Securities
Act of 1933, as amended, the securities registered pursuant to this registration statement include unsold securities previously
registered by the registrant on the registrant’s registration statement (File No. 333-220549) filed on September 21,
2017 and declared effective on October 6, 2017 (the “2017 Registration Statement”). The 2017 Registration Statement
registered the offer and sale of an indeterminate number or amount of common stock, preferred stock, debt securities, warrants
and units, having an aggregate initial offering price of $75,000,000, a portion of which remain unsold as of the date of filing
this registration statement. The registrant has determined to include in this registration statement $65,172,500 of the unsold
securities under the 2017 Registration Statement (the “Unsold Securities”). Pursuant to Rule 415(a)(6) under the
Securities Act, this registration statement includes all of the Unsold Securities and the registrant is applying $7,553.49
of the previously paid filing fee associated with the Unsold Securities to this registration statement. The filing fee
of $1,275.61 being paid herewith relates to the $9,827,500 of newly registered securities. Pursuant to Rule 415(a)(6) under
the Securities Act, the offering of the Unsold Securities under the 2017 Registration Statement will be deemed terminated
as of the date of effectiveness of this registration statement.
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(3)
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Omitted
pursuant to General Instruction II.D of Form S-3 and Rule 457(o) promulgated under the Securities Act of 1933, as amended.
The proposed amount to be registered, maximum offering price per unit and maximum aggregate offering price per class of security
will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder.
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The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The registrant has an existing “shelf”
registration statement (File No. 333-220549) that was declared effective on October 6, 2017 and which expires on October 6, 2020,
pursuant to SEC rules. Accordingly, the registrant is filing this new “shelf” registration statement for the purpose
of continuing to provide the registrant with the ability to sell securities from time to time covered by this registration statement.
The registrant has included in this registration statement $65,172,500 of unsold securities registered pursuant to existing registration
statement. Pursuant to Rule 415(a)(6) under the Securities Act, $7,553.49 of the filing fees previously paid in connection with
the unsold securities will continue to be applied to such securities. In accordance with SEC rules, the registrant may continue
to offer and sell the unsold securities during the grace period afforded by Rule 415(a)(5) under the Securities Act. If the registrant
sells any unsold securities during the grace period, the registrant will identity in a pre-effective amendment to this registration
statement the new amount of unsold securities to be carried forward to this registration statement in reliance upon Rule 415(a)(6)
under the Securities Act.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Preliminary
Prospectus
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Subject
to Completion
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Dated
September 10, 2020
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PAVmed
Inc.
$75,000,000
COMMON
STOCK, PREFERRED STOCK, WARRANTS, DEBT SECURITIES AND UNITS
We
will offer and sell from time to time shares of common stock, shares of preferred stock, warrants, debt securities and/or units
comprised of one or more of the other classes of securities offered hereby, at an aggregate initial offering price not to exceed
$75,000,000. The securities may be offered separately, together, or in series, and in
amounts, at prices and on other terms to be determined at the time of each offering. We will specify the terms of the securities
being offered in one or more prospectus supplements, which may also supplement, update or amend information contained or incorporated
by reference in this prospectus.
We
may sell the securities directly to investors, to or through underwriters or dealers or through agents designated from time to
time, among other methods. The prospectus supplement for each offering will describe in detail the specific plan of distribution
for the securities. The prospectus supplement also will set forth the price to the public of such securities, any placement agent’s
fees or underwriter’s discounts and commissions, and the net proceeds we expect to receive from the sale of the securities.
Our
common stock is listed for trading on the Capital Market of The Nasdaq Stock Market, or “Nasdaq,” under the
symbol “PAVM.” Our Series W Warrants and Series Z Warrants are listed for trading on the Nasdaq Capital Market under
the symbols “PAVMW” and “PAVMZ.” On September 8, 2020, the last reported sale prices of our common stock,
Series W Warrants and Series Z Warrants were $1.83, $0.98 and $0.90, respectively. As of the date of this prospectus, none of
the other securities that we may offer by this prospectus are listed on any national securities exchange or automated quotation
system.
We
are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 and have elected to
comply with certain reduced public company reporting requirements.
Investing
in our securities involves a high degree of risk. See “Risk Factors” on page 6 in this prospectus and elsewhere
in any supplements for a discussion of information that should be considered in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is _______, 2020
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration
statement under the Securities Act on Form S-3 that we filed with the Securities and Exchange Commission, or the “SEC”
using a “shelf” registration process. Under this shelf process, we may, from time to time, sell or issue any of the
combination of securities described in this prospectus in one or more offerings with a maximum aggregate offering price of up
to $75,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this prospectus. If there is any inconsistency between the information in
this prospectus and any prospectus supplement, you should rely on the information in that prospectus supplement. You should read
both this prospectus and any prospectus supplement, together with the additional information described below under the heading
“Where You Can Find More Information” and “Information Incorporated by Reference.”
You should rely only on the information
contained or incorporated by reference in this prospectus and any prospectus supplement or issuer free writing prospectus
relating to a particular offering. We have not authorized anyone to provide you with different information and, if provided, such
information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus
supplement nor any issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer to buy offered
securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This prospectus
does not contain and any prospectus supplement or issuer free writing prospectus will not contain all of the information
included in the registration statement. For a more complete understanding of the offering of the securities, you should refer
to the registration statement, including its exhibits.
You should not assume that the information
appearing in this prospectus is accurate as of any date other than the date on the front cover of this prospectus. You should
not assume that the information contained in any prospectus supplement or in the documents incorporated by reference herein or
therein or in any issuer free writing prospectus is accurate as of any date other than the respective dates of those documents.
Our business, financial condition, results of operations, and prospects may have changed since that date.
We
have proprietary rights to trademarks used in this prospectus, including PAVmedTM, Lucid DiagnosticsTM,
PortIOTM, CaldusTM, CarpXTM, EsoCheckTM, EsoGuardTM, EsoCheck Cell Collection
Device™, EsoCure Esophageal Ablation Device™, NextCathTM, DisappEARTM, NextFloTM
and “Innovating at the Speed of Life”TM. Solely for our convenience, trademarks and trade names referred
to in this prospectus may appear without the “®” or “™” symbols, but such references are not
intended to indicate, in any way, that we will not assert, to the fullest extent possible under applicable law, our rights or
the rights to these trademarks and trade names.
Unless
otherwise indicated or unless the context otherwise requires, all references in this prospectus to “PAVmed,”
the “Company,” and “we,” “us” and “our” refer to PAVmed
Inc., a Delaware corporation, and its subsidiaries.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.
Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov. You may also
read and copy any document we file with the SEC at the SEC’s public reference room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference room.
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 our SEC filings, including the documents referred to below under “Information Incorporated
by Reference,” are also available on our website, www.pavmed.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
INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference
the information we file with it, which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. This prospectus incorporates by reference the documents listed below,
all filings we make under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing date of the registration
statement of which this prospectus forms a part and prior to effectiveness of such registration statement, and all filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after effectiveness of such registration statement
and prior to the sale of all of the securities offered hereby:
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2019 (filed on April 14, 2020) and Amendment No. 1 to the
Annual Report on Form 10-K/A (filed on April 24, 2020).
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Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2020 (filed on May 28, 2020) and June 30, 2020 (filed on August
14, 2020).
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Current
Reports on Form 8-K filed on January 13, 2020, May 1, 2020, May 15, 2020, July 27, 2020 and August 6, 2020.
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Form
8-A filed on January 29, 2016 registering our common stock and Series W Warrants, and Form 8-A filed on April 5, 2018 registering
our Series Z Warrants, under Section 12(b) of the Exchange Act.
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Any
statement contained in a document filed before the date of this prospectus and incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus. Any information that we file after the date of this prospectus with the SEC and incorporated by reference
herein will automatically update and supersede the information contained in this prospectus and in any document previously incorporated
by reference in this prospectus. Notwithstanding the foregoing, we are not incorporating any document or portion thereof or information
deemed to have been furnished and not filed in accordance with SEC rule.
We
will provide you with a copy of the documents incorporated by reference in this prospectus, without charge, upon written or oral
request directed to PAVmed Inc., One Grand Central Place, Suite 4600, New York, New York 10165, telephone number (212) 949-4319.
You may also access the documents incorporated by reference as described under “Where You Can Find More Information.”
NOTE
ON FORWARD-LOOKING STATEMENTS
All
statements, other than statements of historical facts, contained or incorporated by reference in this prospectus, including statements
regarding our future consolidated results of operations and consolidated financial position, our estimates regarding expenses,
future revenue, capital and operating expenditure requirements and needs for additional financing, our business strategy and plans
and the objectives of management for future operations, are forward-looking statements. The words “may,” “will,”
“should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,”
“potential” or “continue” or the negative of these terms or other similar expressions are intended to
identify forward-looking statements, although not all forward-looking statements contain these identifying words.
The
forward-looking statements contained in this prospectus and in the documents incorporated by reference in this prospectus are
based on current expectations, beliefs and assumptions concerning future developments and their potential effects on us. Forward-looking
statements are not guarantees of future performance and actual events and results may differ significantly from the events and
results discussed in the forward-looking statements. Factors that might cause such differences include, but are not limited to
the following:
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our
limited operating history;
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our
ability to generate revenue;
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the
ability of our products to achieve regulatory approval and market acceptance;
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our
success in retaining or recruiting, or changes required in, our officers, key employees or directors;
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our
ability to obtain additional financing when and if needed;
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our
ability to protect our intellectual property rights;
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our
ability to complete strategic acquisitions;
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our
ability to manage growth and integrate acquired operations;
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cybersecurity
risks;
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risks
related to the COVID-19 pandemic;
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the
liquidity and trading of our securities;
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regulatory
or operational risks; and
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the
other risks and uncertainties incorporated by reference under “Risk Factors.”
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In
addition, our forward-looking statements do not reflect the potential impact of any future financings, acquisitions, mergers,
dispositions, joint ventures, or investments we may make.
You
should not rely on our forward-looking statements. You should read prospectus, and the documents incorporated herein by reference,
completely and with the understanding actual events and results may be materially different from what we expect. We do not assume
any obligation to update any forward-looking statements for any reason, except as required by applicable law.
OUR
COMPANY
Overview
We
are a highly-differentiated multi-product commercial-stage medical device company organized to advance a broad pipeline of innovative
medical technologies from concept to commercialization, employing a business model focused on capital efficiency and speed to
market. Since inception on June 26, 2014, our activities have focused on advancing our lead products towards regulatory approval
and commercialization, protecting our intellectual property, and building our corporate infrastructure and management team. We
operate in one segment as a medical device company with four operating divisions, which include GI Health, Minimally Invasive
Interventions, Infusion Therapy, and Emerging Innovations. As resources permit, we will continue to explore internal and external
innovations that fulfill our project selection criteria without limiting ourselves to any target specialty or condition. We have
ongoing operations conducted in two active majority owned subsidiaries: Lucid Diagnostics Inc., or “Lucid,”
which was incorporated in May 2018, and Solys Diagnostics Inc., or “Solys,” which was incorporated in October
2019.
A
brief description of our key divisions and products is as follows:
GI
Health
EsoGuard,
EsoCheck and EsoCure
EsoCheck
and EsoGuard are based on a patented platform technology licensed from Case Western Reserve University to Lucid, which was developed
to provide an accurate, non-invasive, patient-friendly screening test for the early detection of adenocarcinoma of the esophagus,
or “EAC,” and of Barrett’s Esophagus, including dysplasia, pre-cursors to EAC in patients with chronic
gastroesophageal reflux. EsoGuard is a molecular diagnostic esophageal DNA test shown in a published human study to be highly
accurate at detecting Barrett’s Esophagus, as well as EAC. EsoCheck is a non-invasive cell collection device designed to
sample cells from a targeted region of the esophagus in a five-minute office-based procedure, without the need for endoscopy.
EsoCure
is a technology developed by PAVmed to treat Barrett’s Esophagus. EsoCure is in development to provide an Esophageal Ablation
Device using Caldus Technology to allow a clinician to treat dysplastic Barrett’s Esophagus before it can progress to EAC,
a highly lethal esophageal cancer, and to do so without the need for complex and expensive capital equipment.
Both
EsoGuard and EsoCheck are commercially available, as separately marketed products, for physicians to prescribe for U.S. patients.
On June 9, 2020, the U.S. Center for Medicare and Medicare Services published its preliminary gapfill payment recommendations
for the current review cycle. For EsoGuard, Medicare Administrative Contractor Palmetto GBA recommended a payment of $1,938.01
in 38 states and $2,690.00 in 12 states (including Florida, New Jersey and Pennsylvania) and two U.S. territories. Our longer-term
strategy is to secure a specific indication, based on published guidelines, for Barrett’s Esophagus screening in certain
at-risk populations using EsoGuard on samples collected with EsoCheck. This use of EsoGuard together with EsoCheck as a screening
system must be cleared or approved by the FDA as an in vitro device. We are conducting two concurrent clinical trials,
an EsoGuard screening study and an EsoGuard case control study, to support a future premarket approval filing with the FDA. In
February 2020, we received FDA Breakthrough Device designation for our EsoGuard esophageal DNA test on esophageal samples collected
using our EsoCheck cell collection device in a prevalent well-defined group of patients at elevated risk for esophageal dysplasia
due to chronic gastroesophageal reflux disease.
Minimally
Invasive Interventions
CarpX
CarpX
is a minimally invasive surgical device for use in the treatment of carpal tunnel syndrome. We believe CarpX will allow the physician
to relieve the compression on the median nerve without an open incision or the need for endoscopic or other imaging equipment.
To use CarpX, the operator first advances a guidewire through the carpal tunnel under the ligament, and then advanced over the
wire and positioned in the carpal tunnel under ultrasonic and/or fluoroscopic guidance. When the CarpX balloon is inflated it
creates tension in the ligament positioning the cutting electrodes underneath it and creates space within the tunnel, providing
anatomic separation between the target ligament and critical structures such as the median nerve. Radiofrequency energy is briefly
delivered to the electrodes, rapidly cutting the ligament, and relieving the pressure on the nerve. We believe CarpX will be significantly
less invasive than existing treatments.
In
April 2020, we received FDA market clearance under section 510(k) for our CarpX minimally invasive surgical device for use in
the treatment of carpal tunnel syndrome.
Infusion
Therapy
PortIO
PortIO
is a novel, patented, implantable, intraosseous vascular medical device which does not require accessing the central venous system
and does not have an indwelling intravascular component. It is designed to be highly resistant to occlusion and may not require
regular flushing. It features simplified, near-percutaneous insertion and removal, without the need for surgical dissection or
radiographic confirmation. It provides a near limitless number of potential access sites and can be used in patients with chronic
total occlusion of their central veins. We believe the absence of an intravascular component will likely result in a very low
infection rate.
Based
on encouraging animal data, once the COVID-19 outbreak allows for resumption of clinical trial activities, we are planning a long-term
(60-day implant duration) first-in-human clinical study in dialysis patients or those with poor venous access in Colombia, South
America and intend to fulfill the likely FDA request for human clinical data with a clinical safety study in the United States
following FDA clearance of our Investigational Device Exemption submission to begin clinical testing. In addition, we plan to
file for FDA Breakthrough Device designation for PortIO.
NextFlo
NextFlo is a patented, disposable, and
highly accurate infusion platform technology including intravenous infusion sets and disposable infusion pumps designed to eliminate
the need for complex and expensive electronic infusion pumps for most of the estimated one million infusions of fluids, medications
and other substances delivered each day in hospitals and outpatient settings in the United States. NextFlo is designed to deliver
highly accurate gravity-driven infusions independent of the height of the intravenous bag. It maintains constant flow by incorporating
a proprietary, passive, pressure-dependent variable flow-resistor consisting entirely of inexpensive, easy-to-manufacture disposable
mechanical parts. NextFlo testing has demonstrated constant flow rates across a wide range of intravenous bag heights, with accuracy
rates comparable to electronic infusion pumps. We are seeking a long-term strategic partnership or acquiror for NextFlo.
We have been running a formal M&A process for NextFlo targeting strategic and financial partners. The process is active with
ongoing discussion with multiple parties and we are simultaneously progressing toward an initial section 510(k) submission to
the FDA.
Emerging
Innovations
Emerging
innovations refers to a diversified and expanding portfolio of innovative products designed to address unmet clinical needs across
a broad range of clinical conditions. We are evaluating a number of these product opportunities and intellectual property covering
a spectrum of clinical conditions, which have either been developed internally or have been presented to us by clinician innovators
and academic medical centers for consideration of a partnership to develop and commercialize these products. This collection of
products includes, without limitation, initiatives in noninvasive laser-based glucose monitoring, mechanical circulatory support,
and pediatric ear tubes. In June 2020, we announced the execution of a letter of intent to consummate a series of agreements to
develop and utilize Canon Virginia’s commercial grade and scalable aqueous silk fibroin molding process to manufacture our
DisappEAR molded pediatric ear tubes for commercialization. Furthermore, we are exploring other opportunities to grow our business
and enhance shareholder value through the acquisition of pre-commercial or commercial stage products and/or companies with potential
strategic corporate and commercial synergies.
Corporate
History
We
were incorporated on June 26, 2014 in the State of Delaware under the name PAXmed Inc. In April 2015, we changed our name to PAVmed
Inc.
Our
business address is One Grand Central Place, 60 East 42nd Street, Suite 4600, New York, New York 10165, and our telephone number
is (212) 949-4319. Our corporate website is www.PAVmed.com. The information contained on, or that can be assessed through, our
corporate website is not incorporated by reference into this prospectus supplement and you should not consider information on
our corporate website to be part of this prospectus supplement or in deciding whether to purchase our securities.
RISK
FACTORS
Any
investment in our securities involves a high degree of risk. Potential investors are urged to read and consider the risks and
uncertainties relating to an investment in our company set forth under “Risk Factors” in the prospectus supplement
relating to a particular offering, together with all of the other information contained or incorporated by reference in the prospectus
supplement or contained or incorporated by reference in this prospectus. Potential investors also should read and consider the
risks and uncertainties discussed under the item “Risk Factors” in our annual report on Form 10-K and our quarterly
reports on Form 10-Q, all of which are incorporated herein by reference, as they may be amended, supplemented or superseded from
time to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular offering.
Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business
and results of operations. If any of these risks actually occur, our business, financial condition or results of operations could
be seriously harmed. In that event, the market price for our common stock could decline and you may lose all or part of your investment.
USE
OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, the net proceeds from the sale of the securities offered hereby will be used for working capital and other
general corporate purposes. Any specific allocation of the net proceeds of an offering of securities to a specific purpose will
be determined at the time of a particular offering and will be described in the prospectus supplement relating to such
offering. Pending the application of such proceeds, we expect to invest the proceeds in short-term, interest bearing, investment-grade
marketable securities or money market obligations.
SECURITIES
WE MAY OFFER
This
prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not
meant to be complete descriptions of each security. The particular terms of any security will be described in the applicable prospectus
supplement.
DESCRIPTION
OF CAPITAL STOCK
In
the discussion that follows, we have summarized selected provisions of our certificate of incorporation, bylaws and the Delaware
General Corporation Law, or the “DGCL,” relating to our capital stock. This summary is not complete, is subject
to the relevant provisions of Delaware law and is qualified in its entirety by reference to our certificate of incorporation and
our bylaws. You should read the provisions of our certificate of incorporation and our bylaws as currently in effect for provisions
that may be important to you.
Authorized
Capital Stock
We
are authorized to issue 150,000,000 shares of common stock, par value $0.001, and 20,000,000 shares of preferred stock, par value
$0.001. On March 23, 2018, we filed a certificate of designation of preferences, rights and limitations for a series of preferred
stock designated as Series B Convertible Preferred Stock, or the “Series B Preferred Stock.”
As
of September 8, 2020, 50,101,954 shares of our common stock and 1,203,488 shares of Series B Preferred Stock were issued and outstanding.
In addition, as of September 8, 2020:
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17,196,857
shares were issuable upon exercise of our outstanding warrants at a weighted average
exercise price of $1.68 per share;
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6,673,529
shares were issuable upon exercise of our outstanding employee stock options
at a weighted average exercise price of $2.57 per share;
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53,000
units were issuable upon exercise of our outstanding unit purchase options at an exercise price of $5.50 per unit,
with each unit consisting of one share of our common stock and one Series Z Warrant, and each Series Z Warrant entitling the
holder to purchase one share of our common stock at an exercise price of $1.60 per share;
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1,203,488
shares were estimated to be issuable upon conversion of our outstanding Series
B Preferred Stock (assuming all outstanding shares were converted in full on such date
at the conversion price of $3.00 per share). The number of shares of common stock to
be issued under the Series B Preferred Stock may be substantially greater than this amount,
because dividends on the Series B Preferred Stock are payable in kind;
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4,490,541
shares were estimated to be issuable upon conversion our senior secured convertible
notes issued on November 4, 2019 (assuming such notes were converted in full on such
date at the fixed conversion price of $1.60 per share). The number of shares of common
stock to be issued under these notes may be substantially greater than this amount, if
the interest and the installments of principal due under such notes are paid in shares
of our common stock, because in such cases the number of shares issued will be determined
based on the then current market price, but in any event at a price not more than
fixed conversion price per share or less than a floor price specified in the notes;
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2,372,222 shares were estimated to be issuable
upon conversion our senior convertible notes issued on April 30, 2020 and on August 6, 2020 (assuming such notes were converted
in full on such date at the fixed conversion price of $5.00 per share). In certain limited circumstances, the number of shares
of common stock to be issued under these notes may be substantially greater than this amount, because such notes may be converted
at a price based on the then current market price, but in any event at a price not more than fixed conversion price
per share or less than a floor price specified in the notes, upon the occurrence of certain events of default or if we
enter into a variable price transaction.
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As
of September 8, 2020, we also had 2,128,406 shares reserved for issuance, but not subject to outstanding awards, under our long-term
incentive equity plan, and 513,012 shares reserved for issuance under our employee stock purchase plan.
Common
Stock
Holders
of common stock are entitled to one vote per share on matters on which our stockholders vote. There are no cumulative voting rights.
Subject to any preferential dividend rights of any outstanding shares of preferred stock, holders of common stock are entitled
to receive dividends, if declared by our board of directors, out of funds that we may legally use to pay dividends. If we liquidate
or dissolve, holders of common stock are entitled to share ratably in our assets once our debts and any liquidation preference
owed to any then-outstanding preferred stockholders is paid. Our certificate of incorporation does not provide the common stock
with any redemption, conversion or preemptive rights, and there are no sinking fund provisions with respect to our common stock.
All shares of common stock that are outstanding are fully-paid and non-assessable.
Preferred
Stock
Our
certificate of incorporation authorizes the issuance of blank check preferred stock. Accordingly, our board of directors is empowered,
without stockholder approval, to issue shares of preferred stock with dividend, liquidation, redemption, voting or other rights
which could adversely affect the voting power or other rights of the holders of shares of our common stock. In addition, shares
of preferred stock could be utilized as a method of discouraging, delaying or preventing a change in control of us.
Series
B Preferred Stock
The Series B Preferred stock is senior
to our common stock with respect to dividends and, as described below, assets distributed in liquidation. The Series B Preferred
Stock has no voting rights. The stated value of the Series B Preferred Stock is $3.00 per share. All shares of Series B Preferred
Stock that are outstanding are fully-paid and non-assessable.
The
Series B Preferred Stock provides for dividends at a rate of 8% per annum of the stated value per share of the Series B Preferred
Stock. Dividends are payable in arrears on January 1, April 1, July 1, and October 1, 2021. Dividends accrue and cumulate whether
or not declared by our board of directors. All accumulated and unpaid dividends compound quarterly at the rate of 8% of the stated
value per annum. Dividends through October 1, 2021 are payable in additional shares of Series B Preferred Stock. Dividends after
October 1, 2021 are payable at our election in any combination of shares of Series B Preferred Stock, cash or shares of our common
stock.
In
the event of any voluntary or involuntary liquidation, dissolution or winding up of our company or Deemed Liquidation Event (as
defined in the certificate of designations for the Series B Preferred Stock), the holders of shares of Series B Preferred Stock
then outstanding shall be entitled to be paid out of our assets available for distribution to our stockholders, before any payment
shall be made to the holders of our common stock by reason of their ownership thereof, an amount per share equal to the greater
of (i) the stated value of the Series B Preferred Stock, plus any dividends accrued but unpaid thereon, or (ii) such amount per
share as would have been payable had all shares of Series B Preferred Stock been converted into our common stock immediately prior
to such liquidation, dissolution, winding up or Deemed Liquidation Event.
At
the holders’ election, a share of Series B Preferred Stock is convertible into a number of shares of our common stock determined
by dividing the stated value of such share by the conversion price. The conversion price is $3.00, subject to adjustment for stock
dividends, stock splits or similar events affecting our common stock.
Dividends
We
have not paid any cash dividends on our common stock to date. Any future decisions regarding dividends will be made by our board
of directors. We do not anticipate paying dividends in the foreseeable future but expect to retain earnings to finance the growth
of our business. Our board of directors has complete discretion on whether to pay dividends. Even if our board of directors decides
to pay dividends, the form, frequency and amount will depend upon our future operations and earnings, capital requirements and
surplus, general financial condition, contractual restrictions and other factors the board of directors may deem relevant.
Anti-Takeover
Provisions
Provisions
of the DGCL and our certificate of incorporation and bylaws could make it more difficult to acquire us by means of a tender offer,
a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below, are expected
to discourage certain types of coercive takeover practices and takeover bids that our board of directors may consider inadequate
and to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the
benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire
or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation
of these proposals could result in improved terms for our stockholders.
Delaware
Anti-Takeover Statute. We are subject to Section 203 of the DGCL, an anti-takeover statute. In general, Section 203 of the
DGCL prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years following the time the person became an interested stockholder, unless the business
combination or the acquisition of shares that resulted in a stockholder becoming an interested stockholder is approved in a prescribed
manner. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person who, together
with affiliates and associates, owns (or within three years prior to the determination of interested stockholder status did own)
15% or more of a corporation’s voting stock. The existence of this provision would be expected to have an anti-takeover
effect with respect to transactions not approved in advance by the board of directors, including discouraging attempts that might
result in a premium over the market price for the shares of common stock held by stockholders.
Classified Board. Our board of
directors is divided into three classes, with staggered three-year terms. The number of directors in each class is as nearly
equal as possible. Directors elected to succeed those directors whose terms expire are elected for a term of office to expire
at the third succeeding annual meeting of stockholders after their election. The existence of a classified board may extend the
time required to make any change in control of the board when compared to a corporation with an unclassified board. It may take
two annual meetings for our stockholders to effect a change in control of the board, because in general less than a majority of
the members of the board will be elected at a given annual meeting. Because our board is classified and our certificate of incorporation
does not otherwise provide, under Delaware law, our directors may only be removed for cause.
Vacancies
in the Board of Directors. Our certificate of incorporation and bylaws provide that, subject to limitations, any vacancy occurring
in our board of directors for any reason may be filled by a majority of the remaining members of our board of directors then in
office, even if such majority is less than a quorum. Each director elected to fill a vacancy resulting from the death, resignation
or removal of a director shall hold office until the expiration of the term of the director whose death, resignation or removal
created the vacancy.
Advance
Notice of Nominations and Shareholder Proposals. Our stockholders are required to provide advance notice and additional disclosures
in order to nominate individuals for election to our board of directors or to propose matters that can be acted upon at a stockholders’
meeting, which may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s
own slate of directors or otherwise attempting to obtain control of our company.
Special
Meetings of Stockholders. Under our bylaws, special meetings of stockholders may be called by the directors, or the president
or the chairman, and shall be called by the secretary at the request in writing of stockholders owning a majority in amount of
the entire capital stock of the corporation issued and outstanding and entitled to vote.
No
Cumulative Voting. The DGCL provides that stockholders are denied the right to cumulate votes in the election of directors
unless our certificate of incorporation provides otherwise. Our certificate of incorporation does not provide for cumulative voting.
Limitation
on Directors’ Liability and Indemnification
Our certificate of incorporation and bylaws
provide that no director of ours will be personally liable to us or any of our stockholders for monetary damages arising
from the director’s breach of fiduciary duty as a director. However, this does not apply (i) for any breach of the director’s
duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for liability under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
Our certificate of incorporation provides
that all directors shall be entitled to be indemnified by the company to the fullest extent permitted by law and our
bylaws contain comparable provisions. Our certificate of incorporation also provides that we shall pay the expenses incurred by
our directors in defending any action for which indemnification may be available, upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified. We
have entered into, and intend to continue to enter into, separate indemnification agreements with our directors,
in addition to the indemnification provided for in our certificate of incorporation and bylaws. We also maintain directors’
and officers’ liability insurance.
These
provisions could have the effect of reducing the likelihood of derivative litigation against our directors and may discourage
or deter our stockholders or management from bringing a lawsuit against our directors for breach of their duty of care, even though
such an action, if successful, might otherwise have benefited us and our stockholders.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or person controlling
us pursuant to the foregoing provisions, we have been advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is therefore unenforceable.
Listing
Our
common stock is traded on the Nasdaq Capital Market under the symbol “PAVM.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company located at 1 State Street,
30th Floor, New York, NY 10004.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock, preferred stock, debt securities or any other security offered hereby. Warrants
may be issued in one or more series and may be issued independently or together with other securities and may be attached to or
separate from any offered securities. We may issue the warrants directly or under warrant agreements to be entered into between
a warrant agent and us. Any warrant agent will act solely as our agent in connection with the warrants and will not have any obligation
or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The
following outlines some of the general terms and provisions of the warrants that we may issue. A prospectus supplement will describe
the particular terms of any warrants offered from time to time, and may supplement or change the terms outlined below. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, a form of the warrant or form of the warrant agreement and warrant certificate that sets forth the
terms of the particular warrants we are offering. The summary of such terms contained in this prospectus and in the applicable
prospectus supplement is qualified in its entirety by reference to such warrant or warrant agreement and warrant certificate.
We urge you to read the warrant or warrant agreement and warrant certificate and the additional description of the terms of the
warrants included in the prospectus supplement.
As
of the date of this prospectus, we have two series of warrants outstanding: warrants to purchase our common stock issued in our
initial public offering and in private placements prior thereto, which we refer to as the “Series W Warrants,”
and Series Z warrants to purchase our common stock, which we refer to as the “Series Z Warrants.”
General
The
prospectus supplement relating to a particular issue of warrants will describe the terms of the warrants, including the following:
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the
title of the warrants;
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the
offering price for the warrants, if any;
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the
aggregate number of the warrants;
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the
designation and terms of the common stock, preferred stock or other class of security that may be purchased upon exercise
of the warrants;
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if
applicable, the designation and terms of the securities that the warrants are issued with 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 and price of common stock or preferred stock, or the designation and number or amount of debt or other securities,
that may be purchased upon exercise of a warrant;
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the
dates on which the right to exercise the warrants 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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if
applicable, a discussion of material U.S. federal income tax considerations;
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anti-dilution
provisions of the warrants, if any;
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redemption
or call provisions, if any, applicable to the warrants; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the
warrants.
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In
the case of warrants issued under a warrant agreement, we and the warrant agent generally may amend or supplement the warrant
agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the
holders of the warrants.
Holders
may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered. In general, holders may
exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement.
After the expiration time, unexercised warrants will be void.
Until
a holder exercises the warrants to purchase any securities underlying the warrants, the holder will not have any rights as a holder
of the underlying securities by virtue of ownership of warrants.
Series
W Warrants
The
Series W Warrants are issued under a warrant agreement, dated April 28, 2016, between Continental Stock Transfer & Trust Company,
as warrant agent, and us. In the discussion that follows, we have summarized selected provisions of the warrant agreement. This
summary is not complete. This discussion is subject to the provisions the warrant agreement and is qualified in its entirety by
reference to the warrant agreement. You should read the warrant agreement as currently in effect for provisions that may be important
to you.
General
We
currently have 381,818 Series W Warrants outstanding. Each Series W Warrant entitles the registered holder to purchase one share
of our common stock at a price of $5.00 per share, subject to adjustment as discussed below. Each warrant is currently exercisable
and expires on January 29, 2022 at 5:00 p.m., New York City time.
Notwithstanding
the foregoing, no Series W Warrants will be exercisable for cash unless we have an effective and current registration statement
covering the shares of common stock issuable upon exercise of the warrants and a current prospectus relating to such shares of
common stock. If a registration statement covering the shares of common stock issuable upon exercise of the Series W Warrants
is not effective when the warrants become exercisable, warrant holders may, until such time as there is an effective registration
statement and during any period when we shall have failed to maintain an effective registration statement, exercise the Series
W Warrants on a cashless basis in the same manner as if we called the warrants for redemption and required all holders to exercise
their warrants on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the
warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair market value. The “fair market value” for this purpose
will mean the average reported last sale price of the shares of common stock for the 10 trading days ending on the trading day
prior to the date of exercise.
Redemption
We
may redeem the outstanding Series W Warrants (other than those outstanding prior to this offering held by certain of our senior
managers, our founders and members thereof), at our option, in whole or in part, at a price of $0.01 per warrant:
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at
any time while the warrants are exercisable,
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upon
a minimum of 30 days’ prior written notice of redemption,
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if,
and only if, the volume weighted average price of our common stock equals or exceeds $10.00 (subject to adjustment) for any
20 consecutive trading days ending three business days before we send the notice of redemption, provided that the average
daily trading volume in the stock is at least 20,000 shares per day, and
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if,
and only if, there is a current registration statement in effect with respect to the shares of common stock underlying such
warrants.
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The
right to exercise will be forfeited unless the Series W Warrants are exercised prior to the date specified in the notice of redemption.
On and after the redemption date, a record holder of a Series W Warrant will have no further rights except to receive the redemption
price for such holder’s warrant upon surrender of such warrant.
If
we call the Series W Warrants for redemption as described above, we will have the option to require all holders that wish to exercise
warrants to do so on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the
warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair market value. In this case, the “fair market value”
shall mean the average reported last sale price of the shares of common stock for the 10 trading days ending on the third trading
day prior to the date on which the notice of redemption is sent to the holders of warrants.
Exercise
The
exercise price and number of shares of common stock issuable on exercise of the Series W Warrants may be adjusted in certain circumstances
including in the event of a share dividend, extraordinary dividend or our recapitalization, reorganization, merger or consolidation.
However, the Series W Warrants will not be adjusted for issuances of shares of common stock at a price below their respective
exercise prices.
The
Series W Warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices
of the warrant agent, with the exercise form on the reverse side of the warrant certificate completed and executed as indicated,
accompanied by full payment of the exercise price, by certified or official bank check payable to us, for the number of warrants
being exercised. The warrant holders do not have the rights or privileges of holders of shares of common stock and any voting
rights until they exercise their warrants and receive shares of common stock.
Except
as described above, no Series W Warrants will be exercisable and we will not be obligated to issue shares of common stock unless
at the time a holder seeks to exercise such warrant, a prospectus relating to the shares of common stock issuable upon exercise
of the Series W Warrants is current and the shares of common stock have been registered or qualified or deemed to be exempt under
the securities laws of the state of residence of the holder of the warrants. Under the terms of the warrant agreement, we have
agreed to use our commercially reasonable best efforts to meet these conditions and to maintain a current prospectus relating
to the shares of common stock issuable upon exercise of the warrants until the expiration of the warrants.
No
fractional shares will be issued upon exercise of the Series W Warrants. If, upon exercise of the warrants, a holder would be
entitled to receive a fractional interest in a share, we will, upon exercise, round up to the nearest whole number the number
of shares of common stock to be issued to the warrant holder.
Listing,
Warrant Agent and Warrant Agreement
Our
Series W Warrants are traded on the Nasdaq Capital Market under the symbol “PAVMW.”
The
warrant agent and registrar for our Series W Warrants is Continental Stock Transfer & Trust Company located at 1 State Street,
30th Floor, New York, NY 10004.
The
Series W Warrants are issued in registered form under a warrant agreement between the warrant agent and us. The warrant agreement
provides that the terms of the Series W Warrants may be amended without the consent of any holder to cure any ambiguity or correct
any defective provision, but requires the approval, by written consent or vote, of the holders of a majority of the then outstanding
warrants in order to make any change that adversely affects the interests of the registered holders. Notwithstanding the foregoing,
we may lower the exercise price or extend the duration of the Series W Warrants without the consent of the holders.
Series
Z Warrants
The Series Z Warrants are issued under
an amended and restated warrant agreement, dated June 8, 2018, between Continental Stock Transfer & Trust Company, as warrant
agent, and us. In the discussion that follows, we have summarized selected provisions of the amended and restated warrant agreement.
This summary is not complete. This discussion is subject to the provisions the amended and restated warrant agreement and is qualified
in its entirety by reference to the amended and restated warrant agreement. You should read the amended and restated warrant agreement
as currently in effect for provisions that may be important to you.
General
We
currently have 16,815,039 Series Z Warrants outstanding. Each Series Z Warrant entitles the registered holder to purchase one
share of our common stock at a price of $1.60 per share, subject to adjustment as discussed below. Each warrant is currently exercisable
and expires on April 30, 2024 at 5:00 p.m., New York City time.
Notwithstanding
the foregoing, no Series Z Warrants will be exercisable for cash unless we have an effective and current registration statement
covering the shares of common stock issuable upon exercise of the warrants and a current prospectus relating to such shares of
common stock. If a registration statement covering the shares of common stock issuable upon exercise of the Series Z Warrants
is not effective when the warrants become exercisable, warrant holders may, until such time as there is an effective registration
statement and during any period when we shall have failed to maintain an effective registration statement, exercise the Series
Z Warrants on a cashless basis in the same manner as if we called the warrants for redemption and required all holders to exercise
their warrants on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the
warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair market value. The “fair market value” for this purpose
will mean the average daily volume weighted average price for our common stock for the 10 trading days ending on the trading day
prior to the date of exercise.
Redemption
We
may redeem the outstanding Series Z Warrants (other than those outstanding prior to this offering held by certain of our senior
managers, our founders and members thereof), at our option, in whole or in part, at a price of $0.01 per warrant:
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at
any time while the warrants are exercisable,
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upon
a minimum of 30 days’ prior written notice of redemption,
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if,
and only if, the volume weighted average closing price of our common stock equals or exceeds $9.00 (subject to adjustment)
for any 20 out of 30 consecutive trading days ending three business days before we send the notice of redemption, provided
that the average daily trading volume in the stock during such 30-day period is at least 20,000 shares per day, and
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if
and only if, there is a current registration statement in effect with respect to the shares of common stock underlying such
warrants.
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The
right to exercise will be forfeited unless the Series Z Warrants are exercised prior to the date specified in the notice of redemption.
On and after the redemption date, a record holder of a Series Z Warrant will have no further rights except to receive the redemption
price for such holder’s warrant upon surrender of such warrant.
If
we call the Series Z Warrants for redemption as described above, we will have the option to require all holders that wish to exercise
warrants to do so on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the
warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair market value. In this case, the “fair market value”
shall mean the average daily volume weighted average price the shares of common stock for the 10 trading days ending on the third
trading day prior to the date on which the notice of redemption is sent to the holders of warrants.
Exercise
The
exercise price and number of shares of common stock issuable on exercise of the Series Z Warrants may be adjusted in certain circumstances
including in the event of a share dividend, extraordinary dividend or our recapitalization, reorganization, merger or consolidation.
However, the Series Z Warrants will not be adjusted for issuances of shares of common stock at a price below their respective
exercise prices.
If
a Fundamental Transaction (as defined in the amended and restated warrant agreement for the Series Z Warrants) is completed, then,
upon any subsequent exercise of a Series Z Warrant, the holders of the Series Z Warrants shall have the right to receive, for
each share of our common stock that would have been issuable upon exercise of a Series Z Warrant immediately prior to the occurrence
of such Fundamental Transaction, at the option of each holder (without regard to the beneficial ownership limitation described
below), the number of shares of common stock of the successor or acquiring corporation or of us, if we are the surviving corporation,
and any additional consideration receivable as a result of such Fundamental Transaction by a holder of the number of shares of
our common stock for which the Series Z Warrant is exercisable immediately prior to such Fundamental Transaction (without regard
to the beneficial ownership limitation described below).
The
Series Z Warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices
of the warrant agent, with the exercise form on the reverse side of the warrant certificate completed and executed as indicated.
Within two trading days following the exercise, the holder will pay in full the exercise price, by certified or official bank
check payable to us, for the number of warrants being exercised. The warrant holders do not have the rights or privileges of holders
of shares of common stock and any voting rights until they exercise their warrants.
Except
as described above, no Series Z Warrants will be exercisable and we will not be obligated to issue shares of common stock unless
at the time a holder seeks to exercise such warrant, a prospectus relating to the shares of common stock issuable upon exercise
of the Series Z Warrants is current and the shares of common stock have been registered or qualified or deemed to be exempt under
the securities laws of the state of residence of the holder of the warrants. Under the terms of the amended and restated warrant
agreement, we have agreed to use our commercially reasonable best efforts to meet these conditions and to maintain a current prospectus
relating to the shares of common stock issuable upon exercise of the warrants until the expiration of the warrants.
No
fractional shares will be issued upon exercise of the Series Z Warrants. If, upon exercise of the warrants, a holder would be
entitled to receive a fractional interest in a share, we will, upon exercise, round up to the nearest whole number the number
of shares of common stock to be issued to the warrant holder.
We
will not effect any exercise of a Series Z Warrant, and a holder shall not have the right to exercise any portion of a Series
Z Warrant, to the extent that after giving effect to such issuance after exercise as set forth on the applicable subscription
form, the holder (together with the holder’s affiliates, and any other persons acting as a group together with the holder
or any of the holder’s affiliates), would beneficially own in excess of 4.99% or 9.99% (at the election of the holder) of
our common stock outstanding.
Listing,
Warrant Agent and Amended and Restated Warrant Agreement
Our
Series Z Warrants are traded on the Nasdaq Capital Market under the symbols “PAVMZ.”
The
warrant agent and registrar for our Series Z Warrants is Continental Stock Transfer & Trust Company located at 1 State Street,
30th Floor, New York, NY 10004.
The
Series Z Warrants are issued in registered form under an amended and restated warrant agreement between the warrant agent and
us. The amended and restated warrant agreement provides that the terms of the Series Z Warrants may be amended without the consent
of any holder to cure any ambiguity or correct any defective provision, but requires the approval, by written consent or vote,
of the holders of two-thirds of the then outstanding warrants in order to make any change that adversely affects the interests
of the registered holders. Notwithstanding the foregoing, we may lower the exercise price or extend the duration of the Series
Z Warrants without the consent of the holders.
DESCRIPTION
OF DEBT SECURITIES
We
may offer any combination of senior debt securities or subordinated debt securities. We may issue the debt securities under one
or more indentures or without the use of an indenture to the extent such issuance without an indenture is exempt under the terms
of the Trust Indenture Act of 1939, as amended. If we issue the debt securities under one or more indentures, the senior debt
securities will be issued under one form of indenture and the subordinated debt securities will be issued under another form of
indenture, in each case, between us, as issuer, and the trustee or trustees identified in a prospectus supplement. The form for
each type of indenture is filed as an exhibit to the registration statement of which this prospectus is a part. Further information
regarding the trustee or trustees may be provided in the prospectus supplement.
The
following outlines some of the general terms and provisions of the debt securities that we may issue. A prospectus supplement
will describe the particular terms of any debt securities offered from time to time, and may supplement or change the terms outlined
below. If we issue the debt securities under an indenture, we will file as an exhibit to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports that we file with the SEC, a form of the indenture supplement
that sets forth the terms of the particular debt securities we are offering. If we issue the debt securities without an indenture,
we will so file or incorporate by reference a form of the instrument evidencing the debt securities that sets forth such terms.
The summary of such debt securities contained in this prospectus and in the applicable prospectus supplement is qualified in its
entirety by reference to the indentures and the applicable indenture supplement, or to the other applicable instrument evidencing
the debt securities. We urge you to read the indentures and the applicable indenture supplement, or the other applicable instrument
evidencing the debt securities, and the additional description of the debt securities in the prospectus supplement.
General
Within
the total dollar amount of this shelf registration statement, we may issue an unlimited principal amount of debt securities in
separate series. We may specify a maximum aggregate principal amount for the debt securities of any series. However, the indentures,
or other applicable instruments, might not limit the amount of other debt that we may incur or whether that debt is senior to
the debt securities offered by this prospectus, and might not contain financial or similar restrictive covenants. The indentures,
or other applicable instruments, might not contain any provision to protect holders of debt securities against a sudden or dramatic
decline in our ability to pay our debt.
Senior
debt securities will be unsubordinated obligations and will rank equal with all our other unsubordinated debt. Subordinated debt
securities will be paid only if all payments due under our senior indebtedness, including any outstanding senior debt securities,
have been made.
The
prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt securities. The
description also will include:
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the
title and form of the debt securities;
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any
limit on the aggregate principal amount of the debt securities or the series of which they are a part;
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the
date or dates on which we must repay the principal, the maturity date and the principal amount due at maturity and whether
the securities will be offered at a price such that they will be deemed an “original issue discount”;
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the
person to whom any interest on a debt security of the series will be paid;
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the
rate or rates at which the debt securities will bear interest;
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if
any, the date or dates from which interest will accrue, and the dates on which we must pay interest;
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the
place or places where we must pay the principal and any premium or interest on the debt securities;
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the
terms and conditions on which we may redeem any debt security, if at all;
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any
obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so;
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the
denominations in which we may issue the debt securities;
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the
currency in which we will pay the principal of and any premium or interest on the debt securities and whether we may pay in
property other than cash, including our securities;
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the
principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a
United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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if
applicable, that the debt securities are defeasible and the terms of such defeasance;
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if
applicable, the terms of any right to convert debt securities into, or exchange debt securities for, common stock, preferred
stock. other debt securities and/or other securities or property;
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whether
we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for
the global securities and the terms of the global securities;
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the
subordination provisions that will apply to any subordinated debt securities;
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the
events of default applicable to the debt securities and the rights of the trustee, if applicable, or the holders to declare
the principal amount of any of the debt securities due and payable; and
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the
covenants that will apply to the debt securities.
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We
may sell the debt securities at a substantial discount below their stated principal amount. We will describe U.S. federal income
tax considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An
“original issue discount security” is any debt security sold for less than its face value, and which provides that
the holder cannot receive the full face value if maturity is accelerated. The prospectus supplement relating to any original issue
discount securities will describe the particular provisions relating to acceleration of the maturity upon the occurrence of an
event of default. In addition, we will describe U.S. federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the prospectus supplement. If we issue debt securities at
a discount from their stated principal amount, then, for purposes of calculating the aggregate offering price of the offered securities
issued under this prospectus, we will include only the offering price of the debt securities and not the principal amount of the
debt securities.
The
prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for
common stock, preferred stock, other debt securities and/or other securities or property. The conversion or exchange may be mandatory
or may be at our option or at your option. The prospectus supplement will describe how the number of shares of preferred stock
and common stock or amount of debt securities or other securities or property to be received upon conversion or exchange would
be calculated.
The
Indentures
The
following outlines some of the general terms and provisions of the indentures for the senior debt securities and the subordinated
debt securities. Forms of the indentures are filed as exhibits to the registration statement of which this prospectus is a part.
The summary of the indentures contained in this prospectus is qualified in its entirety by reference to such forms, which we urge
you to read in full.
Subordinated
Debt Securities
The
indebtedness underlying any subordinated debt securities will be payable only if all payments due under our senior indebtedness,
as defined in the applicable indenture and any indenture supplement, including any outstanding senior debt securities, have been
made. If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior indebtedness
before we pay the principal of, or any premium or interest on, the subordinated debt securities. In the event the subordinated
debt securities are accelerated because of an event of default, we may not make any payment on the subordinated debt securities
until we have paid all senior indebtedness or the acceleration is rescinded. If the payment of subordinated debt securities accelerates
because of an event of default, we must promptly notify holders of senior indebtedness of the acceleration.
If
we experience a bankruptcy, dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders
of subordinated debt securities may receive less, ratably, than our other creditors. The indenture for subordinated debt securities
may not limit our ability to incur additional senior indebtedness.
Form,
Exchange and Transfer
We
will issue debt securities only in fully registered form, without coupons, and only in denominations of $1,000 and integral multiples
thereof, unless the prospectus supplement provides otherwise. The holder of a debt security may elect, subject to the terms of
the indentures and the limitations applicable to global securities, to exchange them for other debt securities of the same series
of any authorized denomination and of similar terms and aggregate principal amount.
Holders
of debt securities may present them for exchange as provided above or for registration of transfer, duly endorsed or with the
form of transfer duly executed, at the office of the transfer agent we designate for that purpose. We will not impose a service
charge for any registration of transfer or exchange of debt securities, but we may require a payment sufficient to cover any tax
or other governmental charge payable in connection with the transfer or exchange. We will name the transfer agent in the prospectus
supplement. We may designate additional transfer agents or rescind the designation of any transfer agent or approve a change in
the office through which any transfer agent acts, but we must maintain a transfer agent in each place where we will make payment
on debt securities.
If
we redeem the debt securities, we will not be required to issue, register the transfer of or exchange any debt security during
a specified period prior to mailing a notice of redemption. We are not required to register the transfer of or exchange of any
debt security selected for redemption, except the unredeemed portion of the debt security being redeemed.
Global
Securities
The
debt securities may be represented, in whole or in part, by one or more global securities that will have an aggregate principal
amount equal to that of all debt securities of that series. Each global security will be registered in the name of a depositary
identified in the prospectus supplement. We will deposit the global security with the depositary or a custodian, and the global
security will bear a legend regarding the restrictions on exchanges and registration of transfer.
No
global security may be exchanged in whole or in part for debt securities registered, and no transfer of a global security in whole
or in part may be registered, in the name of any person other than the depositary or any nominee or successor of the depositary
unless:
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the
depositary is unwilling or unable to continue as depositary; or
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the
depositary is no longer in good standing under the Securities Exchange Act of 1934, as amended, or “Exchange Act,”
or other applicable statute or regulation.
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The
depositary will determine how all securities issued in exchange for a global security will be registered.
As
long as the depositary or its nominee is the registered holder of a global security, we will consider the depositary or the nominee
to be the sole owner and holder of the global security and the underlying debt securities. Except as stated above, owners of beneficial
interests in a global security will not be entitled to have the global security or any debt security registered in their names,
will not receive physical delivery of certificated debt securities and will not be considered to be the owners or holders of the
global security or underlying debt securities. We will make all payments of principal, premium and interest on a global security
to the depositary or its nominee. The laws of some jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from transferring your beneficial interests in a global security.
Only
institutions that have accounts with the depositary or its nominee and persons that hold beneficial interests through the depositary
or its nominee may own beneficial interests in a global security. 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 only on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary or any such participant.
The
policies and procedures of the depositary may govern payments, transfers, exchanges and other matters relating to beneficial interests
in a global security. We and the trustee will assume no responsibility or liability for any aspect of the depositary’s or
any participant’s records relating to, or for payments made on account of, beneficial interests in a global security.
Payment
and Paying Agents
We
will pay principal and any premium or interest on a debt security to the person in whose name the debt security is registered
at the close of business on the regular record date for such interest.
We
will pay principal and any premium or interest on the debt securities at the office of our designated paying agent. Unless the
prospectus supplement indicates otherwise, the corporate trust office of the trustee will be the paying agent for the debt securities.
Any
other paying agents we designate for the debt securities of a particular series will be named in the prospectus supplement. We
may designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through
which any paying agent acts, but we must maintain a paying agent in each place of payment for the debt securities.
The
paying agent will return to us all money we pay to it for the payment of the principal, premium or interest on any debt security
that remains unclaimed for a specified period. Thereafter, the holder may look only to us for payment, as an unsecured general
creditor.
Consolidation,
Merger and Sale of Assets
Under
the terms of the indentures, so long as any securities remain outstanding, we may not consolidate or enter into a share exchange
with or merge into any other person, in a transaction in which we are not the surviving corporation, or sell, convey, transfer
or lease our properties and assets substantially as an entirety to any person, unless:
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the
successor assumes our obligations under the debt securities and the indentures; and
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we
meet the other conditions described in the indentures.
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Events
of Default
Each
of the following will constitute an event of default under each indenture:
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failure
to pay any interest on any debt security when due, for more than a specified number of days past the due date;
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failure
to pay any principal or deposit any sinking fund payment when due;
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failure
to perform any covenant or agreement in the indenture that continues for a specified number of days after written notice has
been given by the trustee or the holders of a specified percentage in aggregate principal amount of the debt securities of
that series;
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events
of bankruptcy, insolvency or reorganization; and
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any
other event of default specified in the prospectus supplement.
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If
an event of default occurs and continues, both the trustee and holders of a specified percentage in aggregate principal amount
of the outstanding securities of that series may declare the principal amount of the debt securities of that series to be immediately
due and payable. The holders of a majority in aggregate principal amount of the outstanding securities of that series may rescind
and annul the acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived.
Except
for its duties in case of an event of default, the trustee will not be obligated to exercise any of its rights or powers at the
request or direction of any of the holders, unless the holders have offered the trustee reasonable indemnity. If they provide
this indemnification and subject to conditions specified in the applicable indenture, the holders of a majority in aggregate principal
amount of the outstanding securities of any series may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities
of that series.
No
holder of a debt security of any series may institute any proceeding with respect to the indentures, or for the appointment of
a receiver or a trustee, or for any other remedy, unless:
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the
holder has previously given the trustee written notice of a continuing event of default;
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the
holders of a specified percentage in aggregate principal amount of the outstanding securities of that series have made a written
request upon the trustee, and have offered reasonable indemnity to the trustee, to institute the proceeding;
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the
trustee has failed to institute the proceeding for a specified period of time after its receipt of the notification; and
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the
trustee has not received a direction inconsistent with the request within a specified number of days from the holders of a
specified percentage in aggregate principal amount of the outstanding securities of that series.
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Modification
and Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
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In
addition, under the indentures, the rights of holders of a series of notes may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series
that is affected. However, we and the trustee may only make the following changes with the consent of the holder of any outstanding
debt securities affected:
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extending
the fixed maturity of the series of notes;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption,
of any debt securities; or
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reducing
the percentage of debt securities the holders of which are required to consent to any amendment.
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The
holders of a majority in principal amount of the outstanding debt securities of any series may waive any past default under the
indenture with respect to debt securities of that series, except a default in the payment of principal, premium or interest on
any debt security of that series or in respect of a covenant or provision of the indenture that cannot be amended without each
holder’s consent.
Except
in limited circumstances, we may set any day as a record date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or other action under the indentures. In limited
circumstances, the trustee may set a record date. To be effective, the action must be taken by holders of the requisite principal
amount of such debt securities within a specified period following the record date.
Defeasance
To
the extent stated in the prospectus supplement, we may elect to apply the provisions in the indentures relating to defeasance
and discharge of indebtedness, or to defeasance of restrictive covenants, to the debt securities of any series. The indentures
provide that, upon satisfaction of the requirements described below, we may terminate all of our obligations under the debt securities
of any series and the applicable indenture, known as legal defeasance, other than our obligation:
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to
maintain a registrar and paying agents and hold monies for payment in trust;
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to
register the transfer or exchange of the notes; and
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to
replace mutilated, destroyed, lost or stolen notes.
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In
addition, we may terminate our obligation to comply with any restrictive covenants under the debt securities of any series or
the applicable indenture, known as covenant defeasance.
We
may exercise our legal defeasance option even if we have previously exercised our covenant defeasance option. If we exercise either
defeasance option, payment of the notes may not be accelerated because of the occurrence of events of default.
To
exercise either defeasance option as to debt securities of any series, we must irrevocably deposit in trust with the trustee money
and/or obligations backed by the full faith and credit of the United States that will provide money in an amount sufficient in
the written opinion of a nationally recognized firm of independent public accountants to pay the principal of, premium, if any,
and each installment of interest on the debt securities. We may only establish this trust if, among other things:
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no
event of default shall have occurred or be continuing;
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in
the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from,
or there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion
of our counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
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in
the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of
the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred; and
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we
satisfy other customary conditions precedent described in the applicable indenture.
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We
may treat the person in whose name a debt security is registered as the absolute owner, whether or not such debt security may
be overdue, for the purpose of making payment and for all other purposes.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION
OF THE UNITS
We
may issue units comprised of one or more of the other classes of securities offered hereby in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security.
The
units may be, but are not required to be, issued under unit agreements to be entered into between us and a unit agent, as detailed
in the prospectus supplement relating to the units being offered. We will file as an exhibit to the registration statement of
which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, a form of the unit agreement
and unit certificate, if any, that sets forth the terms of the particular units we are offering. The summary of such terms contained
in this prospectus and in the applicable prospectus supplement is qualified in its entirety by reference to such unit agreement
and unit certificate. We urge you to read the unit agreement and unit certificate, if any, and the additional description of the
terms of the units included in the prospectus supplement.
The
prospectus supplement will describe the units and the price or prices at which we will offer the units. The description will include:
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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
descriptions of the units in this prospectus and in any prospectus supplement are summaries of the material provisions of the
applicable agreements.
PLAN
OF DISTRIBUTION OF SECURITIES
We
may sell or issue the securities offered by this prospectus from time to time in any one or more of the following ways:
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through
underwriters or dealers;
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through
agents;
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directly
to purchasers or a single purchaser; or
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through
a combination of any of these methods.
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The
manner in which we may sell some or all of the securities covered by this prospectus includes, without limitation, through:
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a
rights offering;
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exercises
of warrants or other rights;
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an
“at the market” offering, within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the
“Securities Act,” to or through a market maker or into an existing trading market on an exchange or otherwise;
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a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as
principal, in order to facilitate the transaction;
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purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account;
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ordinary
brokerage transactions and transactions in which a broker solicits purchasers; and
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privately
negotiated transactions.
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The
distribution of the securities may be effected from time to time in one or more transactions:
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at
a fixed price, or prices, which may be changed from time to time;
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at
market prices prevailing at the time of sale;
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at
varying prices determined at the time of sale; or
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at
negotiated prices.
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For
each offering of securities hereunder, we will describe the method of distribution of such securities, among other things, in
a prospectus supplement. A prospectus supplement will set forth the terms of the offering of the securities, including:
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the
name or names of any agents or underwriters;
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the
purchase price of the securities being offered and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
|
|
|
|
|
●
|
any
initial public offering price;
|
|
|
|
|
●
|
any
discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
|
|
●
|
any
securities exchanges or markets on which such securities may be listed.
|
Sales
Through Underwriters or Dealers
If
underwriters are used in the sale of the securities, the securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions. The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a syndicate. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions precedent
and the underwriters will be obligated to purchase all of the securities if any are purchased. Any initial public offering price
and any discounts or concessions allowed or paid to dealers may be changed from time to time.
If
a dealer is used in the sale of the securities, we will sell such securities to the dealer, as principal. The dealer may then
resell such securities to the public at varying prices to be determined by such dealer at the time of resale. We may negotiate
and pay dealers’ commissions, discounts or concessions for their services. Any such dealer may be deemed to be an underwriter,
as such term is defined in the Securities Act, of our securities so offered and sold.
Direct
Sales and Sales Through Agents
We
may sell the securities directly, in which case no underwriters or agents would be involved, or we may sell the securities through
agents designated by us from time to time. If agents are used in the sale of the securities, the agent will not purchase any securities
for its own account, but will arrange for the sale of the securities. Unless otherwise indicated in the prospectus supplement,
any agent will be acting on a best efforts basis for the period of its appointment. We may negotiate and pay agent’s fees
or commissions for their services. If the securities are sold directly by us, we may sell the securities 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.
Delayed
Delivery Contracts
We
may authorize underwriters, dealers or agents to solicit offers by institutional investors, such as commercial banks and investment
companies, to purchase the securities from us at the public offering price set forth in the prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified date in the future. The conditions to these contracts
and the commissions payable for solicitation of the contracts will be set forth in the applicable prospectus supplement.
At-the-Market
Offerings
Underwriters,
dealers or agents could make sales in an “at-the-market” offering, directly on the Nasdaq Capital Market, the existing
trading market for our common stock, Series W Warrants and Series Z Warrants, or such other exchange or automated quotation system
on which our securities trade, or to or through a market maker other than on an exchange.
Rights
Offerings
We
may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting
agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities
they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager
to manage a subscription rights offering for us.
Compensation
In
compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, all discounts, commissions or agency
fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will
be disclosed in the applicable prospectus supplement.
Indemnification
Any
underwriters and agents may be entitled to indemnification by us against certain civil liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which the agents or underwriters may be required to make in respect
of their liabilities.
Stabilization
Activities
During
and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions
may include over allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection
with the offering. The underwriters may also impose a penalty bid, whereby selling concessions allowed to syndicate members or
other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if such offered securities
are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open
market. If commenced, these activities may be discontinued at any time.
Passive
Market Making
Any
underwriters who are qualified market makers may engage in passive market making transactions in the securities in accordance
with Rule 103 of Regulation M.
Trading
Markets
Unless
otherwise specified in the applicable prospectus supplement, securities offered under this prospectus will be a new issue and,
other than the common stock, which is quoted on the Nasdaq Capital Market, will have no established trading market. We
may elect to list any other class or series of securities on an exchange, and in the case of the common stock, on any additional
exchange, but, unless otherwise specified in the applicable prospectus supplement, we shall not be obligated to do so. Any underwriters
to whom securities are sold for public offering and sale may make a market in the securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any time without notice. The securities may or may not be listed on
a national securities exchange or a foreign securities exchange. No assurance can be given as to the liquidity of the trading
market for any of the securities.
Other
Matters
Any
underwriters, dealers and agents, and their associates and affiliates may be customers of, have borrowing relationships with,
engage in other transactions with, or perform services, including investment banking services, for us or one or more of our respective
affiliates in the ordinary course of business.
We
will bear all costs, expenses and fees associated with the registration of the securities offered.
LEGAL
MATTERS
The
legality of the common stock offered by this prospectus has been passed upon by Graubard Miller, New York, New York. Graubard
Miller and its partners own warrants to purchase shares of our common stock, which represent, in the aggregate, beneficial ownership
of less than 1% of our common stock.
EXPERTS
The
consolidated financial statements of PAVmed Inc. and Subsidiaries as of December 31, 2019 and for the year then ended, which are
incorporated in this prospectus by reference to the Annual Report on Form 10-K, as amended, for the year ended December 31, 2019,
have been so incorporated in reliance on the report (which contains an explanatory paragraph to our ability to continue as a going
concern) of Marcum LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing
and accounting. The consolidated financial statements of PAVmed Inc. and Subsidiaries as of December 31, 2018 and for the year
then ended, which are incorporated in this prospectus by reference to the Annual Report on Form 10-K, as amended, for the year
ended December 31, 2019, have been so incorporated in reliance on the report (which contains an explanatory paragraph relating
to the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements)
of Citrin Cooperman & Company, LLP, an independent registered public accounting firm, given on the authority of said firm
as experts in auditing and accounting.
PAVmed
Inc.
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
DEBT
SECURITIES
UNITS
PROSPECTUS
_______,
2020
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14.
|
Other
Expenses of Issuance and Distribution.
|
The
estimated expenses in connection with the sale of the securities being registered hereby, are as follows:
SEC registration fee
|
|
$
|
1,276
|
|
FINRA filing fee
|
|
|
(1
|
)
|
Listing fees and expenses
|
|
|
(1
|
)
|
Accounting fees and expenses
|
|
|
(1
|
)
|
Legal fees and expenses
|
|
|
(1
|
)
|
Printing expenses
|
|
|
(1
|
)
|
Transfer agent fees and expenses
|
|
|
(1
|
)
|
Miscellaneous
|
|
|
(1
|
)
|
Total
|
|
|
(1
|
)
|
(1)
|
These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this
time.
|
All
expenses, other than the SEC registration fee, are estimated. The actual expenses incurred will depend on the securities offered,
the number of issuances and the nature of the offerings.
Item
15.
|
Indemnification
of Directors and Officers.
|
Section
145 of the Delaware General Company Law, concerning indemnification of directors, officers and other persons, is set forth below.
“Section
145. Indemnification of officers, directors, employees and agents; insurance.
“(a)
A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding
if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
“(b)
A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with
the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
“(c)
To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith.
“(d)
Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer of the corporation
at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though
less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
“(e)
Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents
of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another
corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
“(f)
The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement
of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an
amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative
or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision
in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission
has occurred.
“(g)
A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation
would have the power to indemnify such person against such liability under this section.
“(h)
For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
“(i)
For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references
to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
“(j)
The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
“(k)
The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors,
or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’
fees).”
PAVmed’s
certificate of incorporation provides that its directors and officers shall be entitled to be indemnified by it to the fullest
extent permitted by law. PAVmed shall pay the expenses incurred by its directors and officers in defending any action for which
indemnification may be available, upon receipt of an undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he or she is not entitled to be indemnified.
PAVmed’s
bylaws provide that (a) PAVmed shall indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of PAVmed) by reason of the fact that he is or was a director, officer, employee or agent of PAVmed, or is
or was serving at the request of PAVmed as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of PAVmed, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful, and (b) PAVmed shall indemnify any person who was
or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of
PAVmed to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of PAVmed,
or is or was serving at the request of PAVmed as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of PAVmed and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to PAVmed unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem proper.
PAVmed
also has entered into, and intends to continue to enter into, separate indemnification agreements with its directors and officers,
in addition to the indemnification provided for in its certificate of incorporation and bylaws. PAVmed also maintain directors’
and officers’ liability insurance.
PAVmed’s certificate of incorporation
provides that no director of PAVmed will be personally liable to PAVmed or any of its stockholders for monetary damages arising
from the director’s breach of fiduciary duty as a director. However, this does not apply (i) for any breach of the director’s
duty of loyalty to PAVmed or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for liability under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit. PAVmed’s bylaws extend these exculpatory provisions
to its officers.
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 of expenses incurred or paid by a director, officer or controlling person in
a 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 its counsel the matter has been settled by controlling
precedent, submit to the 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.
A
list of the exhibits required by Item 601 of Regulation S-K to be filed as part of this registration statement is set forth in
the Exhibit Index on page II-8.
(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 of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided,
however, that:
Paragraphs
(1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2)
That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
(i)
|
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
(j)
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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, hereunto duly authorized, in New York, New York on September 10, 2020.
|
PAVMED
INC.
|
|
|
|
By:
|
/s/
Lishan Aklog, M.D.
|
|
Name:
|
Lishan
Aklog, M.D.
|
|
Title:
|
Chairman
of the Board and Chief Executive Officer
|
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints Lishan Aklog, M.D. and Dennis M. McGrath, and each of them, with
full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution
and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign this registration statement,
any and all amendments thereto (including post-effective amendments), any subsequent registration statements pursuant
to Rule 462 of the Securities Act of 1933, and any amendments thereto and to file the same, with exhibits and schedules thereto,
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to
be done in and about the premises, as fully to 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 any of them, or their or his substitute or 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 by the following persons in the
capacities and on the dates indicated.
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
By:
|
/s/
Lishan Aklog, M.D.
|
|
Chief
Executive Officer and Chairman
|
|
September
10, 2020
|
|
Lishan
Aklog, M.D.
|
|
of
the Board (Principal Executive
|
|
|
|
|
|
Officer)
|
|
|
|
|
|
|
|
|
By:
|
/s/
Dennis M. McGrath
|
|
President
and Chief Financial Officer
|
|
September
10, 2020
|
|
Dennis
M. McGrath
|
|
(Principal
Financial Officer and
|
|
|
|
|
|
Principal
Accounting Officer)
|
|
|
|
|
|
|
|
|
By:
|
/s/
Michael J. Glennon
|
|
Vice
Chairman and Director
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September
10, 2020
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Michael
J. Glennon
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By:
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/s/
James L. Cox, M.D.
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Director
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September
10, 2020
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James
L. Cox, M.D.
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By:
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/s/
Ronald M. Sparks
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Director
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September
10, 2020
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Ronal
M. Sparks
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By:
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/s/
David Weild IV
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Director
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September
10, 2020
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David
Weild IV
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By:
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/s/
David S. Battleman, M.D.
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Director
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September
10, 2020
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David
S. Battleman, M.D.
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EXHIBIT
INDEX
Exhibit
No.
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Description
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1.1
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Form
of Underwriting Agreement.*
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3.1
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Certificate of Incorporation (incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-203569)).
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3.2
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Certificate of Amendment to Certificate of Incorporation, dated April 19, 2015 (incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-203569)).
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3.3
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Certificate of Amendment to Certificate of Incorporation, dated October 1, 2018 (incorporated by reference to the Registrant’s Current Report on Form 8-K filed on October 2, 2018).
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3.4
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Certificate of Amendment to Certificate of Incorporation, dated June 26, 2019 (incorporated by reference to the Registrant’s Current Report on Form 8-K filed on June 27, 2019).
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3.5
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Certificate of Amendment to Certificate of Incorporation, dated July 24, 2020 (incorporated by reference to the Registrant’s Current Report on Form 8-K filed on July 27, 2020).
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3.6
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Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to the Registrant’s Current Report on Form 8-K/A filed on April 20, 2018).
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3.7
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Certificate of Elimination of Series A Convertible Preferred Stock and Series A-1 Convertible Preferred Stock (incorporated by reference to the Registrant’s Current Report on Form 8-K/A filed on April 20, 2018).
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3.8
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Bylaws (incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-203569)).
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4.1
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Specimen Common Stock Certificate (incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-203569)).
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4.2
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Specimen Series W Warrant Certificate (incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-203569)).
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4.3
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Specimen Series Z Warrant Certificate (incorporated by reference to the Registrant’s Current Report on Form 8-K filed on June 8, 2018).
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4.4
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Preferred
Stock Certificate of Designations.*
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4.5
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Warrant
Agreement.*
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4.6
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Form of Indenture for Senior Debt Securities between the Registrant and Trustee to be designated.
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4.7
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Form of Indenture for Subordinated Debt Securities between the Registrant and Trustee to be designated.
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4.8
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Unit
Agreement.*
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5.1
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Opinion of Graubard Miller.
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10.1
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Form
of Securities Purchase Agreement.*
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23.1
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Consent of Marcum LLP.
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23.2
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Consent of Citrin Cooperman & Company, LLP.
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23.3
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Consent of Graubard Miller (included in its opinion filed as Exhibit 5.1).
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24.1
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Power of Attorney (set forth on signature page).
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25.1
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Statement
of Eligibility of Trustee on Form T-1 with respect to the Senior Debt Indenture.**
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25.2
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Statement
of Eligibility of Trustee on Form T-1 with respect to the Subordinated Debt Indenture.**
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*
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To
be filed, if applicable, subsequent to the effectiveness of this registration statement
by an amendment to this registration statement or by incorporation by reference
through a Current Report on Form 8-K filed in connection with an offering of securities.
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**
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To
be filed, if applicable, by amendment or pursuant to the Section 305(b)(2) of Trust Indenture Act of 1939, as amended.
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