Filed Pursuant to Rule 424(b)(4)
Registration No. 333-278006
PROSPECTUS
1,160,000 Shares of Common Stock
15,717,638 Pre-funded Warrants to Purchase upto 15,717,638 Shares of Common
Stock
16,877,638 Series A-1 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
16,877,638 Series A-2 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
16,877,638 Series A-3 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
1,012,658 Placement Agent Warrants to Purchaseup to 1,012,658 Shares of Common
Stock
Up to 67,363,210 Shares of Common StockIssuable Upon Exercise of
the Series A-1 Warrants, Series A-2 Warrants,Series A-3 Warrants, Pre-funded
Warrants and Placement Agent Warrants
We are offering 1,160,000 shares of common stock,together with accompanying
Series A-1 warrants (the "Series A-1 Warrants") to purchase up to 1,160,000
shares of commonstock, Series A-2 warrants (the "Series A-2 Warrants") to
purchase up to 1,160,000 shares of common stock, and Series A-3warrants to
purchase up to 1,160,000 shares of common stock (the "Series A-3 Warrants" and
collectively with the Series A-1Warrants and Series A-2 Warrants, the
"Warrants"), pursuant to this prospectus. The combined public offering price
for eachshare of common stock, together with one Series A-1 Warrant, one
Series A-2 Warrrant and one Series A-3 Warrant, each to purchase oneshare of
common stock, is $0.237, which is equal to the
last reported sale price of our common stockon the Nasdaq Capital Market on
April 29, 2024.
The shares of common stock and Warrants will be separately issued. EachWarrant
will have an exercise price of $0.237 per share, will be exercisable beginning
on the effective date of stockholder approval ofthe issuance of the shares
upon exercise of the Warrants ("Warrant Stockholder Approval"). The Series A-1
Warrant will expireon the five-year anniversary of the Warrant Stockholder
Approval. The Series A-2 Warrant will expire on the twenty four month
anniversaryof the Warrant Stockholder Approval. The Series A-3 Warrant will
expire on the nine month anniversary of the Warrant Stockholder Approval.
We are also offering 15,717,638 pre-fundedwarrants (the "pre-funded
warrants"), together with accompanying Series A-1 warrants to purchase up to
15,717,638 sharesof common stock, Series A-2 warrants to purchase up to
15,717,638 shares of common stock, and Series A-3 warrants to purchase up to
15,717,638shares of common stock to those purchasers whose purchase of shares
of common stock in this offering would result in the purchaser, togetherwith
its affiliates and certain related parties, beneficially owning more than
4.99% (or, at the election of the purchaser, 9.99%) ofour outstanding common
stock following the consummation of this offering or if such purchaser
otherwise elects to purchase pre-fundedwarrants, in lieu of the shares of our
common stock that would result in ownership in excess of 4.99% (or, at the
election of the purchaser,9.99%). Each pre-funded warrant will be exercisable
for one share of common stock at an exercise price of $0.0001 per share. Each
pre-fundedwarrant is being issued together with the same Warrants described
above being issued with each share of common stock. The combined publicoffering
price for each such pre-funded warrant, together with accompanying Warrants,
is $0.2369, which is
thecombined public offering price per share and Warrants (
equal to the
last reported sale priceof our common stock on Nasdaq on April 29, 2024),
minus $0.0001
. Each pre-funded warrant will be exercisable upon issuanceand may be
exercised at any time until all of the pre-funded warrants are exercised in
full. The pre-funded warrants and accompanyingWarrants are immediately
separable and will be issued separately in this offering. This prospectus also
relates to the offering of theshares of common stock issuable upon exercise of
the Warrants, pre-funded warrants and Placement Agent Warrants (as defined
herein).
2
There is no established public trading marketfor the Warrants or the
pre-funded warrants, and we do not expect a market to develop. We do not
intend to apply for listing of the Warrantsor the pre-funded warrants on any
securities exchange or other nationally recognized trading system. Without an
active trading market,the liquidity of the Warrants and the pre-funded
warrants will be limited.
The securities will be offered at a fixed combinedpublic offering price and
are expected to be issued in a single closing. We expect this offering to be
completed on or about May 2, 2024,and we will deliver all securities to be
issued in connection with this offering delivery versus payment/receipt versus
payment upon receiptby us of investor funds. Accordingly, neither we nor the
placement agent have made any arrangements to place investor funds in an
escrowaccount or trust account since the placement agent will not receive
investor funds in connection with the sale of the securities offeredhereunder.
We have engaged H.C. Wainwright & Co.,LLC (the "Placement Agent"), to act as
our exclusive placement agent in connection with this offering. The Placement
Agenthas agreed to use its reasonable best efforts to arrange for the sale of
the securities offered by this prospectus. The Placement Agentis not
purchasing or selling any of the securities we are offering and the Placement
Agent is not required to arrange the purchase orsale of any specific number of
securities or dollar amount. We have agreed to pay to the Placement Agent the
Placement Agent fees setforth in the table below, which assumes that we sell
all of the securities offered by this prospectus. There is no minimum number
of securitiesor amount of proceeds required as a condition to closing in this
offering. Because there is no minimum offering amount required as a
conditionto closing this offering, we may sell fewer than all of the
securities offered hereby, which may significantly reduce the amount of
proceedsreceived by us, and investors in this offering will not receive a
refund in the event that we do not sell an amount of securities sufficientto
pursue our business goals described in this prospectus.
In addition, because there is noescrow trust or similar arrangement and no
minimum offering amount, investors could be in a position where they have
invested in our company,but we are unable to fulfill all of our contemplated
objectives due to a lack of interest in this offering. Further, any proceeds
fromthe sale of securities offered by us will be available for our immediate
use, despite uncertainty about whether we would be able to usesuch funds to
effectively implement our business plan
. We will bear all costs associated with the offering. See "Plan ofDistribution"
on page 46 of this prospectus for more information regarding these
arrangements.
Our common stock is listed on the Nasdaq CapitalMarket under the symbol
"MBIO". On April 29, 2024, the last reported sale price of our common stock on
the Nasdaq CapitalMarket was $0.237 per share.
The combined offering price per share of commonstock and accompanying Warrants
and the combined offering price per pre-funded warrant and accompanying
Warrants we are offering and theexercise price and other terms of the Warrants
were negotiated between us and the purchasers, in consultation with the
Placement Agentbased on the trading of our common stock prior to this
offering, among other factors. Other factors considered in determining the
offeringprice of the securities we are offering and the exercise price and
other terms of the Warrants include the history and prospects of ourcompany,
the stage of development of our business, our business plans for the future
and the extent to which they have been implemented,an assessment of our
management, general conditions of the securities markets at the time of the
offering and such other factors as weredeemed relevant.
We are a "smaller reporting company"as defined under federal securities laws
and, as such, have elected to comply with certain reduced public company
reporting requirementsfor this prospectus and the documents incorporated by
reference herein and may elect to comply with reduced public company reporting
requirementsin future filings. See "Prospectus Summary--Implications of Being
a Smaller Reporting Company."
3
Investing in our securities involves risks.Before deciding whether to invest
in our securities, you should consider carefully the risks that we have
described on page 19 ofthis prospectus under the caption "Risk Factors" and
under similar headings in other documents incorporated by referenceinto this
prospectus.
Per Share and Per Pre- Total
Accompanying Funded
Warrants Warrant and
Accompanying
Warrants
Public offering price $ 0.237 $ 0.2369 $ 4,000,000
Placement Agent's fees $ 0.017 $ 0.017 $ 280,000
(1)
Proceeds to us, before expenses $ 0.022 $ 0.02199 $ 3,720,000
(2)
(1) We have agreed to pay the Placement Agent a total cash fee equal
to 7.0% of the gross proceeds raised in this offering. We
have also agreed to pay the Placement Agent a management fee
equal to 1.0% of the gross proceeds raised in this offering and
to reimburse the Placement Agent for its non-accountable expenses
in the amount of $25,000 and for its legal fees and expenses
and other out-of-pocket expenses in an amount up to $100,000,
and for its clearing expenses in the amount of $15,950. In
addition, we have agreed to issue to the Placement Agent, or its
designees, warrants to purchase a number of shares of our common
stock equal to 6.0% of the aggregate number of shares of common
stock and pre-funded warrants being offered at an exercise
price equal to 125% of the combined public offering price per
share of common stock and accompanying Warrants. We refer you
to "Plan of Distribution" on page 46 of this prospectus for
additional information regarding Placement Agent compensation.
(2) Because there is no minimum number of securities or amount of proceeds required as a condition to closing in this
offering, the actual offering amount, Placement Agent fees, and proceeds to us, if any, are not presently determinable
and may be substantially less than the total maximum offering amounts set forth above. We refer you to "Plan of
Distribution" on page 46 of this prospectus for additional information regarding Placement Agent compensation.
Neither the Securities and Exchange Commissionnor any other regulatory body
has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus.Any representation to the contrary is a criminal
offense.
We expect to deliver the securities to the purchasersin the offering on or
about May 2, 2024, subject to satisfaction of certain conditions.
H.C. Wainwright &Co.
April 29, 2024
4
TABLE OF CONTENTS
Page
About this Prospectus 6
Prospectus Summary 7
Risk Factors 20
Special Note Regarding Forward-Looking Statements 24
Use of Proceeds 26
Dividend Policy 27
Capitalization 28
Dilution 30
Material U.S. Federal Income Tax Consequences 32
Description of Capital Stock 39
Description of Securities We are Offering 41
Plan of Distribution 47
Legal Matters 50
Experts 50
Where You Can Find Additional Information 50
Incorporation of Certain Information by Reference 51
5
ABOUT THISPROSPECTUS
The registration statementwe filed with the Securities and Exchange Commission
(the "SEC") includes exhibits that provide more detail of the mattersdiscussed
in this prospectus. You should read this prospectus, the related exhibits
filed with the SEC, and the documents incorporatedby reference herein before
making your investment decision. You should rely only on the information
provided in this prospectus and thedocuments incorporated by reference herein
or any amendment thereto. You should not assume that the information contained
in this prospectusor any related free writing prospectus is accurate on any
date subsequent to the date set forth on the front of the document or thatany
information we have incorporated by reference herein is correct on any date
subsequent to the date of the document incorporated byreference, even though
this prospectus or any related free writing prospectus is delivered, or
securities are sold, on a later date.This prospectus contains or incorporates
by reference summaries of certain provisions contained in some of the
documents described herein,but reference is made to the actual documents for
complete information. All of the summaries are qualified in their entirety by
the actualdocuments. Copies of some of the documents referred to herein have
been or will be filed or have been or will be incorporated by referenceas
exhibits to the registration statement of which this prospectus forms a part,
and you may obtain copies of those documents as describedin this prospectus
supplement under the heading "Where You Can Find More Information."
You should rely onlyon the information that we have included or incorporated
by reference in this prospectus and any related free writing prospectus thatwe
may authorize to be provided to you. Neither we, nor the placement agent, have
authorized any dealer, salesman or other person togive any information or to
make any representation other than those contained or incorporated by
reference in this prospectus or anyrelated free writing prospectus that we may
authorize to be provided to you. You must not rely upon any information or
representationnot contained or incorporated by reference in this prospectus or
any related free writing prospectus. This prospectus and any relatedfree
writing prospectus do not constitute an offer to sell or the solicitation of
an offer to buy any securities other than the registeredsecurities to which
they relate, nor does this prospectus or any related free writing prospectus
constitute an offer to sell or the solicitationof an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
When we refer to "Mustang," "we," "our," "us" and the "Company" in this
prospectus, we mean Mustang Bio, Inc.,unless otherwise specified. When we
refer to "you," we mean the potential holders of the applicable securities.
Solelyfor convenience, tradenames referred to in this prospectus appear
without the
(R)
and
TM
symbols,but those references are not intended to indicate, in any way, that we
will not assert, to the fullest extent under applicable law, ourrights, or
that the applicable owner will not assert its rights, to these tradenames.
6
PROSPECTUSSUMMARY
Thissummary highlights information contained elsewhere in this prospectus.
This summary is not complete and does not contain all of the informationyou
should consider in making your investment decision.
Beforeinvesting in our common stock, you
should carefully read the entire prospectus, including the risks of investing
in our securitiesdiscussed under the heading "Risk Factors," "Special Note
Regarding Forward-Looking Statements" and under similarheadings in the other
documents that are incorporated by reference into this prospectus. You should
also carefully read the informationincorporated by reference into this
prospectus, including our financial statements, and the exhibits to the
registration statement ofwhich this prospectus is a part. Unless the context
otherwise requires, the terms "Mustang" "Mustang Bio" "theCompany," "we,"
"us," "our" and similar references in this prospectus refer to Mustang Bio,
Inc.,
the registrant on the cover page of the registration statement of whichthis
prospectus forms a part.
Our Business
Overview and Product Candidate Development
We are a clinical-stage biopharmaceutical companyfocused on translating
today's medical breakthroughs in cell and gene therapies into potential cures
for hematologic cancers, solidtumors and rare genetic diseases. We aim to
acquire rights to these technologies by licensing or otherwise acquiring an
ownership interestin the technologies, funding their research and development
and eventually either out-licensing or bringing the technologies to market.
Our pipeline is currently focused in two coreareas: CAR T therapies for
hematologic malignancies and CAR T therapies for solid tumors. For these
therapies we have partnered withworld class research institutions, including
the City of Hope National Medical Center ("COH" or "City of Hope"),Fred
Hutchinson Cancer Center ("Fred Hutch"), Nationwide Children's Hospital
("Nationwide") and the MayoFoundation for Medical Education and Research
("Mayo Clinic").
CAR T Therapies
Our pipeline of CAR T therapies is being developedunder exclusive licenses
from several world class research institutions. Our strategy is to license
these technologies, support preclinicaland clinical research activities by our
partners and transfer the underlying technology to our or our contract
manufacturer's cellprocessing facility in order to conduct our own clinical
trials.
Weare developing CAR T therapy for hematologic malignancies in partnership
with Fred Hutch targeting CD20 (MB-106). In May 2021, weannounced that the
U.S. Food and Drug Administration ("FDA") accepted our Investigational New
Drug ("IND") Applicationfor MB-106. As of December 2023, approximately 40
patients have been treated in an ongoing phase 1 clinical trial sponsored by
FredHutch (ClinicalTrials.gov Identifier: NCT03277729), and approximately 20
patients have been treated in an ongoing phase 1 clinical trialsponsored by us
(ClinicalTrials.gov Identifier: NCT05360238
). In 2023, we received Safety Review Committee approval to continuedose
escalation in all three active arms of the ongoing Mustang-sponsored phase 1
trial. We presented the latest results, demonstratinga favorable safety
profile, complete response rate, and durability, from the ongoing
Mustang-sponsored phase 1 trial at the 2023 AmericanSociety of Hematology
("ASH") Annual Meeting. As of December 31, 2023, the MB-106 Mustang-sponsored
phase 1 trial ispending one patient to complete the final dose level required
to advance to phase 2 pivotal studies for treatment of patients with
relapsedor refractory indolent B-cell non-Hodgkin lymphoma.
7
We are also developing CAR T therapy for solidtumors in partnership with COH
targeting IL13Rα2 (MB-101). In addition, we have partnered with
Nationwide for a herpes simplexvirus type 1 ("HSV-1") oncolytic virus (MB-108)
in order to enhance the activity of MB-101 for the treatment of patientswith
high-grade malignant brain tumors. The Phase 1 clinical trial sponsored by COH
for MB-101 (ClinicalTrials.gov Identifier: NCT02208362)has completed the
treatment phase and patients continue to be assessed for long-term safety. A
Phase 1 clinical trial sponsored by theUniversity of Alabama at Birmingham
("UAB") for MB-108 (ClinicalTrials.gov Identifier: NCT03657576) began during
the thirdquarter of 2019. In October 2023, we announced that the FDA accepted
our IND application for the combination of MB-101 and MB-108 - which is
referred to as MB-109 - for the treatment of patients with
IL13Rα2+
relapsed or refractory glioblastoma("GBM") and high-grade astrocytoma.
Finally, we are collaborating with the Mayo Clinicto develop a novel
technology that may be able to transform the administration of CAR T therapies
and potentially be used as an off-the-shelftherapy. We are evaluating plans to
file an IND application for a multicenter Phase 1 clinical trial once a lead
construct has been identified,subject to allocation of resources.
On May 18, 2023, we announced a series ofchanges resulting from a review of
our portfolio of product candidates to determine the future strategy of our
programs and the properallocation of our resources. Following this review, we
determined to discontinue development of our MB-102 (CD123), MB-103 (HER2),
MB-104(CS1) and MB-105 (PSCA) programs, all of which were CAR T therapies
being developed in partnership with City of Hope.
Terminated Gene Therapy Product Candidates
We formerly developed several gene therapy productcandidates, which included
MB-117 and MB-217 (based on technologies licensed from St. Jude Children's
Research Hospital ("St.Jude")) and MB-110 (based on technologies licensed from
Leiden University Medical Centre ("LUMC")). In April 2024,we entered into a
termination and release agreement with St. Jude, pursuant to which we agreed
to terminate the license agreement underpinningthe MB-117 and MB-217 product
candidates in exchange for a mutual release of liability and forgiveness by
St. Jude of all amounts previouslyowing to them. Also in April 2024, we
delivered a termination notice to LUMC pursuant to which we terminated the
license agreement underpinningthe MB-110 product candidate; we are currently
in discussions with LUMC regarding the terms that will govern such termination.
8
To date, we have not received approval for thesale of any of our product
candidates in any market and, therefore, have not generated any product sales
from our product candidates.In addition, we have incurred substantial
operating losses since our inception, and expect to continue to incur
significant operatinglosses for the foreseeable future and may never become
profitable. As of December 31, 2023, we have an accumulated deficitof $381.0
million.
Therapeutic Pipeline
Therapies for Oncology and HematologicMalignancies
MB-106 (CD20 CAR T for B cell non-Hodgkinlymphoma (NHL) and chronic
lymphocytic leukemia (CLL))
We believe CD20 is a promising target for immunotherapyof B-cell malignancies.
CD20 is a B-cell lineage-specific phosphoprotein that is expressed in high,
homogeneous density on the surfaceof more than 95% of B-cell NHL and CLL. CD20
is stable on the cell surface with minimal shedding, internalization, or
modulation uponantibody binding and is present at only nanomolar levels as a
soluble antigen. It is well established as an effective immunotherapy
target,with extensive studies demonstrating improved tumor responses and
survival of B-NHL patients treated with rituximab and other anti-CD20antibodies.
Importantly, CD20 continues to be expressed on the lymphoma cells of most
patients with relapsed B-NHL despite repetitiverituximab treatments, and loss
of CD20 expression is not a major contributor to treatment resistance. Thus,
there is strong rationalefor testing CD20 CAR T cells as an immunotherapy for
NHL.
More than 80,000 new cases of NHL are diagnosedeach year in the United States,
and over 20,000 patients die of this group of diseases annually. Most forms of
NHL, including follicularlymphoma, mantle cell lymphoma, marginal zone
lymphoma, lymphoplasmacytic lymphoma, and small lymphocytic lymphoma
("SLL"),which account collectively for approximately 45% of all cases of NHL,
are incurable with available therapies, except for allogenic stemcell
transplant ("allo-SCT"). However, many NHL patients are not suitable
candidates for allo-SCT, and this treatment isalso limited by significant
rates of morbidity and mortality due to graft-versus-host disease. Aggressive
B-cell lymphomas such as diffuselarge B-cell lymphoma, the most common subtype
of lymphoma, account for an additional 30-35% of NHL. The majority of patients
with aggressiveB-NHL are successfully treated with combination chemotherapy,
but a significant proportion relapse or have refractory disease, and
theoutcome of these patients is poor. Innovative new treatments are therefore
urgently needed.
Chroniclymphocytic leukemia/small lymphocytic lymphoma (CLL/SLL) is a mature B
cell neoplasm characterized by a progressive accumulation ofmonoclonal B
lymphocytes. CLL is considered to be identical (i.e., one disease with
different manifestations) to the NHL SLL. The malignantcells seen in CLL and
SLL have identical pathologic and immunophenotypic features. The term CLL is
used when the disease manifests primarilyin the blood, whereas the term SLL is
used when involvement is primarily nodal.
CLLis the most common leukemia in adults in Western countries, accounting for
approximately 25 to 35 percent of all leukemias in the UnitedStates. An
estimated 20,700 new cases of CLL will be diagnosed in the United States in
2024. CLL is considered to be mainly a diseaseafflicting older adults, with a
median age at diagnosis of approximately 70 years; however, it is not unusual
to make this diagnosisin younger individuals (e.g., from approximately 30 to
39 years of age). The incidence increases rapidly with increasing age. The
naturalhistory of CLL is extremely variable, with survival times from initial
diagnosis that range from approximately 2 to 20 years, and a mediansurvival of
approximately 10 years.
Mostpatients will have a complete or partial response to initial therapy.
However, conventional therapy for CLL is not curative and mostpatients
experience relapse. In addition, many patients will require a change in
therapy due to intolerance. Since patients withCLL are generally elderly with
a median age older than 70 years, and due to the relatively benign course of
the disease in the majorityof patients, only selected patients are candidates
for intensive treatments such as allo-SCT.
Innovative new treatments with afavorable safety profile are therefore
urgently needed for patients with relapsed and refractory disease.
9
Under their IND, Fred Hutch is currently conductinga Phase 1/2 clinical study
to evaluate the anti-tumor activity and safety of administering CD20-directed
third-generation CAR T cellsincorporating both 4-1BB and CD28 co-stimulatory
signaling domains (MB-106) to patients with relapsed or refractory B-cell NHL
or CLL(ClinicalTrials.gov Identifier: NCT03277729). Secondary endpoints of
this study include safety and toxicity, preliminary antitumor activityas
measured by overall response rate and complete remission rate, progression-free
survival, and overall survival. The study is alsoassessing CAR T cell
persistence and the potential immunogenicity of the cells. Finally, this study
was designed so that, together withFred Hutch, we could determine a
recommended Phase 2 dose. Fred Hutch intends to enroll approximately 50
subjects in this study, whichis being led by the Principal Investigator Mazyar
Shadman, M.D., M.P.H., Associate Professor of Fred Hutch's Clinical
ResearchDivision.
The Fred Hutch IND was amended in 2019 to incorporatean optimized
manufacturing process that had been developed in collaboration with us.
In May 2021, we announced that the FDA issueda safe to proceed letter for our
IND application allowing for initiation of a multi-center Phase 1/2 clinical
study of MB-106 in patientswith relapsed or refractory B cell NHL or CLL
(Clinicaltrials.gov Identifier: NCT05360238). In August 2022, the first
patient wastreated in our study.
In November 2021, Mustang was awarded agrant of approximately $2.0 million
from NCI of the National Institutes of Health. This two-year award partially
funded the Mustang-sponsoredmulticenter trial to assess the safety,
tolerability and efficacy of MB-106. In August 2023, we fully utilized the
grant.
In June 2022, MB-106 received Orphan DrugDesignation for the treatment of
Waldenstrom macroglobulinemia ("WM").
In December 2023, we presented preliminaryclinical data for the indolent
lymphoma patients treated in the ongoing Phase 1/2 clinical study at the
American Society of Hematology(ASH) annual meeting. All 9 patients responded
clinically to treatment; the observed overall response rate was 100%. All 5
follicularlymphoma patients achieved a complete response. Among the WM
patients 1 patient attained a very good partial response, and 2 patientsattained
a partial response. The single patient with a hairy cell leukemia variant
experienced stable disease. The safety profile demonstratedthat MB-106 was
well tolerated with no occurrences of cytokine release syndrome ("CRS") above
grade 1, and no immune effectorcell-associated neurotoxicity syndrome
("ICANS") of any grade was reported. Cell expansion and persistence were also
demonstrated.
In the first quarter of 2024, we completed asuccessful End-of-Phase 1 meeting
with the FDA regarding a potential pivotal Phase 2 single-arm clinical trial
for the treatment of WM.Per the discussions, the FDA agreed with the proposed
overall design of the pivotal trial for WM at the recommended dose of 1 x 10
7
CAR-T cells/kg and requested only minimal modifications to the study protocol.
No additional nonclinical studies are expected priorto Phase 2 or a Biologics
License Application ("BLA") filing. Due to limited resources, and as a result
of the reductionin work force described below, we do not expect to initiate
our pivotal Phase 2 single-arm clinical trial of MB-106 for the treatmentof WM
trial in 2024. Subject to available funds, we intend rely on third party
service providers to conduct study and manufacturing servicesto advance our
priority potential product candidates.
Also in the first quarter of 2024, we completedenrollment of the indolent
lymphoma arm in our multicenter Phase 1 trial. The tenth and final patient
enrolled was a patient with follicularlymphoma (FL) who achieved a complete
response following treatment with 1 x 10
7
CAR-T cells/kg. As a result, the overall completeresponse rate for FL in the
Phase 1 portion of this trial was sustained at 100% (N=6), with no occurrence
of CRS above grade 1 and noICANS of any grade, despite not using prophylactic
tocilizumab or dexamethasone.
In March 2024, we announced plans to collaboratewith Fred Hutch for a
proof-of-concept Phase 1 investigator-sponsored clinical trial evaluating
MB-106 in autoimmune diseases.
In March 2024, we were granted the RegenerativeMedicine Advanced Therapy
("RMAT") designation by the FDA for the treatment of relapsed or refractory
CD20 positive WM andFL, based on potential improvement in response as seen in
clinical data-to-date. Drugs eligible for RMAT designation are those
intendedto treat, modify, reverse or cure a serious or life-threatening
disease or condition, and that present preliminary clinical evidenceindicating
the drug has the potential to address unmet medical needs for such disease or
condition. RMAT designation provides regenerativemedicine advanced therapy
products with the same benefits to expedite the development and review of a
marketing application that areavailable to drugs that receive Breakthrough
Therapy Designation. These advantages include timely advice and interactive
communicationswith FDA, as well as proactive and collaborative involvement by
senior FDA managers and experienced review and regulatory health projectmanageme
nt staff. A product designated as an RMAT also may be eligible for other
FDA-expedited programs, such as Priority Review. TheFDA also may conduct a
rolling review of products in its expedited programs, reviewing portions of a
marketing application before thecomplete application is submitted.
MB-109: Combination MB-101(IL13Rα2 CART Cell Program for Glioblastoma)
and MB-108 (HSV-1 oncolytic virus C134) as a Potential Treatment for
IL13Rα2+ Relapsed or RefractoryGlioblastoma (GBM) and High-Grade
Astrocytoma
An attractive novel approach to control glioblastomais adoptive cellular
immunotherapy utilizing CAR T cells. CAR T cells can be engineered to
recognize very specific antigenically distincttumor populations and to migrate
through the brain parenchyma to kill malignant cells. In addition, oncolytic
viruses ("OVs")have been developed to effectively infect and kill cancer cells
in the tumor, as well as modify the microenvironment to increase tumorimmunogeni
city and immune cell trafficking within the tumor. Due to these properties,
OVs have been studied in combination with othertreatments to enhance the
effectiveness of immunotherapies.
10
Preliminary anti-tumor activity has been observedin clinical studies
administering the OV (MB-108) and CAR T cell therapy (MB-101) as single
agents; however, the combination has notyet been explored. To determine if the
combination of both therapies will result in a synergistic effect,
investigators from COH developedpreclinical studies in orthotopic GBM models
in nude mice. Dr. Christine Brown from City of Hope presented these
preclinical studiesat the American Association for Cancer Research 2022 Annual
Meeting. It was observed that co-treatment with HSV-1 OV and IL13Rα2-direc
tedCAR-T cells resulted in no additional adverse events beyond those seen with
the individual therapies, and, more notably, that pre-treatmentwith HSV-1 OV
re-shaped the tumor microenvironment by increasing immune cell infiltrates and
enhanced the efficacy of sub-therapeuticdoses of IL13Rα2-directed CAR-T
cell therapy delivered either intraventricularly or intratumorally. These
preclinical studies aimedto provide a deeper understanding of this combination
approach to support the potential benefit of a combination study that will
evaluateHSV-1 OV (MB-108) and IL13Rα2-directed CAR-T cells (MB-101).
In October 2023, we received a safe-to-proceed "approval" from the FDA for our
MB-109 IND application allowing us to initiate a Phase 1, open-label,
non-randomized, multicenterstudy of MB-109 in patients with IL13Rα2+
recurrent GBM and high-grade astrocytoma. In this Phase 1 clinical study, we
intend toevaluate the combination of CAR-T cells (MB-101) and the herpes
simplex virus type 1 oncolytic virus (MB-108) in patients with IL13Rα2+hig
h-grade gliomas. The design of this study involves first a lead in cohort,
wherein patients are treated with MB-101 alone withoutprior MB-108
administration. After successful confirmation of the safety profile of MB-101
alone, the study will then investigate increasingdoses of intratumorally
administered MB-108 followed by dual intratumoral (ICT) and intraventricular
(ICV) administration of MB-101.Due to limited resources, we do not currently
expect to initiate this study until such time, if any, that additional
resources becomeavailable to us.
MB-101 (IL13Rα2 CAR T Cell Program forGlioblastoma)
GBM is the most common brain and central nervoussystem ("CNS") cancer,
accounting for approximately 49.1% of malignant primary brain and CNS tumors,
approximately 54% ofall gliomas, and approximately 16% of all primary brain
and CNS tumors. More than 14,490 new GBM cases were predicted to be
diagnosedin the U.S. for 2023. Malignant brain tumors are the second leading
cause of cancer-related deaths in adolescents and young adults aged15-39 and
the most common cancer occurring among 15-19-year-olds in the U.S. While GBM
is a rare disease 2-3 cases per 100,000 personsper year in the U.S. and
European Union ("EU"), it is quite lethal, with five-year survival rate
historically under10%, which has been virtually unchanged for decades.
Standard of care therapy consists of maximal surgical resection, radiation,
andchemotherapy with temozolomide, which, while rarely curative, is shown to
extend median overall survival from 4.5 to 15 months.GBM remains difficult to
treat due to the inherent resistance of the tumor to conventional therapies.
Immunotherapy approaches targeting brain tumorsoffer promise over conventional
treatments. IL13R
α
2 is an attractive target for CAR T therapy, as it has limited expressionin
normal tissue but is overexpressed on the surface of greater than 50% of GBM
tumors. CAR-T cells are designed to express membrane-tetheredIL-13 receptor
ligand ("IL-13") mutated at a single site (glutamic acid at position 13 to a
tyrosine; E13Y) with high affinityfor IL13Rα2 and reduced binding to
IL13Rα1 in order to reduce healthy tissue targeting (Kahlon KS
et al. Cancer Research.
2004;64:9160-9166).
We are developing an optimized CAR-T productincorporating enhancements in
CAR-T design and T cell engineering to improve antitumor potency and T cell
persistence. These includea second-generation hinge-optimized CAR containing
mutations in the IgG4 linker to reduce off-target Fc interactions
(Jonnalagadda M
et al. Molecular Therapy.
2015;23(4):757-768.), a 4-1BB (CD137) co-stimulatory signaling domain for
improved survival and maintenanceof CAR T cells, and the extracellular domain
of CD19 as a selection/tracking marker. In order to further improve
persistence, eithercentral memory T-cells (T
CM
) or enriched CD62L+ naive and memory T cells (T
N/MEM
) are isolated and enriched.Our manufacturing process limits
ex vivo
expansion, which is designed to reduce T cell exhaustion and maintain a T
CM
or T
N/MEM
phenotype. Based on experiments with CAR-Ts in mouse xenograft models of GBM,
these CAR-modified T
CM
and T
N/MEM
cells have been shown to be more potent and persistent than earlier
generations of CAR-T cells.
11
Our academic partners at COH have recently completedthe treatment phase of
their Phase 1 study, which was designed to assess the feasibility and safety
of using T
CM
or T
N/MEM
enriched IL13Rα2-specific CAR-engineered T cells for clinical study
participants with IL13Rα2 recurrent/refractorymalignant glioma
(ClinicalTrials.gov Identifier: NCT02208362). In this study, COH enrolled and
treated 65 patients, with 58 patientsreceiving 3 cycles of CAR T cells per the
study protocol. MB-109: Combination MB-101(IL13Rα2 CAR T Cell Program
for Glioblastoma)and MB-108 (HSV-1 oncolytic virus C134) as a Potential
Treatment for IL13Rα2+ Relapsed or Refractory Glioblastoma (GBM) and
High-GradeAstrocytoma. Preliminary data indicated that the CAR-T cells were
well tolerated, and no dose-limiting toxicities were observed in anyof the
study arms nor where there any occurrences of CRS or treatment-related deaths.
Of the 58 patients evaluable for disease response,50% achieved stable disease
(SD) or better; 22%, including 8 patients with grade 4 gliomas, achieved SD or
better for at least 90 days.Two patients achieved partial response, and one
patient achieved complete response on the study. In 2016 COH reported that a
patienthad achieved a complete response to treatment based on the imaging and
clinical features set forth by the Response Assessment in Neuro-OncologyCriteria
("RANO"). This result was published as a case report in the
New England Journal of Medicine
(Brown CE etal.
NEJM.
2016;375:2561-9). As described in the paper, this patient diagnosed with
recurrent multifocal glioblastoma receivedmultiple infusions of IL13Rα2-sp
ecific CAR-T cells over 220 days through two intracranial delivery routes -
infusionsinto the resected tumor cavity followed by infusions into the
ventricular system. Intracranial infusions of IL13Rα2-targeted
CAR-Tcells were not associated with any toxic effects of grade 3 or higher.
After CAR-T cell treatment, regression of all intracranial andspinal tumors
was observed, along with corresponding increases in levels of cytokines and
immune cells in the cerebrospinal fluid. Thisclinical response was sustained
for 7.5 months after the initiation of CAR T-cell therapy; however, the
patient's diseaseeventually recurred at four new locations that were distinct
and non-adjacent to the original tumors, and biopsy of one of these
lesionsshowed decreased expression of IL13Rα2.
Results from this COH study have laid the foundationfor potentially three new
MB-101 studies listed below. Due to limited resources, we do not expect to
initiate these studies untilsuch time, if any, that additional resources
become available to us.
1. MB-101 with or without nivolumab and ipilimumab in treating patients with recurrent or refractory
glioblastoma (currently enrolling patients; ClinicalTrials.gov Identifier: NCT04003649) sponsored by COH;
2. MB-101 in treating patients with recurrent or refractory glioblastoma with a substantial component of
leptomeningeal disease (currently enrolling patients; ClinicalTrials.gov Identifier: NCT04661384) sponsored by COH;
3. MB-101 in combination with the herpes simplex virus type 1 oncolytic virus (MB-108)
in treating patients with recurrent or refractory glioblastoma or high-grade
astrocytoma, as described above. This combination therapy, to be administered
in a phase 1 two-center trial under our IND, will be referred to as MB-109.
MB-108 (HSV 1 oncolytic virus C134)
MB-108 is a next-generation oncolytic herpessimplex virus ("oHSV") that is
conditionally replication competent; that is, it can replicate in tumor cells,
but not innormal cells, thus killing the tumor cells directly through this
process. Replication of C134 in the tumor itself not only kills theinfected
tumor cells but causes the tumor cell to act as a factory to produce new
virus. These virus particles are released as the tumorcell dies and can then
proceed to infect other tumor cells in the vicinity and continue the process
of tumor kill. In addition to thisdirect oncolytic activity, the virus
promotes an immune response against surviving tumor cells, which increases the
antitumor effectof the therapy. The virus expresses a gene from another virus
from the same overall virus family, human cytomegalovirus, which allowsit to
replicate better in the tumor cells than its first-generation predecessors.
However, the virus has also been genetically engineeredto minimize the
production of any toxic effects for the patient receiving the therapy.
To improve this virus over its first-generationpredecessors, modifications
have focused on improving viral replication and spread within the tumor bed
and on enhancing bystander damageto uninfected tumor cells. These effects
cumulatively should result in converting an immunologically cold tumor to an
immunologicallyhot tumor, which we anticipate will increase the efficacy of
our IL13Rα2 directed CAR T for the treatment of GBM and high-gradeastrocyt
oma.
The O'Neal Comprehensive Cancer Centerat the UAB is the single clinical trial
site for the Phase 1 trial of MB-108, and this site has initiated a Phase 1
trial that beganenrolling patients in 2019 (ClinicalTrials.gov Identifier:
NCT03657576). The primary objective of this study is to determine the
safetyand tolerability of a single dose of MB-108 administered via a
stereotactic intracerebral injection and to determine the maximally
tolerateddose ("MTD") of the oncolytic virus. Secondary objectives are to
obtain preliminary information about the potential benefitof MB-108 in the
treatment of patients with recurrent malignant gliomas, including relevant
data on markers of efficacy, including timeto tumor progression and patient
survival. As of April 2023, 9 patients had been enrolled in this study.
12
In Vivo CAR T Platform Technology
We are collaborating with the Mayo Clinic todevelop a novel technology that
may be able to transform the administration of CAR T therapies and potentially
be used as an off-the-shelftherapy. The technology, developed by Larry R.
Pease, Ph.D., principal investigator and former director of the Center for
Immunologyand Immune Therapies at Mayo Clinic, is a new platform to administer
CAR T therapy using a two-step approach. First, a peptide is administeredto
the patient to drive the proliferation of the patient's resident T cells. This
is followed by the administration of a viralCAR construct directly into the
lymph nodes of the patient. In turn, the viral construct infects the activated
T cells and effectivelyforms CAR T cells in vivo in the patient. Successful
implementation may lead to an off-the-shelf product with no need to isolate
andexpand patient T cells ex vivo in a cell processing facility.
Preclinical proof-of-concept has been established,and the ongoing development
of this technology will take place at Mayo Clinic. We are evaluating plans to
file an IND application fora multicenter Phase 1 clinical trial once a lead
construct has been identified, subject to allocation of resources.
13
Recent Developments
Sale of Manufacturing Facility - Overviewof Transaction
On May 18, 2023, we entered into an AssetPurchase Agreement (the "Original
Asset Purchase Agreement") with uBriGene (Boston) Biosciences, Inc., a
Delaware corporation("uBriGene"), pursuant to which we agreed to sell our
leasehold interest in our cell processing facility located in Worcester,Massachu
setts (the "Facility"), and associated assets relating to the manufacturing
and production of cell and gene therapiesat the Facility to uBriGene (the
"Transaction"). We and uBriGene subsequently entered into Amendment No. 1,
dated asof June 29, 2023, and Amendment No. 2, dated as of July 28, 2023, to
the Original Asset Purchase Agreement (the OriginalAsset Purchase Agreement,
as so amended, the "Asset Purchase Agreement").
On July 28, 2023 (the "Closing Date"),pursuant to the Asset Purchase
Agreement, we completed the sale of all of our assets that primarily relate to
the manufacturing and productionof cell and gene therapies at the Facility
(such operations, the "Transferred Operations" and such assets, the
"TransferredAssets") to uBriGene for upfront consideration of $6 million cash
(the "Base Amount"). The Transferred Assets thatwere transferred to uBriGene
on the Closing Date include, but are not limited to: (i) our leases of
equipment and other personalproperty and all other property, equipment,
machinery, tools, supplies, inventory, fixtures and all other personal
property primarilyrelated to the Transferred Operations, (ii) the data,
information, methods, quality management systems, and intellectual
propertyprimarily used for the purposes of the Transferred Operations, (iii)
the records and filings, including customer and vendor lists,production data,
standard operating procedures and business records relating to, used in or
arising under the Transferred Operationsand (iv) all transferrable business
license, permits and approvals necessary to operate the Transferred
Operations. As describedin greater detail below, certain Transferred Assets,
including our lease of the Facility and contracts that are primarily used in
theTransferred Operations (the "Transferred Contracts") did not transfer to
uBriGene on the Closing Date.
Under the terms of the Asset Purchase Agreement,in addition to the Base
Amount, uBriGene will be obligated to pay us a contingent amount (the
"Contingent Amount") if we,within two years from the Closing Date: (i)
complete an issuance of equity securities in an aggregate amount equal to or
greaterthan $10.0 million after the closing (the "Contingent Capital Raise")
and (ii) obtain the consent of the landlord ofthe Facility to transfer the
lease of the Facility to uBriGene. As of December 31, 2023, we had completed
issuances of equity securitiesfor proceeds totaling approximately $4.6 million
following the Closing Date. If we are unable to close the full amount of the
ContingentCapital Raise and/or do not receive the Landlord's consent to the
transfer the lease of the Facility to uBriGene within two yearsfrom the
Closing Date, uBriGene will not be obligated to pay the Contingent Amount to
us. The Contingent Amount to be paid to us uponthe satisfaction of the
conditions listed above will be an amount equal to $5.0 million less (i) any
severance payments or othermonetary obligations to our employees who support
the Transferred Operations and who have accepted offers of employment with
uBriGenethat arise between the Closing Date and the date the lease transfers
to uBriGene and (ii) any payments payable by us under TransferredContracts in
connection with the consummation of the Transaction, including any payments
necessary to obtain third party consents.
Voluntary Notice to U.S. Committee on ForeignInvestment in the United States
uBriGene is an indirect, wholly owned subsidiaryof UBrigene (Jiangsu)
Biosciences Co., Ltd., a Chinese contract development and manufacturing
organization. Under the Asset PurchaseAgreement, we and uBriGene agreed to use
our reasonable best efforts to obtain clearance for the Transaction from the
U.S. Committeeon Foreign Investment in the United States ("CFIUS"), although
obtaining such clearance was not a condition to closing theTransaction. In
accordance with the Asset Purchase Agreement, we and uBriGene previously
submitted a voluntary notice to CFIUS on August 10,2023.
14
Following an initial45-day review period and subsequent 45-day investigation
period, on November 13, 2023, CFIUS requested that we and uBriGene withdrawand
re-file our joint voluntary notice to allow more time for review and
discussion regarding the nature and extent of national securityrisk posed by
the Transaction. Upon CFIUS's request, we and uBriGene submitted a request to
withdraw and re-file our joint voluntarynotice to CFIUS, and on November 13,
2023, CFIUS granted this request, accepted the joint voluntary notice and
commenced a new 45-dayreview period on November 14, 2023. CFIUS's 45-day
review ended on December 28, 2023. Since CFIUS had not concludedits review by
December 28, 2023, the proceeding transitioned to a subsequent 45-day
investigation period, which ended on February 12,2024.
Following the 45-day review period and subsequent45-day investigation period
described above, on February 12, 2024, we and uBriGene requested permission to
withdraw and re-file our jointvoluntary notice to allow more time for review
and discussion regarding the nature and extent of national security risk posed
by theTransaction. Upon our joint request to withdraw and re-file their joint
voluntary notice to CFIUS, on February 12, 2024, CFIUS grantedthis request,
accepted the joint voluntary notice and commenced a new 45-day review period
on February 13, 2024. CFIUS's new 45-dayreview ended on March 28, 2024.
Because CFIUS had not yet concluded its action, the proceeding transitioned to
a second 45-day phaseas CFIUS further investigates the Transaction. On March
28, 2024, CFIUS advised us that its investigation will be completed no
laterthan May 13, 2024.
At the completion of its review and, if applicable,investigation, if CFIUS
determines there are no unresolved national security concerns, CFIUS will
apprise the parties of its determinationand conclude all action on the matter.
Alternatively, CFIUS may identify and impose mitigation measures. Depending on
the nature andseverity of perceived national security risks identified, CFIUS
may, among other mitigation measures, require suspension of the Transaction,requ
ire uBriGene to divest the Facility or other assets relating thereto, forfeit
contracts that CFIUS deems to be sensitive, or requireappointment of special
compliance personnel or a proxy board consisting of U.S. persons. If CFIUS
determines to require mitigating measureswith respect to the Transaction, then
uBriGene must comply with such measures although the Closing Date has already
occurred.
We and uBriGene have been and will continue tobe actively engaged with CFIUS,
and they remain fully committed to obtaining clearance from CFIUS and
completing the full transfer ofthe Facility to uBriGene. There can be no
assurance, however, that CFIUS will ultimately provide clearance with respect
to the Transaction,or what mitigating measures may be required in order to
obtain such clearance.
Notification of Non-Compliance with NasdaqContinued Listing Requirements
On March 13, 2024, we received a deficiencyletter (the "Letter") from the
Listing Qualifications Department (the "Staff") of Nasdaq notifying us that
wewere not in compliance with the minimum stockholders' equity requirement for
continued listing on the Nasdaq Capital Market underNasdaq Listing Rule
5550(b)(1). Nasdaq Listing Rule 5550(b)(1) requires companies listed on The
Nasdaq Capital Marketto maintain stockholders' equity of at least $2,500,000
(the "Stockholders' Equity Requirement"). Our AnnualReport on Form 10-K for
the fiscal year ended December 31, 2023, reported stockholders' equity of
$123,000. The Letterfurther noted that as of its date, we did not have a
market value of listed securities of $35 million, or net income from continued
operationsof $500,000 in the most recently completed fiscal year or in two of
the last three most recently completed fiscal years, the alternativequantitative
standards for continued listing on the Nasdaq Capital Market.
The Letter has no immediate effect on our continuedlisting on the Nasdaq
Capital Market, subject to our compliance with the other continued listing
requirements. In accordance with Nasdaqrules, we have been provided 45
calendar days, or until April 29, 2024, to submit a plan to regain compliance
(the "CompliancePlan"). If the Compliance Plan is acceptable to the Staff, it
may grant an extension of 180 calendar days from the date of theLetter. If the
Staff does not accept the Compliance Plan, the Staff will provide written
notification to us that the Compliance Planhas been rejected. At that time, we
may appeal the Staff's determination to a Nasdaq Hearings Panel.
We intend to submit a Compliance Plan on or beforeApril 29, 2024. Further, we
intend to take all reasonable measures available to regain compliance under
the Nasdaq Listing Rules andremain listed on the Nasdaq Capital Market.
However, there can be no assurance that Nasdaq will approve the Compliance
Plan or that wewill ultimately regain compliance with all applicable
requirements for continued listing.
April 2024 Reduction in Work Force
On April 10, 2024, our board of directors approveda reduction of our workforce
by approximately 81% of our employee base in order to reduce costs and
preserve capital due to the fundraisingenvironment and continued uncertainty
regarding the CFIUS review of the sale of the Facility and the Transaction
with uBriGene. The workforcereduction will take place primarily in April 2024
and is expected to be substantially completed in the second quarter of 2024.
As a resultof these actions, we expect to incur personnel-related
restructuring charges of approximately $0.2 million in connection with
one-timeemployee termination cash expenditures, which are expected to be
incurred in the second quarter of 2024. We may also incur other chargesor cash
expenditures not currently contemplated due to events that may occur as a
result of, or associated with, the workforce reductionor retention efforts.
The estimates of the costs expected to be incurred, and the timing thereof,
are subject to various assumptionsand actual costs may differ. We and our
board of directors continue to evaluate all strategic and other alternatives
related to the business.
Due to limited resources, and as a result ofthe reduction in work force
described above, we do not expect to initiate our pivotal Phase 2 single-arm
clinical trial of MB-106 forthe treatment of WM trial in 2024. Subject to
available funds, we intend rely on third party service providers to conduct
study and manufacturingservices to advance our priority potential product
candidates.
15
Warrant Amendment Agreement
As an inducement for certain investors to enterinto the securities purchase
agreement in connection with this offering, we also agreed to amend certain
existing warrants to purchaseup to an aggregate of 2,588,236 shares of common
stock that were previously issued in October 2023 and have an exercise price
of $1.58per share such that the amended warrants will have a reduced exercise
price of $0.237 per share effective upon the closing of the offering,will be
exercisable beginning on the effective date of Warrant Stockholder Approval of
the issuance of the shares upon exercise of theWarrants and will expire five
years from the date of Warrant Stockholder Approval.
Preliminary First Quarter Results
Based on information currently available, weestimate that as of March 31,
2024, cash and cash equivalents were approximately $1.3 million and cash used
in operating activities forthe first quarter of 2024 was $5.3 million.
Our estimate of our cash and cash equivalentsas of March 31, 2024 and cash
used in operating activities for the first quarter of 2024 are preliminary and
actual results may differfrom these estimates due to the completion of our
closing procedures with respect to the three months ended March 31, 2024,
final adjustmentsand other developments that may arise between now and the
time the financial results for the three months ended March 31, 2024 are
finalized.As such, these estimates should not be viewed as a substitute for
our unaudited financial statements for the three months ended March31, 2024
prepared in accordance with U.S. generally accepted accounting principles. Our
expected results could change materially andare not necessarily indicative of
the results to be achieved for three months ended March 31, 2024 or any future
period. As a resultof the foregoing considerations and the other limitations
described herein, investors are cautioned not to place undue reliance on
thispreliminary financial information. We do not undertake any obligation to
publicly update or revise these estimates, except as requiredby law.
Risks Associated with the Company and thisOffering
This offering is subject to numerous risks anduncertainties, including those
highlighted in the section entitled "Risk Factors" immediately following this
prospectus summary. These risks include, but are not limited to, the following:
. You will experience immediate dilution in the book value per share of the common stock purchased in the offering.
. If you purchase our securities in this offering you may experience future
dilution as a result of future equity offerings or other equity issuances.
. A substantial number of shares of common stock may be sold in the market following
this offering, which may depress the market price for our common stock.
. We have broad discretion to determine how to use the funds raised in this offering and may use
them in ways that may not enhance our operating results or the price of our common stock.
. There is no public market for the Warrants and pre-funded warrants being offered in this offering.
. The holders of Warrants and pre-funded warrants purchased in this offering
will have no rights as common stockholders until such holders exercise
their Warrants and pre-funded warrants and acquire shares of our common
stock, except as set forth in the Warrants and pre-funded warrants.
. The Warrants are speculative in nature.
. The Warrants are not exercisable until stockholder approval, provided however, if
the Pricing Conditions are met, the Warrants will be exercisable upon issuance.
. The market price for our common stock has been volatile and may continue to fluctuate or may decline significantly in the future.
. This is a best efforts offering, no minimum amount of securities is required to be sold, and we may not raise
the amount of capital we believe is required for our business plans, including our near-term business plans.
Corporate Information
We are a majority-controlled subsidiary of FortressBiotech, Inc. We were
incorporated under the laws of the State of Delaware on March 13, 2015. Our
principal executive officesare located at 377 Plantation Street, Worcester,
Massachusetts 01605, and our telephone number is 781-652-4500. We maintain a
websiteon the Internet at www.mustangbio.com and our e-mail address is
info@mustangbio.com. Information on our website, or any other website,is not
incorporated by reference in this prospectus. We have included our website
address in this prospectus solely as an inactive textualreference.
Implications of Being a Smaller ReportingCompany
We are a smaller reporting company as definedin the Securities Exchange Act of
1934, as amended (the "Exchange Act"). We may continue to be a smaller
reporting companyeven after we are no longer an emerging growth company. We
may take advantage of certain of the scaled disclosures available to
smallerreporting companies and will be able to take advantage of these scaled
disclosures for so long as (i) the market value of our votingand non-voting
common stock held by non-affiliates is less than $250 million measured on the
last business day of our second fiscalquarter or (ii) our annual revenue is
less than $100 million during the most recently completed fiscal year and the
marketvalue of our voting and non-voting common stock held by non-affiliates
is less than $700 million measured on the last business dayof our second
fiscal quarter. Specifically, as a smaller reporting company, we may choose to
present only the two most recent fiscal yearsof audited financial statements
in our annual reports on Form 10-K and have reduced disclosure obligations
regarding executive compensation,and if we are a smaller reporting company
with less than $100 million in annual revenue, we would not be required to
obtain an attestationreport on internal control over financial reporting
issued by our independent registered public accounting firm.
16
THE OFFERING
Securities we are offering 1,160,000 shares of common stock and accompanying Series
A-1 Warrantsto purchase up to 1,160,000 shares of common
stock, Series A-2 Warrants to purchase up to 1,160,000 shares
of common stock,and Series A-3 Warrants to purchase up to
1,160,000 shares of common stock, or pre-funded warrants to
purchase 15,717,638shares of common stock and accompanying
Series A-1 Warrants to purchase up to 15,717,638 shares of
common stock, Series A-2Warrants to purchase up to 15,717,638
shares of common stock, and Series A-3 Warrants to purchase
up to 15,717,638 sharesof common stock. The shares of
common stock, or pre-funded warrants, and in each case the
accompanying Series A-1 Warrants, Series A-2Warrants, and
Series A-3 Warrants will be separately transferable
immediately upon issuance, but the shares of common stock, or
pre-fundedwarrants, and in each case the accompanying Warrants
will be issued to purchasers in the ratio of one to one.
Description of Series A-1 Warrants, Series Each Series A-1 Warrant, Series A-2 Warrant,
A-2 Warrants, and Series A-3 Warrants and Series A-3 Warrant is exercisable
for one share of common stock, will have
an exercise price of $0.237 per share,
and will be exercisable beginning on the
effective date of the Warrant Stockholder
Approval. The Series A-1 Warrants will
expire on the five-year anniversary of the
Warrant Stockholder Approval.
The Series A-2 Warrants will
expire on the twenty four month
anniversary of the Warrant
Stockholder Approval. The Series
A-3 Warrants will expire on the
nine month anniversary of the
Warrant Stockholder Approval.
Description of pre-funded warrants If the issuance of shares of our common stock to a purchaser in this offering
would result in such purchaser, together with its affiliates and certain related
parties, beneficially owning more than 4.99% (or, at the election of the purchaser,
9.99%) of our outstanding common stock following the consummation of this
offering or if such purchaser otherwise elects to purchase pre-funded warrants,
then such purchaser may purchase, if they so choose, in lieu of the shares of our
common stock that would result in such excess ownership, a pre-funded warrant
to purchase shares of our common stock for a purchase price per share of common
stock subject to such pre-funded warrant equal to the per share public offering
price for the common stock to be sold in this offering less $0.0001. Each
pre-funded warrant will have an exercise price of $0.0001 per share, will be
exercisable upon issuance and may be exercised at any time until all of the pre-funded
warrants are exercised in full. Purchasers of pre-funded warrants will also
receive accompanying warrants as if such purchasers were buying shares of our
common stock in this offering. This prospectus also relates to the offering of
the shares of common stock issuable upon exercise of these pre-funded warrants.
Common stock outstanding before offering: 10,509,505 shares
Common stock outstanding after this offering 27,387,143 shares o
f common stock,assuming full exercise
of the pre-funded warrants issued in
this offering and no exercise of the
Warrants being issued in thisoffering.
Use of proceeds: We currently intend to use the net proceeds
from this offering for working capital
and general corporate purposes. See "Use of
Proceeds" on page 25 of this prospectus.
17
Risk factors An investment in our securities involves a high degree of risk and could result in a loss
of your entire investment. Prior to making an investment decision, you should carefully
consider all of the information in this prospectus and, in particular, you should evaluate
the risk factors set forth under the caption "Risk Factors" beginning on page 19.
Nasdaq Capital Market symbol Our common stock is listed on the Nasdaq
Capital Market under the symbol "MBIO".
There is no established public trading market for the Warrants and pre-funded warrants, and we do
not expect a market to develop. We do not intend to apply for listing of the Warrants or pre-funded
warrants on any securities exchange or other nationally recognized trading system. Without an
active trading market, the liquidity of the Warrants and pre-funded warrants will be limited.
18
The number of shares of our common stock to beoutstanding after this offering
is based on 10,509,505 shares of our stock outstanding as of April 25, 2024
and excludes:
. 76,112 shares of our common stock issuable upon the exercise of outstanding stock options
as of April 25, 2024, with a weighted-average exercise price of $85.95 per share;
. 23,501 shares of common stock issuable upon the vesting and settlement
of outstanding restricted stock units as of April 25, 2024;
. 2,813,632 shares of our common stock issuable upon the exercise of outstanding warrants
as of April 25, 2024, with a weighted-average exercise price of $2.14 per share;
. 56,359 shares of our common stock issuable upon conversion of the Class A Common Stock, at the holders' election;
. 16,666 shares of our common stock issuable upon conversion of the Class A Preferred Stock, at the holders' election;
. 393,167 shares of our common stock reserved for future issuance
under the Mustang Bio, Inc. 2016 Equity Incentive Plan, as amended
(the "2016 Plan"), plus any future increases in the number of
shares of common stock reserved for issuance thereunder; and
. 338,315 shares of our common stock reserved for future issuance under the
Mustang Bio, Inc. 2019 Employee Stock Purchase Plan, as amended (the "ESPP"),
plus any future increases, including annual automatic evergreen increases,
in the number of shares of common stock reserved for issuance thereunder.
Unless otherwise indicated, all informationcontained in this prospectus assumes:
. no exercise of the outstanding options, warrants, or pre-funded warrants, and
no settlement of the restricted stock units described in the bullets above; and
. no exercise of the Warrants or the Placement Agent Warrants issued in this offering.
19
RISKFACTORS
Investing in our common stock involves a highdegree of risk. You should
carefully consider the risks described below, and those discussed under the
section entitled "Risk Factors"contained in our
Annual Reporton Form 10-K for the year ended December 31, 2023
, together with other information in this prospectus, the informationand
documents incorporated by reference herein, and in any free writing prospectus
that we have authorized for use in connection withthis offering. The
occurrence of any of the events or developments described below could
materially and adversely affect our business,financial condition, results of
operations and prospects. In such an event, the market price of our common
stock could decline and youmay lose all or part of your investment.
Risks Related to the Company and this Offering
There is substantialdoubt regarding our ability to continue as a going
concern. We will need to raise additional funding, (which may not be available
onacceptable terms to us, or at all) and/or delay, limit or terminate our
product development efforts or other operations.
We are currently advancingour programs in hematologic cancers, solid tumors
and rare genetic diseases through clinical development. Developing and
commercializingCAR T products is expensive, and we do not expect to generate
meaningful product revenues in the foreseeable futureuntil we obtain marketing
approval for products in the United States and following any potential
commercial launch.
As of December 31, 2023,our cash and cash equivalents were $6.2 million. Based
on our current business plan, there is substantial doubt regarding our
abilityto continue as a going concern for a period of one year after the date
that our financial statements for the year ended December 31, 2023were issued.
Our fundraising efforts to raise additional funding may divert our management
from their day-to-day activities, which mayadversely affect our ability to
develop and commercialize our potential products following marketing approval
if and when obtained. Inaddition, we cannot guarantee that financing will be
available in sufficient amounts or on terms acceptable to us, if at all.
Moreover,the terms of any financing may adversely affect the holdings or the
rights of our stockholders and the issuance of additional securities,whether
equity or debt, by us, or the possibility of such issuance, may cause the
market price of our shares to decline. The sale ofadditional equity or
convertible securities would dilute all of our stockholders. Potential
indebtedness, if incurred, would result inincreased fixed payment obligations,
and we may be required to agree to certain restrictive covenants, such as
limitations on our abilityto incur additional debt, limitations on our ability
to acquire, sell or license intellectual property rights and other operating
restrictionsthat could adversely impact our ability to conduct our business.
We could also be required to seek funds through arrangements with
collaborativepartners or otherwise at an earlier stage than otherwise would be
desirable and we may be required to relinquish rights to some of ourtechnologies
or product candidates or otherwise agree to terms unfavorable to us, any of
which may have a material adverse effect onour business, operating results and
prospects.
In addition, in order to address our currentfunding constraints, we may be
required to further revise our business plan and strategy, which may result in
us (i) further curtailing,delaying or discontinuing one or more of our
research or development programs or the commercialization of any product
candidates, (ii) sellingcertain of our assets and/or (iii) may result in our
being unable to expand our operations or otherwise capitalize on our
businessopportunities. Such actions may become necessary whether or not we are
able to raise additional capital. As a result, our business, financialcondition,
and results of operations could be materially affected.
We believe that the proceeds of this offering,combined with our very limited
funds currently on hand, will only be sufficient for us to operate for a
relatively limited amount oftime. Since we will be unable to generate
sufficient funds, if any, to fund our operations for at least several years,
we will needto seek additional equity or debt financing to provide the capital
required to implement our business plan. If we are unable to raisecapital, we
could be required to seek bankruptcy protection or other alternatives that
would likely result in our securityholders losingsome or all of their
investment in us.
We believe that the proceeds of this offering,combined with our very limited
funds currently on hand, will only be sufficient for us to operate for a
relatively limited amount oftime. Since we will be unable to generate
sufficient, if any, revenue or cash flow to fund our operations for at least
several years,we will need to seek additional equity or debt financing to
provide the capital required to implement our business plan.
Additionally, this offering is being made on abest efforts basis and we may
sell fewer than all of the securities offered hereby and may receive
significantly less in net proceedsfrom this offering, which will provide us
only limited working capital. We believe that the net proceeds from this
offering, togetherwith our existing cash and cash equivalents, will meet our
capital needs for the next six to nine months under our current business
plan.Without giving effect to the receipt of any proceeds from this offering,
we currently estimate that our existing cash and cash equivalentsare
sufficient to fund business operations into the second quarter of 2024.
We do not currently have any arrangements orcredit facilities in place as a
source of funds. There can be no assurance that we will be able to raise
sufficient additional capitalon acceptable terms, or at all. If such financing
is not available on satisfactory terms, or is not available at all, we may be
requiredto further delay, scale back or eliminate the development of business
opportunities and our operations and financial condition may bematerially
adversely affected. Furthermore if we are unable to raise capital, we could be
required to seek bankruptcy protection or otheralternatives that would likely
result in our securityholders losing some or all of their investment in us.
We contract with third parties for themanufacture of our product candidates
for preclinical and clinical testing and may also do so for commercialization,
if and when ourproduct candidates are approved. This reliance on third parties
increases the risk that we will not have sufficient quantities ofour product
candidates or any future product candidate or such quantities at an acceptable
cost, which could delay, prevent or impairour development or commercialization
efforts.
Due to limited resources,and in light of our reduction in force in April 2024,
we may increase our reliance on third-party manufacturers or third-party
collaboratorsfor the manufacture of commercial supply of one or more product
candidates for which our collaborators or we obtain marketing approval.We may
be unable to establish any agreements with third-party manufacturers or to do
so on acceptable terms. Even if we are able to establishagreements with
third-party manufacturers, reliance on third-party manufacturers entails
additional risks, including, but not necessarilylimited to:
. reliance on the third party for regulatory compliance and quality assurance, while still being required
by law to establish adequate oversight and control over products furnished by that third party;
. the possible breach of the manufacturing agreement by the third party;
. manufacturing delays if our third-party manufacturers are unable to obtain
raw materials due to supply chain disruptions, give greater priority to the
supply of other products over our product candidates or otherwise do not
satisfactorily perform according to the terms of the agreement between us;
. the possible misappropriation of our proprietary information, including our trade secrets and know-how; and
. the possible termination or nonrenewal of the agreement by the third party at a time that is costly or inconvenient for us.
We rely on our third-partymanufacturers to produce or purchase from
third-party suppliers the materials and equipment necessary to produce our
product candidatesfor our preclinical and clinical trials. Forces beyond our
control could disrupt the global supply chain and impact our or our
third-partymanufacturers' ability to obtain raw materials or other products
necessary to manufacture our product candidates. There are a limitednumber of
suppliers for raw materials and equipment that we use (or that are used on our
behalf) to manufacture our product candidates,and there may be a need to
assess alternate suppliers to prevent a possible disruption of the manufacture
of the materials and equipmentnecessary to produce our product candidates for
our preclinical and clinical trials, and if approved, ultimately for
commercial sale.We do not have any control over the process or timing of the
acquisition of these raw materials or equipment by our third-party
manufacturers.Any significant delay in the supply of a product candidate, or
the raw material components thereof, for an ongoing preclinical or
clinicaltrial due to the need to replace a third-party manufacturer could
considerably delay completion of our preclinical or clinical trials,product
testing and potential regulatory approval of our product candidates. If our
manufacturers or we are unable to purchase theseraw materials or equipment
after regulatory approval has been obtained for our product candidates, the
commercial launch of our productcandidates would be delayed or there would be
a shortage in supply, which would impair our ability to generate revenues from
the saleof our product candidates.
The facilities usedby contract manufacturers to potentially manufacture our
product candidates must be approved by the FDA pursuant to inspections
thatwill be conducted after we submit an New Drug Application (NDA) or BLA to
the FDA. We are required by law to establish adequate oversightand control
over raw materials, components and finished products furnished by our contract
manufacturers, but we do not control the day-to-daymanufacturing operations
of, and are dependent on, the contract manufacturers for compliance with
current Good Manufacturing Practices("cGMP") regulations for manufacture of
our product candidates. Third-party manufacturers may not be able to comply
withthe cGMP regulations or similar regulatory requirements outside the United
States. Our failure, or the failure of our third-party manufacturers,to comply
with applicable regulations could result in sanctions being imposed on us,
including clinical holds, fines, injunctions, restrictionson imports and
exports, civil penalties, delays, suspension or withdrawal of approvals,
license revocation, seizures or recalls of productcandidates or products,
operating restrictions and criminal prosecutions, any of which could
significantly and adversely affect suppliesof our products.
One or more of the productcandidates that we may develop may compete with
other product candidates and products for access to manufacturing facilities.
There area limited number of manufacturers that operate under cGMP regulations
and that might be capable of manufacturing for us. Any performancefailure on
the part of our existing or future manufacturers could delay clinical
development or marketing approval. We do not currentlyhave arrangements in
place for redundant supply. If our current contract manufacturers cannot
perform as agreed, we may be required toreplace such manufacturers. We may
incur added costs and delays in identifying and qualifying any replacement
manufacturers.
Future dependence uponothers for the manufacture of our product candidates or
products may adversely affect our future profit margins and our ability to
commercializeany products that may receive marketing approval on a timely and
competitive basis. We also expect to rely on third parties to distributedrug
supplies for our clinical trials. Any performance failure on the part of our
distributors could delay clinical development or marketingapproval of our
product candidates or commercialization of our products, if approved,
producing additional losses and depriving us ofpotential product revenue.
20
You will experience immediate dilution in the book value pershare of the
common stock purchased in the offering.
Since the public offering price of our commonstock in this offering is
substantially higher than the net tangible book value per share of our
outstanding common stock outstandingprior to this offering, you will suffer
dilution in the book value of the common stock you purchase in this offering.
The shares of commonstock sold in this offering, if any, will be sold from
time to time at various prices. After giving effect to the sale of our common
stockin the aggregate offering amount of $4.0 million at an offering price of
$0.237 per share, and after deducting estimated offering commissionsand
expenses payable by us, you would suffer immediate dilution of $0.11 per share
in the net tangible book value of the common stock.See the section titled
"Dilution" for a more detailed discussion of the dilution you will incur if
you purchase shares inthis offering.
If you purchase our securities in thisoffering you may experience future
dilution as a result of future equity offerings or other equity issuances.
We will likely offer and issue additional sharesof our common stock or other
equity or convertible debt securities in order to raise additional capital.
Future equity offerings or otherequity issuances may be at a price per share
that is equal to or greater than the price per share paid by investors in this
offering.Future investors in such offerings may have rights superior to
existing stockholders, and the price per share at which we sell additionalshares
of common stock or other equity or convertible debt securities in future
transactions may be at a higher or lower price per sharethan the price per
share in this offering.
A substantial number of shares of commonstock may be sold in the market
following this offering, which may depress the market price for our common
stock.
Thesecurities offered hereby will be freely tradable without restriction or
further registration under the Securities Act of 1933, as amended(the
"Securities Act"). Sales of a substantial number of shares of our common stock
in the public market following this offering,
or the perception that such sales could occur,
could cause themarket price of our common stock to decline.
We have broad discretion to determine howto use the funds raised in this
offering and may use them in ways that may not enhance our operating results
or the price of our commonstock.
Our management will have broad discretion overthe use of net proceeds from
this offering, and we could spend the net proceeds from this offering in ways
our stockholders may not agreewith or that do not yield a favorable return, if
at all. We currently expect to use the net proceeds from this offering for
working capitaland general corporate purposes, including costs and expenses
associated with being a public company. However, our use of these net
proceedsmay differ substantially from our current plans. If we do not invest
or apply the net proceeds of this offering in ways that improve ouroperating
results, we may fail to achieve expected financial results, which could cause
our stock price to decline.
21
FINRA sales practice requirements may limita stockholder's ability to buy and
sell our securities.
Effective June 30, 2020, the SEC implementedRegulation Best Interest requiring
that "A broker, dealer, or a natural person who is an associated person of a
broker or dealer,when making a recommendation of any securities transaction or
investment strategy involving securities (including account recommendations)to
a retail customer, shall act in the best interest of the retail customer at
the time the recommendation is made, without placing thefinancial or other
interest of the broker, dealer, or natural person who is an associated person
of a broker or dealer making the recommendationahead of the interest of the
retail customer." This is a significantly higher standard for broker-dealers
to recommend securitiesto retail customers than before under FINRA
"suitability rules. FINRA suitability rules do still apply to institutional
investorsand require that in recommending an investment to a customer, a
broker-dealer must have reasonable grounds for believing that the investmentis
suitable for that customer. Prior to recommending securities to their
customers, broker-dealers must make reasonable efforts to obtaininformation
about the customer's financial status, tax status, investment objectives and
other information, and for retail customersdetermine the investment is in the
customer's "best interest" and meet other SEC requirements. Both SEC
RegulationBest Interest and FINRA's suitability requirements may make it more
difficult for broker-dealers to recommend that their customersbuy speculative,
low-priced securities. They may affect investing in our common stock, which
may have the effect of reducing the levelof trading activity in our
securities. As a result, fewer broker-dealers may be willing to make a market
in our common stock, reducinga stockholder's ability to resell our common
stock.
Purchasers whopurchase our securities in this offering pursuant to a
securities purchase agreement may have rights not available to purchasers
thatpurchase without the benefit of a securities purchase agreement.
In addition to rightsand remedies available to all purchasers in this offering
under federal securities and state law, the purchasers that enter into a
securitiespurchase agreement will also be able to bring claims of breach of
contract against us. The ability to pursue a claim for breach of contractprovide
s those investors with the means to enforce the covenants uniquely available
to them under the securities purchase agreement including,but not limited to:
(i) timely delivery of shares; (ii) agreement to not enter into variable rate
financings for one year fromclosing, subject to certain exceptions; (iii)
agreement to not enter into any financings for 90 days from closing, subject
to certainexceptions; and (iv) indemnification for breach of contract.
There is no public market for the Warrantsand pre-funded warrants being
offered in this offering.
There is no establishedpublic trading market for the Warrants and pre-funded
warrants being offered in this offering, and we do not expect a market to
develop.In addition, we do not intend to apply to list the Warrants or
pre-funded warrants on any securities exchange or nationally recognizedtrading
system, including the Nasdaq Capital Market. Without an active market, the
liquidity of the Warrants or pre-funded warrants willbe limited.
The holders ofWarrants and pre-funded warrants purchased in this offering will
have no rights as common stockholders until such holders exercise
theirWarrants or pre-funded warrants and acquire shares of our common stock,
except as set forth in the Warrants and pre-funded warrants.
Until a holder of Warrantsand pre-funded warrants acquires the shares of
common stock upon exercise of the Warrants and pre-funded warrants, as the
case may be,such holder will have no rights with respect to the shares of
common stock underlying such Warrants and pre-funded warrants, except asset
forth in the Warrants and pre-funded warrants. Upon exercise of the Warrants
and pre-funded warrants, holders will be entitled toexercise the rights of
common stockholders only as to matters for which the record date occurs after
the exercise date.
The Warrants arespeculative in nature.
The Warrants do notconfer any rights of common stock ownership on their
holders, such as voting rights, but rather merely represent the right to
acquireshares of common stock at a fixed price for a limited period of time.
There can be no assurance that the market price of the common stockwill ever
equal or exceed the exercise price of the Warrants, and consequently, it may
not ever be profitable for holders of the Warrantsto exercise the Warrants.
The Warrants arenot exercisable until stockholder approval, provided however,
if the Pricing Conditions are met, the Warrants will be exercisable
uponissuance.
The Warrants will havean exercise price of $0.237 per share and will be
exercisable beginning on the effective date of the Warrant Stockholder
Approval. TheSeries A-1 Warrants will expire on the five-year anniversary of
the Warrant Stockholder Approval. The Series A-2 Warrants will expireon the
twenty four month anniversary of the Warrant Stockholder Approval. The Series
A-3 Warrants will expire on the nine month anniversaryof the Warrant
Stockholder Approval.
22
While we intend to promptlyseek Warrant Stockholder Approval, there is no
guarantee that the Warrant Stockholder Approval will ever be obtained. If we
are unableto obtain the Warrant Stockholder Approval, the Warrants may have no
value.
The market pricefor our common stock has been volatile and may continue to
fluctuate or may decline significantly in the future.
An active, liquid andorderly market for our common stock may not be sustained,
which could depress the trading price of our common stock or cause it to
continueto be highly volatile or subject to wide fluctuations. Some of the
factors that could negatively affect our share price or result influctuations
in the price or trading volume of our common stock include, among other things:
. the commencement, enrollment, or results of our current and future preclinical studies and clinical
trials, and the results of trials of our competitors or those of other companies in our market sector;
. regulatory approval of our product candidates, or limitations to specific label indications
or patient populations for its use, or changes or delays in the regulatory review process;
. manufacturing, supply or distribution delays or shortages;
. our ability to identify and successfully acquire or in-license new product candidates on acceptable terms;
. FDA, state or international regulatory actions, including actions on regulatory applications any of our product candidates;
. legislative or regulatory changes;
. judicial pronouncements interpreting laws and regulations;
. changes in government programs;
. announcements of new products, services or technologies, commercial
relationships, acquisitions or other events by us or our competitors;
. market conditions in the pharmaceutical and biotechnology sectors;
. fluctuations in stock market prices and trading volumes of similar companies;
. changes in accounting principles;
. litigation or public concern about the safety of our product candidates or similar product candidates;
. sales of large blocks of our common stock, including sales by our executive officers, directors and significant shareholders; and
. our ability to obtain additional financing to advance our development operations;
These broad market andindustry factors may decrease the market price of our
common stock, regardless of our actual operating performance. The stock
marketin general has from time to time experienced extreme price and volume
fluctuations. In addition, in the past, following periods of volatilityin the
overall market and decreases in the market price of a company's securities,
securities class action litigation has oftenbeen instituted against these
companies. This litigation, if instituted against us, could result in
substantial costs and a diversionof our management's attention and resources.
This is a bestefforts offering, no minimum amount of securities is required to
be sold, and we may not raise the amount of capital we believe is requiredfor
our business plans, including our near-term business plans.
The Placement Agenthas agreed to use its reasonable best efforts to solicit
offers to purchase the securities in this offering. The Placement Agent hasno
obligation to buy any of the securities from us or to arrange for the purchase
or sale of any specific number or dollar amount ofthe securities. There is no
required minimum number of securities that must be sold as a condition to
completion of this offering. Becausethere is no minimum offering amount
required as a condition to the closing of this offering, the actual offering
amount, Placement Agentfees and proceeds to us are not presently determinable
and may be substantially less than the maximum amounts set forth herein. We
maysell fewer than all of the securities offered hereby, which may
significantly reduce the amount of proceeds received by us, and investorsin
this offering will not receive a refund in the event that we do not sell an
amount of securities sufficient to support our continuedoperations, including
our near-term continued operations. Thus, we may not raise the amount of
capital we believe is required for ouroperations in the short-term and may
need to raise additional funds to complete such short-term operations. Such
additional fundraisesmay not be available on terms acceptable to us, or at all.
23
SPECIALNOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporatedby reference into this
prospectus, contains forward-looking statements about us and our industry that
involve substantial risks and uncertainties.All statements other than
statements of historical or current facts included in this prospectus are
forward-looking statements. In somecases, you can identify forward-looking
statements by terminology such as "aim," "anticipate," "assume," "believe,"
"contemplate," "continue," "could," "design," "due," "estimate," "expect,"
"goal," "intend," "may," "objective," "plan," "positioned," "potential,"
"predict," "seek," "should," "target," "will," "would" and other similar
expressions that are predictions of or indicate future events and future
trends,or the negative of these terms or other comparable terminology. In
addition, statements that "we believe" or similar statementsreflect our
beliefs and opinions on the relevant subject. All forward-looking statements
are subject to risks and uncertainties thatmay cause actual results to differ
materially from those expressed in, or implied by these, forward-looking
statements and therefore,you should not unduly rely on such statements,
including, but not limited to:
. expectations for increases or decreases in expenses;
. expectations for the clinical and pre-clinical development, manufacturing, regulatory approval, and
commercialization of our pharmaceutical product candidates or any other products we may acquire or in-license;
. use of clinical research centers and other contractors;
. expectations for incurring capital expenditures to expand our research and development and manufacturing capabilities;
. expectations for generating revenue or becoming profitable on a sustained basis;
. expectations or ability to enter into marketing and other partnership agreements;
. expectations or ability to enter into product acquisition and in-licensing transactions;
. expectations or ability to build our own commercial infrastructure
to manufacture, market and sell our product candidates, if approved;
. expectations for the acceptance of our product candidates, if approved, by doctors, patients or payors;
. ability to compete against other companies and research institutions;
. our ability to attract, hire and retain qualified personnel, including the impact of our recently announced reduction in force;
. ability to secure adequate protection for our intellectual property;
. ability to attract and retain key personnel;
. ability to obtain reimbursement for our products, if approved;
. estimates of the sufficiency of our existing cash and cash equivalents and investments to finance our
operating requirements, including expectations regarding the value and liquidity of our investments;
. stock price and the volatility of the equity markets;
. expected losses; and
. expectations for future capital requirements.
24
We have based these forward-looking statementslargely on our current
expectations, estimates, forecasts, and projections about future events and
financial trends that we believe mayaffect our financial condition, results of
operations, business strategy, and financial needs. In light of the
significant uncertaintiesin these forward-looking statements, you should not
rely upon forward-looking statements as predictions of future events. Although
webelieve that we have a reasonable basis for each forward-looking statement
contained in this prospectus, we cannot guarantee that thefuture results,
levels of activity, performance, or events and circumstances reflected in the
forward-looking statements will be achievedor occur at all. You should refer
to the section entitled "Risk Factors" in this prospectus and the risk factors
set forthin the documents incorporated by reference in this prospectus for a
discussion of important factors that may cause our actual resultsto differ
materially from those expressed or implied by our forward-looking statements.
Furthermore, if our forward-looking statementsprove to be inaccurate, the
inaccuracy may be material. Except as required by law, we undertake no
obligation to publicly update anyforward-looking statements, whether as a
result of new information, future events or otherwise.
You should read this prospectus and the documentsincorporated by reference in
this prospectus completely and with the understanding that our actual future
results may be materially differentfrom what we expect. We qualify all of the
forward-looking statements in this prospectus by these cautionary statements.
25
USE OF PROCEEDS
We estimate that thenet proceeds from this offering will be approximately $3.3
million, after deducting the Placement Agent's fees and estimated
offeringexpenses payable by us, and assuming no exercise of the Warrants being
issued in this offering. However, because this is a best effortsoffering and
there is no minimum offering amount required as a condition to the closing of
this offering, the actual offering amount,the Placement Agent's fees and net
proceeds to us are not presently determinable and may be substantially less
than the maximumamounts set forth on the cover page of this prospectus.
These estimates excludethe proceeds, if any, from the exercise of Warrants
issued in this offering. If all of the Warrants issued in this offering were
to beexercised in cash at an exercise price of $0.237 per share of common
stock, we would receive additional proceeds of approximately$12 million. We
cannot predict when or if these Warrants will be exercised. It is possible
that these Warrants may expire and maynever be exercised. Additionally, the
Warrants contain a cashless exercise provision that permit exercise of
Warrants on a cashless basisat any time where there is no effective
registration statement under the Securities Act covering the issuance of the
underlying shares.
We intend to use thenet proceeds of this offering for working capital, general
corporate purposes and the payment of outstanding payables incurred in
theordinary course. General corporate purposes may include, and are not
limited to, research and development costs, manufacturing costs,the
acquisition or licensing of other businesses, products or product candidates,
working capital and capital expenditures. These expecteduses represent our
intentions based upon our current plans and business conditions, which could
change in the future as our plans andbusiness conditions evolve. The amounts
and timing of our actual expenditures may vary significantly depending on
numerous factors, includingthe progress of our development, the status of and
results from clinical trials, as well as any new collaborations that we may
enterinto with third parties for our product candidates, the commercialization
of our products or our product candidates, if approved, andany unforeseen cash
needs. As a result, our management will have broad discretion in the
application of the net proceeds from this offering,and the investors will be
relying on the judgment of our management regarding the application of the net
proceeds from this offering.
Pending applicationof the net proceeds as described above, we intend to invest
the net proceeds of this offering in short-term, investment-grade,
interest-bearingsecurities.
26
DIVIDEND POLICY
We have never declared or paid cash dividendson our capital stock, and we do
not currently intend to pay any cash dividends on our capital stock in the
foreseeable future. We currentlyintend to retain all available funds and any
future earnings, if any, to fund the development and expansion of our business.
27
CAPITALIZATION
The following table sets forth our capitalization asof December 31, 2023 as
follows:
• on an actual basis; and
• on an as adjusted basis to reflect the issuance and sale by us of/1,160,000/sharesof common stock,
pre-funded warrants to purchase up to 15,717,638 shares of common stock, Series A-1 Warrants to purchase up
to 16,877,638 sharesof common stock, Series A-2 Warrants to purchase up to 16,877,638 shares of common
stock, and Series A-3 Warrants to purchaseup to 16,877,638 shares of common stock in this offering at a
public offering price of $0.237/per share and accompanyingWarrants and after deducting Placement Agent
fees and estimated offering expenses payable by us, and assuming exercise in full of anypre-funded
warrants offered in this offering, no exercise of the Warrants being offered in this offering, that no
value is attributedto such Warrants and that such Warrants are classified as and accounted for as equity.
You should read this table together with "Management'sDiscussion and Analysis
of Financial Condition and Results of Operations," as well as our financial
statements and related notesand the other financial information appearing in
our
AnnualReport on Form 10-K for the year ended December 31, 2023
, which are each incorporated by reference in this prospectus.The information
presented in the capitalization table has been adjusted to reflect the effect
of this current offering.
As of December 31, 2023
(in thousands, Actual As adjusted
except share
and per share
amounts)
Cash and cash $ 6,234 $ 9,523
equivalents
Stockholders'
equity
Common stock, par value $0.0001 per share; 1 3
200,000,000 shares authorized at December 31, 2023;
8,374,869 shares issued and outstanding, actual;
25,252,507 shares issued and outstanding, as adjusted
Common stock 591 591
issuable, 419,089
shares at
December 31, 2023
Additional 380,502 383,789
paid-in
capital
Accumulated (380,971 ) (380,971 )
deficit
Total $ 123 $ 3,412
stockholders'
equity
Total $ 123 $ 3,412
capitalization
28
The foregoing discussion and tables above arebased on 8,374,869 shares of
common stock outstanding as of December 31, 2023, and excludes:
• 76,112 shares of our common stock issuable upon the exercise of outstanding stock options
as of December 31, 2023, with a weighted-average exercise price of $85.95 per share;
• 95,197 shares of common stock issuable upon the vesting and settlement
of outstanding restricted stock units as of December 31, 2023;
• 2,813,632 shares of our common stock issuable upon the exercise of outstanding warrants
as of December 31, 2023, with a weighted-average exercise price of $2.14 per share;
• 1,668,236 shares of our common stock issuable upon the exercise of outstanding pre-funded
warrants as of December 31, 2023, with a weighted-average exercise price of $0.001 per share;
• 56,359 shares of our common stock issuable upon conversion
of the Class A Common Stock, at the holders' election;
• 16,666 shares of our common stock issuable upon conversion
of the Class A Preferred Stock, at the holders' election;
• 285,764 shares of our common stock reserved for future issuance under the 2016 Plan, plus any
future increases in the number of shares of common stock reserved for issuance thereunder; and
• 380,089 shares of our common stock reserved for future issuance under the ESPP, plus any future increases, including
annual automatic evergreen increases, in the number of shares of common stock reserved for issuance thereunder.
29
DILUTION
If you invest in ourcommon stock, your interest will be immediately diluted to
the extent of the difference between the public offering price per share
andthe as adjusted net tangible book value per share of our common stock after
this offering. Net tangible book value per share representsour total tangible
assets less total liabilities, divided by the number of shares of our common
stock outstanding.
As of December 31,2023, our net tangible book value was $0.1 million, or $0.01
per share of common stock, based on 8,374,869 shares of common stock
outstandingas of December 31, 2023.
After giving effect tothe sale of 1,160,000/shares of common stock, pre-funded
warrants to purchase up to 15,717,638 shares of common stock, Series
A-1Warrants to purchase up to 16,877,638 shares of common stock, Series A-2
Warrants to purchase up to 16,877,638 sharesof common stock, and Series A-3
Warrants to purchase up to 16,877,638 shares of common stock at a public
offering price pershare of common stock/and accompanying Warrants of $0.237
assuming exercise in full of any pre-funded warrants offered in thisoffering,
and after deducting the estimated placement agent fees and estimated offering
expenses payable by us, and excluding the proceeds,if any, from the exercise
of the Warrants issued in this offering, our as adjusted net tangible book
value as of December 31, 2023would have been approximately $3.4 million, or
approximately $0.13 per share. This represents an immediate increase in net
tangible bookvalue to existing shareholders of $0.12 per share and an
immediate dilution in net tangible book value of $0.11 per share of our
commonstock to the investors purchasing securities in this offering.
The following tableillustrates this per share dilution to the new investors
purchasing shares of common stock in this offering:
Combined public offering price per share of common stock and accompanying Warrants $ 0.237
Historical net tangible book value (deficit) per share as of December 31, 2023 $ 0.01
Increase in net tangible book value per share attributable to investors purchasing in this offering $ 0.12
As adjusted net tangible book value per share as of December 31, 2023 after this offering $ 0.13
Dilution per share to investors purchasing in this offering $ 0.11
The foregoing discussion and tables above arebased on 8,374,869 shares of
common stock outstanding as of December 31, 2023, and excludes:
• 76,112 shares of our common stock issuable upon the exercise of outstanding stock options
as of December 31, 2023, with a weighted-average exercise price of $85.95 per share;
• 95,197 shares of common stock issuable upon the vesting and settlement
of outstanding restricted stock units as of December 31, 2023;
• 2,813,632 shares of our common stock issuable upon the exercise of outstanding warrants
as of December 31, 2023, with a weighted-average exercise price of $2.14 per share;
30
• 1,668,236 shares of our common stock issuable upon the exercise of outstanding pre-funded
warrants as of December 31, 2023, with a weighted-average exercise price of $0.001 per share;
• 56,359 shares of our common stock issuable upon conversion
of the Class A Common Stock, at the holders' election;
• 16,666 shares of our common stock issuable upon conversion
of the Class A Preferred Stock, at the holders' election;
• 285,764 shares of our common stock reserved for future issuance under the 2016 Plan, plus any
future increases in the number of shares of common stock reserved for issuance thereunder; and
• 380,089 shares of our common stock reserved for future issuance under the ESPP, plus any future increases, including
annual automatic evergreen increases, in the number of shares of common stock reserved for issuance thereunder.
To the extent that any outstanding options orwarrants are exercised, new
options or other equity awards are issued under our equity incentive plans, or
we issue additional sharesin the future, there will be further dilution to new
investors participating in this offering.
31
MATERIAL U.S. FEDERAL INCOMETAX CONSEQUENCES
The following discussion is a summary of certainmaterial U.S. federal income
tax consequences of the purchase, ownership and disposition of the shares of
common stock and pre-fundedwarrants and accompanying Warrants or components
thereof, which we refer to collectively as the "Securities," issued pursuantto
this offering, but does not purport to be a complete analysis of all potential
tax effects. The effects of other U.S. federal taxlaws, such as estate and
gift tax laws, and any applicable state, local or foreign tax laws are not
discussed. This discussion is basedon the Internal Revenue Code of 1986, as
amended (the "Code"), Treasury Regulations promulgated thereunder, judicial
decisions,and published rulings and administrative pronouncements of the U.S.
Internal Revenue Service (the "IRS") in effect as ofthe date of this offering.
These authorities may change or be subject to differing interpretations. Any
such change or differing interpretationmay be applied retroactively in a
manner that could adversely affect a holder of the Securities. We have not
sought and will not seekany rulings from the IRS regarding the matters
discussed below. There can be no assurance the IRS or a court will not take a
contraryposition regarding the tax consequences of the purchase, ownership and
disposition of the Securities.
This discussion is limited to holders that holdthe Securities as a "capital
asset" within the meaning of Section 1221 of the Code (generally, property
held for investment).This discussion does not address all U.S. federal income
tax consequences relevant to a holder's particular circumstances, includingthe
impact of the alternative minimum tax or the unearned income Medicare
contribution tax. In addition, it does not address consequencesrelevant to
holders subject to particular rules, including, without limitation:
• U.S. expatriates and certain former citizens
or long-term residents of the United States;
• persons holding the Securities as part of a hedge, straddle or other risk reduction
strategy or as part of a conversion transaction or other integrated investment;
• banks, insurance companies, and
other financial institutions;
• brokers, dealers or traders in securities;
• "controlled foreign corporations," "passive foreign investment companies,"
and corporations that accumulate earnings to avoid U.S. federal income tax;
• partnerships or other entities or arrangements treated as partnerships
for U.S. federal income tax purposes (and investors therein);
• tax-exempt organizations or
governmental organizations;
• persons deemed to sell the Securities under
the constructive sale provisions of the Code;
• persons for whom our stock and pre-funded warrants constitutes "qualified
small business stock" within the meaning of Section 1202 of the Code;
• persons who hold or receive the Securities pursuant to the exercise
of any employee stock option or otherwise as compensation;
• persons subject to special tax accounting rules as a result of any item of gross income with respect
to the stock being taken into account in an "applicable financial statement" (as defined in the Code);
• "qualified foreign pension funds" as defined in Section 897(l)(2) of the Code and
entities all of the interests of which are held by qualified foreign pension funds; and
• tax-qualified retirement plans.
If a partnership (or other entity or arrangementtreated as a partnership for
U.S. federal income tax purposes) holds the Securities, the tax treatment of a
partner in the partnershipwill depend on the status of the partner, the
activities of the partnership and certain determinations made at the partner
level. Accordingly,partnerships holding the Securities and the partners in
such partnerships should consult their tax advisors regarding the U.S.
federalincome tax consequences to them.
THIS DISCUSSION IS FOR INFORMATION PURPOSESONLY AND IS NOT INTENDED AS LEGAL
OR TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE
APPLICATION OF THE U.S.FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS
AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OFTHE SECURITIES ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR
UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTIONOR UNDER ANY
APPLICABLE INCOME TAX TREATY.
32
Allocation of Purchase Price
Each share of common stock or pre-funded warrant,as applicable, and
accompanying Warrants will be treated for U.S. federal income tax purposes as
an investment unit consisting of oneshare of our common stock or pre-funded
warrant, as applicable, and accompanying Warrants to purchase our common
stock. In determiningtheir tax basis for the common stock or pre-funded
warrant and the Warrants constituting an investment unit, holders of
Securities shouldallocate their purchase price for the investment unit between
the common stock or pre-funded warrant, as applicable, and the Warrantson the
basis of their relative fair market values at the time of issuance. We do not
intend to advise holders of the Securities withrespect to this determination,
and holders of the Securities are advised to consult their tax and financial
advisors with respect tothe relative fair market values of the common stock or
pre-funded warrant, as applicable, and the Warrants for U.S. federal income
taxpurposes.
Treatment of Pre-Funded Warrants
Although not free from doubt, a pre-funded warrantshould be treated as a share
of our common stock for U.S. federal income tax purposes, and a holder of
pre-funded warrants should generallybe taxed in the same manner as a holder of
common stock, as described below. Accordingly, no gain or loss should be
recognized (otherthan with respect to cash paid in lieu of a fractional share)
upon the exercise of a pre-funded warrant (except in the case of a
cashlessexercise, the treatment of which for U.S. federal income tax purposes
is not clear) and, upon exercise, the holding period of a pre-fundedwarrant
should carry over to the share of common stock received. Similarly, the tax
basis of the pre-funded warrant should carry overto the share of common stock
received upon exercise, increased by the exercise price of $0.0001. The
discussion below assumes the characterizationdescribed above is respected for
U.S. federal income tax purposes. Holders should consult their tax advisors
regarding the risks associatedwith the acquisition of pre-funded warrants
pursuant to this offering (including alternative characterizations).
Tax Considerations Applicable to U.S. Holders
Definition of a U.S. Holder
For purposes of this discussion, a "U.S.holder" is any beneficial owner of the
Securities that, for U.S. federal income tax purposes, is or is treated as any
of the following:
• an individual who is a citizen or
resident of the United States;
• a corporation created or
organized under the laws of the
United States, any state thereof,
or the District of Columbia;
• an estate, the income of
which is subject to U.S.
federal income tax
regardless of its source; or
• a trust that (1) is subject to the primary supervision of a U.S. court and the control
of one or more United States persons (within the meaning of Section 7701(a)(30)
of the Code), or (2) has made a valid election under applicable Treasury Regulations
to be treated as a United States person for U.S. federal income tax purposes.
Distributions
As described in the section entitled "DividendPolicy," we do not currently
intend to pay any cash dividends on our capital stock in the foreseeable
future. However, if we domake distributions of cash or property on our common
stock or pre-funded warrants (other than certain distributions of common
stock),such distributions will constitute dividends to the extent paid out of
our current or accumulated earnings and profits, as determinedfor U.S. federal
income tax purposes. Dividends received by a corporate U.S. holder may be
eligible for a dividends received deduction,subject to applicable limitations.
Dividends received by certain non-corporate U.S. holders, including
individuals, are generally taxedat the lower applicable capital gains rate
provided certain holding period and other requirements are satisfied.
Distributions in excessof our current and accumulated earnings and profits
will constitute a return of capital and first be applied against and reduce a
U.S.holder's adjusted tax basis in its common stock, but not below zero. Any
excess will be treated as capital gain and will be treatedas described below
in the section relating to the sale or disposition of our common stock or
pre-funded warrants, as applicable.
33
Sale or Other Taxable Disposition of Common Stock or Pre-FundedWarrants
Upon the sale, exchange or other taxable dispositionof the common stock or
pre-funded warrants, a U.S. holder generally will recognize capital gain or
loss equal to the difference between(i) the amount of cash and the fair market
value of any property received upon the sale, exchange or other taxable
disposition and (ii)such U.S. holder's adjusted tax basis in the common stock
or pre-funded warrant. Such capital gain or loss will be long- term
capitalgain or loss if the U.S. holder's holding period in such common stock
or pre-funded warrant is more than one year at the time ofthe sale, exchange
or other taxable disposition. Long-term capital gains recognized by certain
non-corporate U.S. holders, includingindividuals, generally will be subject to
reduced rates of U.S. federal income tax. The deductibility of capital losses
is subject tocertain limitations.
Sale or Other Disposition, Exercise orExpiration of the Warrants
Upon the sale or other disposition of Warrants(other than by exercise), a U.S.
holder will generally recognize capital gain or loss equal to the difference
between the amount realizedon the sale or other disposition and the U.S.
holder's tax basis in the Warrants. This capital gain or loss will be
long-term capitalgain or loss if the U.S. holder's holding period in such
Warrant is more than one year at the time of the sale or other disposition.The
deductibility of capital losses is subject to certain limitations.
In general, a U.S. holder will not be requiredto recognize income, gain or
loss upon exercise of the Warrants for their exercise prices (except to the
extent the U.S. holder receivesa cash payment for a such fractional share that
would otherwise have been issuable upon exercise of the Warrants, which will
be treatedas a sale as described above under "Sale or Other Taxable
Disposition of Common Stock or Pre-Funded Warrants"). A U.S. holder'stax basis
in a share of common stock received upon exercise of the Warrants will be
equal to the sum of (i) the U.S. holder'stax basis in the Warrants exchanged
therefor and (ii) the exercise price of such Warrants. A U.S. holder's holding
periodin the shares of common stock received upon exercise will commence on
the day after such U.S. holder exercises the Warrants. U.S. holdersare urged
to consult their tax advisors as to the consequences of an exercise of the
Warrants on a cashless basis, including with respectto their holding period
and tax basis in the common stock received.
If a Warrant expires without being exercised,a U.S. holder will recognize a
capital loss in an amount equal to such holder's tax basis in such Warrant.
Such loss will be long-termcapital loss if, at the time of the expiration, the
U.S. holder's holding period in such Warrant is more than one year. The
deductibilityof capital losses is subject to certain limitations.
Constructive Dividends on Common Warrantsor Pre-Funded Warrants
As described in the section entitled "DividendPolicy," we do not currently
intend to pay any cash dividends on our capital stock in the foreseeable
future. However, if at anytime during the period in which a U.S. holder holds
Warrants or pre-funded warrants, we were to pay a taxable dividend to our
stockholdersand, in accordance with an anti-dilution provisions of the
Warrants or pre-funded warrants, the exercise price thereof were decreased,that
decrease would be deemed to be the payment of a taxable dividend to a U.S.
holder of the Warrants or pre-funded warrants, as applicable,to the extent of
our earnings and profits, notwithstanding the fact that such holder will not
receive a cash payment. If the exerciseprice is adjusted in certain other
circumstances or other adjustments are made (or in certain circumstances,
there is a failure to makeadjustments), such adjustments may also result in
the deemed payment of a taxable dividend to a U.S. holder. In addition, a
holder ofa Warrant or pre-funded warrant may, in some circumstances, be deemed
to have received a distribution subject to U.S. federal incometax as a result
of an adjustment or the non-occurrence of an adjustment to the exercise price
or number of shares of common stock issuableupon exercise of the Warrants or
pre-funded warrant. U.S. holders should consult their tax advisors regarding
the proper treatment ofany adjustments to the Warrants and pre-funded warrants.
34
We are currently required to report the amountof any deemed distributions on
our website or to the IRS and to holders not exempt from reporting. The IRS
has proposed regulations addressingthe amount and timing of deemed
distributions, as well as obligations of withholding agents and filing and
notice obligations of issuersin respect of such deemed distributions. If
adopted as proposed, the regulations would generally provide that (i) the
amount ofa deemed distribution is the excess of the fair market value of the
right to acquire stock immediately after the exercise price adjustmentover the
fair market value of the right to acquire stock (after the exercise price
adjustment) without the adjustment, (ii) thedeemed distribution occurs at the
earlier of the date the adjustment occurs under the terms of the instrument
and the date of the distributionof cash or property that results in the deemed
distribution and (iii) we are required to report the amount of any deemed
distributionson our website or to the IRS and to all holders (including
holders that would otherwise be exempt from reporting). The final
regulationswill be effective for deemed distributions occurring on or after
the date of adoption, but holders and withholding agents may rely onthem prior
to that date under certain circumstances.
Information Reporting and Backup Withholding
A U.S. holder may be subject to information reportingand backup withholding
when such holder receives payments on the common stock or pre-funded warrants
or Warrants (including constructivedividends) or receives proceeds from the
sale or other taxable disposition of common stock, pre-funded warrants, or
Warrants. CertainU.S. holders are exempt from backup withholding, including
corporations and certain tax-exempt organizations. A U.S. holder will be
subjectto backup withholding if such holder is not otherwise exempt and such
holder:
• fails to furnish the holder's taxpayer identification number, which
for an individual is ordinarily his or her social security number;
• furnishes an incorrect taxpayer
identification number;
• is notified by the IRS that the holder previously failed
to properly report payments of interest or dividends;
• or fails to certify under penalties of perjury that the holder has furnished a correct taxpayer identification
number and that the IRS has not notified the holder that the holder is subject to backup withholding.
Backup withholding is not an additional tax.Any amounts withheld under the
backup withholding rules may be allowed as a refund or a credit against a U.S.
holder's U.S.federal income tax liability, provided the required information
is timely furnished to the IRS. U.S. holders should consult their taxadvisors
regarding their qualification for an exemption from backup withholding and the
procedures for obtaining such an exemption.
Tax Considerations Applicable to Non-U.S.Holders
For purposes of this discussion, a "
non-U.S.holder
" is a beneficial owner of the Securities that is neither a U.S. holder nor an
entity treated as a partnership for U.S.federal income tax purposes.
Distributions
As described in the section entitled "DividendPolicy," we do not currently
intend to pay any cash dividends on our capital stock in the foreseeable
future. However, if we domake distributions of cash or property (other than
certain distributions of common stock) on our common stock or pre-funded
warrants,such will constitute dividends for U.S. federal income tax purposes
to the extent paid from our current or accumulated earnings and profits,as
determined under U.S. federal income tax principles. Amounts not treated as
dividends for U.S. federal income tax purposes will constitutea return of
capital and first be applied against and reduce a non-U.S. holder's adjusted
tax basis in its common stock or pre-fundedwarrants, but not below zero. Any
excess will be treated as capital gain and will be treated as described below
in the section relatingto the sale or disposition of our common stock,
pre-funded warrants or Warrants. Because we may not know the extent to which a
distributionis a dividend for U.S. federal income tax purposes at the time it
is made, for purposes of the withholding rules discussed belowwe or the
applicable withholding agent may treat the entire distribution as a dividend.
35
Subject to the discussion below on backup withholdingand foreign accounts,
dividends paid to a non-U.S. holder of our common stock or pre-funded warrants
that are not effectively connectedwith the non-U.S. holder's conduct of a
trade or business within the United States will be subject to U.S. federal
withholdingtax at a rate of 30% of the gross amount of the dividends (or such
lower rate specified by an applicable income tax treaty).
Non-U.S. holders will be entitled to a reductionin or an exemption from
withholding on dividends as a result of either (a) an applicable income tax
treaty or (b) the non-U.S.holder holding our common stock or pre-funded
warrants in connection with the conduct of a trade or business within the
United Statesand dividends being effectively connected with that trade or
business. To claim such a reduction in or exemption from withholding,
thenon-U.S. holder must provide the applicable withholding agent with a
properly executed (a) IRS Form W-8BEN or W-8BEN-E (orother applicable
documentation) claiming an exemption from or reduction of the withholding tax
under the benefit of an income tax treatybetween the United States and the
country in which the non-U.S. holder resides or is established, or (b) IRS
Form W-8ECI statingthat the dividends are not subject to withholding tax
because they are effectively connected with the conduct by the non-U.S.
holderof a trade or business within the United States, as may be applicable.
These certifications must be provided to the applicable withholdingagent prior
to the payment of dividends and must be updated periodically. Non-U.S. holders
that do not timely provide the applicablewithholding agent with the required
certification, but that qualify for a reduced rate under an applicable income
tax treaty, may obtaina refund of any excess amounts withheld by timely filing
an appropriate claim for refund with the IRS.
If dividends paid to a non-U.S. holder are effectivelyconnected with the
non-U.S. holder's conduct of a trade or business within the United States
(and, if required by an applicableincome tax treaty, the non-U.S. holder
maintains a permanent establishment in the United States to which such
dividends are attributable),then, although exempt from U.S. federal
withholding tax (provided the non-U.S. holder provides appropriate
certification, as describedabove), the non-U.S. holder will be subject to U.S.
federal income tax on such dividends on a net income basis at the regular
graduatedU.S. federal income tax rates. In addition, a non-U.S. holder that is
a corporation may be subject to a branch profits tax at a rateof 30% (or such
lower rate specified by an applicable income tax treaty) on its effectively
connected earnings and profits for the taxableyear that are attributable to
such dividends, as adjusted for certain items. Non-U.S. holders should consult
their tax advisors regardingtheir entitlement to benefits under any applicable
income tax treaty.
Exercise of Common Warrants or Pre-FundedWarrants
A non-U.S. holder generally will not be subjectto U.S. federal income tax on
the exercise of Warrants or pre-funded warrants into shares of common stock.
Non-U.S. holders are urgedto consult their tax advisors as to the consequences
of an exercise of a Warrant on a cashless basis, including with respect to
theirholding period and tax basis in the common stock received.
Sale or Other Disposition of Common Stock,Pre-Funded Warrants or Common Warrants
Subject to the discussions below on backup withholdingand foreign accounts, a
non-U.S. holder will not be subject to U.S. federal income tax on any gain
realized upon the sale or other dispositionof our common stock, pre-funded
warrants or Warrants unless:
• the gain is effectively connected with the non-U.S. holder's conduct of
a trade or business within the United States (and, if required by an
applicable income tax treaty, the non-U.S. holder maintains a permanent
establishment in the United States to which such gain is attributable);
• the non-U.S. holder is a nonresident alien
individual present in the United States for 183 days
or more during the taxable year of the disposition
and certain other requirements are met; or
• our common stock, pre-funded warrants, or Warrants
constitute U.S. real property interests ("USRPIs") by reason
of our status as a U.S. real property holding corporation
("USRPHC") for U.S. federal income tax purposes.
Gain described in the first bullet point abovewill generally be subject to
U.S. federal income tax on a net income basis at the regular graduated U.S.
federal income tax rates. Anon-U.S. holder that is a foreign corporation also
may be subject to a branch profits tax at a rate of 30% (or such lower rate
specifiedby an applicable income tax treaty) on such effectively connected
gain, as adjusted for certain items.
36
A non-U.S. holder described in the second bulletpoint above will be subject to
U.S. federal income tax at a rate of 30% (or such lower rate specified by an
applicable income tax treaty)on any gain derived from the disposition, which
may be offset by certain U.S.-source capital losses of the non-U.S. holder
(even thoughthe individual is not considered a resident of the United States)
provided the non-U.S. holder has timely filed U.S. federal income taxreturns
with respect to such losses.
With respect to the third bullet point above,we believe we are not currently
and do not anticipate becoming a USRPHC. Because the determination of whether
we are a USRPHC dependson the fair market value of our USRPIs relative to the
fair market value of our other business assets and our non-U.S. real
propertyinterests, however, there can be no assurance we are not a USRPHC or
will not become one in the future.
Non-U.S. holders should consult their tax advisorsregarding potentially
applicable income tax treaties that may provide for different rules.
Constructive Dividends on Common Warrantsor Pre-Funded Warrants
As described in the section entitled "DividendPolicy," we do not currently
intend to pay any cash dividends on our capital stock in the foreseeable
future. However, if at anytime during the period in which a non-U.S. holder
holds Warrants or pre-funded warrants we were to pay a taxable dividend to our
stockholdersand, in accordance with the anti-dilution provisions of the
Warrants or pre-funded warrants, the exercise price of the Warrants
weredecreased, that decrease would be deemed to be the payment of a taxable
dividend to a non-U.S. holder to the extent of our earnings andprofits,
notwithstanding the fact that such holder will not receive a cash payment. If
the exercise price is adjusted in certain othercircumstances (or in certain
circumstances, there is a failure to make adjustments), such adjustments may
also result in the deemed paymentof a taxable dividend to a non-U.S. holder.
Any resulting withholding tax attributable to deemed dividends may be
collected from otheramounts payable or distributable to the non-U.S. holder.
Non-U.S. holders should consult their tax advisors regarding the proper
treatmentof any adjustments to the Warrants and pre-funded warrants.
Information Reporting and Backup Withholding
Subject to the discussion below on foreign accounts,a non-U.S. holder will not
be subject to backup withholding with respect to distributions on our common
stock or pre-funded warrantswe make to the non-U.S. holder (including
constructive dividends with respect to Warrants and pre-funded warrants),
provided the applicablewithholding agent does not have actual knowledge or
reason to know such holder is a United States person and the holder certifies
itsnon-U.S. status, such as by providing a valid IRS Form W-8BEN, W-8BEN-E or
W-8ECI, or other applicable certification. However, informationreturns
generally will be filed with the IRS in connection with any distributions
(including deemed distributions) made on our commonstock, pre-funded warrants
and Warrants to the non-U.S. holder, regardless of whether any tax was
actually withheld. Copies of theseinformation returns may also be made
available under the provisions of a specific treaty or agreement to the tax
authorities of the countryin which the non-U.S. holder resides or is
established.
Information reporting and backup withholdingmay apply to the proceeds of a
sale or other taxable disposition of our common stock, pre-funded warrants or
Warrants within the UnitedStates, and information reporting may (although
backup withholding generally will not) apply to the proceeds of a sale or
other taxabledisposition of our common stock, pre-funded warrants or Warrants
outside the United States conducted through certain U.S.-related financialinterm
ediaries, in each case, unless the beneficial owner certifies under penalty of
perjury that it is a non-U.S. holder on IRS Form W-8BENor W-8BEN-E, or other
applicable form (and the payor does not have actual knowledge or reason to
know that the beneficial owner is aU.S. person) or such owner otherwise
establishes an exemption. Proceeds of a disposition of our common stock,
pre-funded warrants orWarrants conducted through a non-U.S. office of a
non-U.S. broker generally will not be subject to backup withholding or
informationreporting.
Backup withholding is not an additional tax.Any amounts withheld under the
backup withholding rules may be allowed as a refund or a credit against a
non-U.S. holder'sU.S. federal income tax liability, provided the required
information is timely furnished to the IRS.
37
Additional Withholding Tax on PaymentsMade to Foreign Accounts
Withholding taxes may be imposed under Sections1471 to 1474 of the Code (such
Sections commonly referred to as the Foreign Account Tax Compliance Act
("FATCA")) on certaintypes of payments made to non-U.S. financial institutions
and certain other non-U.S. entities. Specifically, a 30% withholding tax maybe
imposed on dividends (including deemed dividends) paid on our common stock,
pre-funded warrants or Warrants, or (subject to the proposedTreasury
Regulations discussed below) gross proceeds from the sale or other disposition
of our common stock, pre-funded warrants or Warrantspaid to a "foreign
financial institution" or a "non-financial foreign entity" (each as defined in
the Code),unless (1) the foreign financial institution undertakes certain
diligence and reporting obligations, (2) the non-financialforeign entity
either certifies it does not have any "substantial United States owners" (as
defined in the Code) or furnishesidentifying information regarding each
substantial United States owner, or (3) the foreign financial institution or
non-financialforeign entity otherwise qualifies for an exemption from these
rules. If the payee is a foreign financial institution and is subjectto the
diligence and reporting requirements in (1) above, it must enter into an
agreement with the U.S. Department of the Treasuryrequiring, among other
things, that it undertake to identify accounts held by certain "specified
United States persons" or "United States-owned foreign entities" (each as
defined in the Code), annually report certain information about such
accounts,and withhold 30% on certain payments to non-compliant foreign
financial institutions and certain other account holders. Foreign
financialinstitutions located in jurisdictions that have an intergovernmental
agreement with the United States governing FATCA may be subjectto different
rules.
Under the applicable Treasury Regulations andadministrative guidance,
withholding under FATCA generally applies to payments of dividends (including
deemed dividends). Because wemay not know the extent to which a distribution
is a dividend for U.S. federal income tax purposes at the time it is made, for
purposesof these withholding rules we or the applicable withholding agent may
treat the entire distribution as a dividend. While withholdingunder FATCA
would have applied also to payments of gross proceeds from the sale or other
disposition of our common stock, pre-fundedwarrants or Warrants on or after
January 1, 2019, proposed Treasury Regulations eliminate FATCA withholding on
payments of grossproceeds entirely. Taxpayers generally may rely on these
proposed Treasury Regulations until final Treasury Regulations are issued.
Prospectiveinvestors should consult their tax advisors regarding the potential
application of these withholding provisions.
EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITSTAX ADVISORS REGARDING THE TAX
CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR SECURITIES, AS WELL
AS TAX CONSEQUENCES ARISINGUNDER ANY STATE, LOCAL, NON-U.S. OR U.S. FEDERAL
NON-INCOME TAX LAWS.
38
DESCRIPTION OF CAPITALSTOCK
The following description of our capital stockis not complete and may not
contain all the information you should consider before investing in our
capital stock. This description issummarized from, and qualified in its
entirety by reference to, our amended and restated certificate of
incorporation and our amendedand restated bylaws, which have been publicly
filed with the SEC. See "Where You Can Find More Information." For a
completedescription, you should refer to our amended and restated certificate
of incorporation and amended and restated bylaws, copies of whichare
incorporated by reference as exhibits to the registration statement of which
this prospectus forms a part.
Capital Stock
We are authorized to issue 200,000,000 sharesof common stock, par value of
$0.0001 per share, of which 1,000,000 shares are designated as Class A common
stock, and 2,000,000of preferred stock, $0.0001 par value per share, of which
250,000 are designated as Class A Preferred Stock.
Common Stock
The holders of common stock are entitled to onevote per share held.
As of April 25, 2024, there were 10,509,505 shares of our common stockoutstandin
g held by 71 stockholders of record.
The undesignated preferred stock may be issuedfrom time to time in one or more
series. Our board of directors is authorized to determine or alter the
dividend rights, dividend rate,conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions, if any), the
redemption price orprices, the liquidation preferences and other designations,
powers, preferences and relative, participating, optional or other
specialrights, if any, and the qualifications, limitations and restrictions
granted to or imposed upon any wholly unissued series of preferredstock, and
to fix the number of shares of any series of preferred stock (but not below
the number of shares of any such series then outstanding).
Class A Common Stock
The holders of Class A common stock areentitled to the number of votes equal
to the number of whole shares of common stock into which the shares of Class A
Common Sharesheld by such holder are convertible. For a period of ten years
from issuance, the holders of the Class A common stock have the rightto
appoint one member of the Board of Directors of Mustang. To date, the holders
of Class A common stock have not yet appointedsuch director.
Class A Preferred Stock
The Class A Preferred Stock is identicalto undesignated common stock other
than as to voting rights, conversion rights, and the PIK dividend right.
The holders of the outstanding shares of Class APreferred Stock receive on
each January 1 (each a "PIK Dividend Payment Date") after the original
issuance date of theClass A Preferred Stock until the date all outstanding
Class A Preferred Stock is converted into common stock or redeemed (andthe
purchase price is paid in full), pro rata per share dividends paid in
additional fully paid and non-assessable shares of common stocksuch that the
aggregate number of shares of common stock issued pursuant to such PIK
dividend is equal to 2.5% of the Corporation'sfully-diluted outstanding
capitalization on the date that is one business day prior to any PIK Dividend
Payment Date ("PIK RecordDate"). In the event the Class A Preferred Stock
converts into common stock, the holders shall receive all PIK dividends
accruedthrough the date of such conversion. No dividend or other distribution
shall be paid, or declared and set apart for payment (other thandividends
payable solely in capital stock on the capital stock) on the shares of common
stock until all PIK dividends on the Class APreferred Stock shall have been
paid or declared and set apart for payment. All dividends are non-cumulative.
39
On any matter presented to the stockholders fortheir action or consideration
at any meeting of stockholders (or by written consent of stockholders in lieu
of meeting), each holderof outstanding shares of Class A Preferred Stock shall
be entitled to cast for each share of Class A Preferred Stock held bysuch
holder as of the record date for determining stockholders entitled to vote on
such matter, the number of votes that is equal toone and one-tenth (1.1) times
a fraction, the numerator of which is the sum of (A) the number of shares of
outstanding common stockand (B) the whole shares of common stock in to which
the shares of outstanding Class A common stock and the Class A PreferredStock
are convertible, and the denominator of which is number of shares of
outstanding Class A Preferred Stock. Thus, the Class APreferred Stock will at
all times constitute a voting majority.
Each share of Class A Preferred Stock isconvertible, at the option of the
holder, into one fully paid and nonassessable share of common stock, subject
to certain adjustments.If we, at any time effects a subdivision or combination
of our outstanding common stock (by any stock split, stock dividend,
recapitalization,reverse stock split or otherwise), the applicable conversion
ratio in effect immediately before that subdivision is proportionately
decreasedor increased, as applicable, so that the number of shares of common
stock issuable on conversion of each share of Class A PreferredStock shall be
increased or decreased, as applicable, in proportion to such increase or
decrease in the aggregate number of shares ofcommon stock outstanding.
Additionally, if any reorganization, recapitalization, reclassification,
consolidation or merger involvingthe Company occurs in which the common stock
(but not the Class A Preferred Stock) is converted into or exchanged for
securities,cash or other property, then each share of Class A Preferred Stock
becomes convertible into the kind and amount of securities, cashor other
property which a holder of the number of shares of our common stock issuable
upon conversion of one share of the Class APreferred Stock immediately prior
to such reorganization, recapitalization, reclassification, consolidation or
merger would have beenentitled to receive pursuant to such transaction.
Additional Features
Other features of our capital stock include:
• Dividend Rights
. The holders of outstanding shares of our common stock, including
Class A common stock, are entitled to receive dividends out of
funds legally available at the times and in the amounts that our
Board of Directors may determine. All dividends are non-cumulative.
• Voting Rights
. The holders of our common stock are entitled to one vote for each
share of common stock held on all matters submitted to a vote of the
stockholders, including the election of directors. Our certificate of
incorporation and bylaws do not provide for cumulative voting rights.
• No Preemptive or Similar Rights
. The holders of our common stock have no
preemptive, conversion, or subscription rights,
and there are no redemption or sinking fund
provisions applicable to our common stock.
• Right to Receive Liquidation Distributions
. Upon our liquidation, dissolution, or winding-up, the assets legally
available for distribution to our stockholders would be distributable ratably
among the holders of our common stock, including Class A common stock,
outstanding at that time after payment of other claims of creditors, if any.
• Fully Paid and Non-Assessable
. All of the outstanding shares of our common
stock, including Class A common stock,
and the Class A Preferred Stock are duly
issued, fully paid and non-assessable.
40
DESCRIPTION OF SECURITIESWE ARE OFFERING
We are offering 1,160,000shares of common stock, Series A-1 Warrants to
purchase up to 16,877,638 shares of common stock, Series A-2 Warrants to
purchaseup to 16,877,638 shares of common stock, and Series A-3 Warrants to
purchase up to 16,877,638 shares of common stock.We are also offering
pre-funded warrants to purchase up to 15,717,638 shares of common stock to
those purchasers, whose purchaseof shares of common stock in this offering
would result in the purchaser, together with its affiliates and certain
related parties, beneficiallyowning more than 4.99% (or, at the election of
the purchaser, 9.99%) of our outstanding common stock following the
consummation of thisoffering in lieu of the shares of our common stock that
would result in ownership in excess of 4.99% (or, at the election of the
purchaser,9.99%). Each pre-funded warrant will be exercisable for one share of
common stock. Each pre-funded warrant is beingissued together with the same
Warrants described above being issued with each share of common stock. The
shares of common stock or pre-funded warrants,as the case may be, and the
accompanying Warrants, can only be purchased together in this offering, but
the shares of common stock and pre-funded warrantsand accompanying Warrants
are immediately separable and will be issued separately in this offering. We
are also registering the sharesof common stock issuable from time to time upon
exercise of the pre-funded warrants and Warrants offered hereby.
Common Stock
The description of ourcommon stock under the section "Description of Our
Capital Stock" in this prospectus is incorporated herein by reference.
Warrants
The following summary of certain terms and provisionsof the Warrants included
with the shares of common stock and the pre-funded warrants that are being
issued hereby is notcomplete and is subject to, and qualified in its entirety
by, the provisions of the Warrants, the forms of which will be filed as
anexhibit to the registration statement of which this prospectus forms a part.
Prospective investors should carefully review the termsand provisions of the
form of Warrant for a complete description of the terms and conditions of the
warrants. The Series A-1 Warrant,Series A-2 Warrant, and Series A-3 Warrant
are identical except with regard to their duration.
Duration and ExercisePrice
EachWarrant offered hereby will have an exercise price of $0.237 per share and
will be exercisable beginning on the effective date of theWarrant Stockholder
Approval. The exercise price and number of shares of common stock issuable
upon exercise of the warrants is subjectto appropriate adjustment in the event
of stock dividends, stock splits, reorganizations or similar events affecting
our common stockand the exercise price. The Warrants will be issued separately
from the common stock and pre-funded warrants and may be transferred
separatelyimmediately thereafter. The Warrants will be issued in certificated
form only. The Series A-1 Warrants will expire on the five-year anniversaryof
the
Warrant Stockholder Approval
. The Series A-2 Warrants will expire on the twenty fourmonth anniversary of the
Warrant Stockholder Approval
. The Series A-3 Warrants will expireon the nine month anniversary of the
Warrant Stockholder Approval
.
We intend to promptly,and in no event later than 90 days after the
consummation of this offering, seek stockholder approval for the issuance of
shares of commonstock issuable upon exercise of the Warrants but we cannot
assure you that such stockholder approval will be obtained. We have agreedwith
the investors in this offering that, if we do not obtain stockholder approval
for the issuance of the shares of common stock uponexercise of the Warrants at
the first stockholder meeting for such purpose after this offering, we will
call a stockholder meeting every90 days thereafter until the earlier of the
date we obtain such approval or the Warrants are no longer outstanding.
41
Exercisability
The Warrants will beexercisable, at the option of each holder, in whole or in
part, by delivering to us a duly executed exercise notice accompanied by
paymentin full for the number of shares of our common stock purchased upon
such exercise (except in the case of a cashless exercise as discussedbelow). A
holder (together with its affiliates) may not exercise any portion of the
Warrant to the extent that the holder would own morethan 4.99% (or, at the
election of the purchaser prior to the issuance of the Warrants, 9.99%) of the
outstanding common stock immediatelyafter exercise. Following the issuance of
the Warrants, upon notice from the holder to us, the holder may increase or
decrease the amountof beneficial ownership of outstanding stock after
exercising the holder's Warrants up to 9.99% of the number of shares of
ourcommon stock outstanding immediately after giving effect to the exercise,
as such percentage ownership is determined in accordance withthe terms of the
Warrants and in accordance with the rules and regulations of the SEC, provided
that any increase in the beneficialownership limitation shall not be effective
until 61 days following notice to us.
Cashless Exercise
If, at the time a holderexercises its Warrants, a registration statement
registering the issuance of the shares of common stock underlying the Warrants
underthe Securities Act is not then effective or available for the issuance of
such shares, then in lieu of making the cash payment otherwisecontemplated to
be made to us upon such exercise in payment of the aggregate exercise price,
the holder may elect instead to receiveupon such exercise (either in whole or
in part) the net number of shares of common stock determined according to a
formula set forthin the Warrants.
Fractional Shares
No fractional sharesof common stock will be issued upon the exercise of the
Warrants. Rather, the number of shares of common stock to be issued will be
roundedup to the next whole share or we will pay a cash adjustment equal to
such fraction multiplied by the exercise price to the holder.
Transferability
Subject to applicablelaws, the Warrants may be transferred at the option of
the holder upon surrender of the Warrants to us together with the
appropriateinstruments of transfer.
Trading Market
There is no tradingmarket available for the Warrants on any securities
exchange or nationally recognized trading system, and we do not expect a
tradingmarket to develop. We do not intend to list the Warrants on any
securities exchange or other trading market. Without a trading market,the
liquidity of the Warrants will be extremely limited. The common stock issuable
upon exercise of the Warrants is currently listedon the Nasdaq Capital Market.
Right as a Shareholder
Except as otherwiseprovided in the Warrants or by virtue of such holder's
ownership of shares of our common stock, the holders of the Warrants donot
have the rights or privileges of holders of our common stock, including any
voting rights, until they exercise their Warrants.
Fundamental Transaction
In the event of a fundamentaltransaction, as described in the Warrants and
generally including any reorganization, recapitalization or reclassification
of our commonstock, the sale, transfer or other disposition of all or
substantially all of our properties or assets, our consolidation or merger
withor into another person, the acquisition of greater than 50% of our
outstanding common stock, or any person or group becoming the beneficialowner
of greater than 50% of the voting power represented by our outstanding common
stock, the holders of the Warrants will be entitledto receive upon exercise of
the Warrants the kind and amount of securities, cash or other property that
the holders would have receivedhad they exercised the Warrants immediately
prior to such fundamental transaction. In addition, in the event of a
fundamental transactionwhich is approved by our board of directors, the
holders of the Warrants have the right to require us or a successor entity to
redeemthe Warrants for cash in the amount of the Black-Scholes Value (as
defined in the Warrants) of the unexercised portion of the Warrantson the date
of the consummation of the fundamental transaction. In the event of a
fundamental transaction
whichis not in our control, including a fundamental transaction
not approved by our board of directors, the holders of the Warrantshave the
right to require us or a successor entity to redeem the Warrants for the
consideration paid in the fundamental transaction inthe amount of the
Black-Scholes Value of the unexercised portion of the Warrants on the date of
the consummation of the fundamental transaction.
42
Amendments
The Warrants may bemodified or amended with the written consent of the holder
of such Warrants and us.
Pre-Funded Warrants
The following summaryof certain terms and provisions of the pre-funded
warrants that are being issued hereby is not complete and is subject to,and
qualified in its entirety by, the provisions of the pre-funded warrant, the
form of which will be filed as an exhibit tothe registration statement of
which this prospectus forms a part. Prospective investors should carefully
review the terms and provisionsof the form of pre-funded warrant for a
complete description of the terms and conditions of the pre-funded warrants.
Duration and ExercisePrice
Each pre-funded warrantoffered hereby will have an initial exercise price per
share equal to $0.0001. The pre-funded warrants will be immediatelyexercisable
and may be exercised at any time until all of the pre-funded warrants are
exercised in full. The exercise priceand number of shares of common stock
issuable upon exercise is subject to appropriate adjustment in the event of
stock dividends, stocksplits, reorganizations or similar events affecting our
common stock and the exercise price. The pre-funded warrants will beissued
separately from the accompanying Warrants, in certificated form only.
Exercisability
The pre-funded warrantswill be exercisable, at the option of each holder, in
whole or in part, by delivering to us a duly executed exercise notice
accompaniedby payment in full for the number of shares of our common stock
purchased upon such exercise (except in the case of a cashless exerciseas
discussed below). A holder (together with its affiliates) may not exercise any
portion of the pre-funded warrant to the extentthat the holder would own more
than 4.99% (or, at the election of the purchaser prior to the issuance of the
pre-funded warrant,9.99%) of the outstanding common stock immediately after
exercise. Following the issuance of the pre-funded warrants, uponnotice from
the holder to us, the holder may increase or decrease the amount of beneficial
ownership of outstanding stock after exercisingthe holder's pre-funded
warrants up to 9.99% of the number of shares of our common stock outstanding
immediately aftergiving effect to the exercise, as such percentage ownership
is determined in accordance with the terms of the pre-funded warrantsand in
accordance with the rules and regulations of the SEC. Purchasers of pre-funded
warrants in this offering may also electprior to the issuance of the
pre-funded warrants to have the initial exercise limitation set at 9.99% of
our outstanding commonstock, provided that any increase in the beneficial
ownership limitation shall not be effective until 61 days following notice to
us.
Cashless Exercise
In lieu of making thecash payment otherwise contemplated to be made to us upon
such exercise in payment of the aggregate exercise price, the holder may
electinstead to receive upon such exercise (either in whole or in part) the
net number of shares of common stock determined according to aformula set
forth in the pre-funded warrants.
Transferability
Subject to applicablelaw, pre-funded warrant may be transferred at the option
of the holder upon surrender of the pre-funded warrant tous together with the
appropriate instruments of transfer.
Fractional Shares
No fractional sharesof common stock will be issued upon the exercise of the
pre-funded warrants. Rather, the number of shares of common stock tobe issued
will be rounded up to the next whole share or we will pay a cash adjustment to
such fraction multiplied by the exercise priceto the holder.
43
Trading Market
There is no tradingmarket available for the pre-funded warrants on any
securities exchange or nationally recognized trading system, and we donot
expect a trading market to develop. We do not intend to list the pre-funded
warrants on any securities exchange or othertrading market. Without a trading
market, the liquidity of the pre-funded warrants will be extremely limited.
The common stockissuable upon exercise of the pre-funded warrants is currently
listed on the Nasdaq Capital Market.
Right as a Stockholder
Except as otherwiseprovided in the pre-funded warrants or by virtue of such
holder's ownership of shares of our common stock, the holdersof the pre-funded
warrants do not have the rights or privileges of holders of our common stock,
including any voting rights,until they exercise their pre-funded warrants. The
pre-funded warrants will provide that holders have the right toparticipate in
distributions or dividends paid on our common stock.
Fundamental Transaction
In the event of a fundamentaltransaction, as described in the pre-funded
warrants and generally including any reorganization, recapitalization or
reclassificationof our common stock, the sale, transfer or other disposition
of all or substantially all of our properties or assets, our consolidationor
merger with or into another person, the acquisition of greater than 50% of our
outstanding common stock, or any person or group becomingthe beneficial owner
of greater than 50% of the voting power represented by our outstanding common
stock, the holders of the pre-funded warrantswill be entitled to receive upon
exercise of the pre-funded warrants the kind and amount of securities, cash or
other property thatthe holders would have received had they exercised the
pre-funded warrants immediately prior to such fundamental transaction.
Amendments
The pre-funded warrantsmay be modified or amended with the written consent of
the holder of such pre-funded warrant and us.
Placement Agent Warrants
The following summaryof certain terms and provisions of the Placement Agent
Warrants that are being issued hereby is not complete and is subject to, and
qualifiedin its entirety by, the provisions of the Placement Agent Warrants,
the form of which will be filed as an exhibit to the registrationstatement of
which this prospectus forms a part. Prospective investors should carefully
review the terms and provisions of the form ofPlacement Agent Warrant for a
complete description of the terms and conditions of the Placement Agent
Warrant.
Duration and ExercisePrice
Each Placement AgentWarrant offered hereby will have an initial exercise price
equal to $0.2963 per share of common stock. The Placement Agent Warrantswill
be exercisable beginning on the effective date of the Stockholder Approval and
will expire five years from the commencement of salesin this offering. The
exercise price and number of shares of common stock issuable upon exercise is
subject to appropriate adjustmentin the event of stock dividends, stock
splits, reorganizations or similar events affecting our common stock and the
exercise price.
44
Exercisability
The Placement AgentWarrants will be exercisable, at the option of each holder,
in whole or in part, by delivering to us a duly executed exercise
noticeaccompanied by payment in full for the number of shares of our common
stock purchased upon such exercise (except in the case ofa cashless exercise
as discussed below). A holder (together with its affiliates) may not exercise
any portion of the Placement AgentWarrant to the extent that the holder would
own more than 4.99% (or, at the election of the purchaser prior to the
issuance of such warrants, 9.99%) of the outstanding common stock immediately
after exercise, except that upon notice from the holder to us, the holdermay
increase or decrease the amount of beneficial ownership of outstanding stock
after exercising the holder's Placement AgentWarrant up to 9.99% of the number
of shares of our common stock outstanding immediately after giving effect to
the exercise, assuch percentage ownership is determined in accordance with the
terms of the Placement Agent Warrants and in accordance with the rules
andregulations of the SEC, provided that any increase in the beneficial
ownership limitation shall not be effective until 61 days followingnotice to
us.
Cashless Exercise
If, at the time a holderexercises its Placement Agent Warrants, a registration
statement registering the issuance of the shares of common stock underlying
thePlacement Agent Warrants under the Securities Act is not then effective or
available for the issuance of such shares, then in lieu ofmaking the cash
payment otherwise contemplated to be made to us upon such exercise in payment
of the aggregate exercise price, the holdermay elect instead to receive upon
such exercise (either in whole or in part) the net number of shares of common
stock determined accordingto a formula set forth in the Placement Agent
Warrants.
Fractional Shares
No fractional sharesof common stock will be issued upon the exercise of the
Placement Agent Warrants. Rather, the number of shares of common stock to
beissued will be rounded up to the next whole share or we will pay a cash
adjustment equal to such fraction multiplied by the exerciseprice to the
holder.
Transferability
Subject to applicablelaws, a Placement Agent Warrant may be transferred at the
option of the holder upon surrender of the Placement Agent Warrant to us
togetherwith the appropriate instruments of transfer.
Trading Market
There is no tradingmarket available for the Placement Agent Warrants on any
securities exchange or nationally recognized trading system, and we do not
expecta trading market to develop. We do not intend to list the Placement
Agent Warrants on any securities exchange or other trading market.Without a
trading market, the liquidity of the Placement Agent Warrants will be
extremely limited. The common stock issuable upon exerciseof the Placement
Agent Warrants is currently listed on the Nasdaq Capital Market.
Right as a Shareholder
Except as otherwiseprovided in the Placement Agent Warrants or by virtue of
such holder's ownership of shares of our common stock, the holders ofthe
Placement Agent Warrants do not have the rights or privileges of holders of
our common stock, including any voting rights, untilthey exercise their
Placement Agent Warrants.
45
Fundamental Transaction
In the event of a fundamentaltransaction, as described in the Placement Agent
Warrants and generally including any reorganization, recapitalization or
reclassificationof our common stock, the sale, transfer or other disposition
of all or substantially all of our properties or assets, our consolidationor
merger with or into another person, the acquisition of greater than 50% of our
outstanding common stock, or any person or group becomingthe beneficial owner
of greater than 50% of the voting power represented by our outstanding common
stock, the holders of the PlacementAgent Warrants will be entitled to receive
upon exercise of the Placement Agent Warrants the kind and amount of
securities, cash or otherproperty that the holders would have received had
they exercised the Placement Agent Warrants immediately prior to such
fundamental transaction.In addition, in the event of a fundamental transaction
which is approved by our board of directors, the holders of the Placement
AgentWarrants have the right to require us or a successor entity to redeem the
Placement Agent Warrant for cash in the amount of the Black-Scholesvalue of
the unexercised portion of the Placement Agent Warrant on the date of the
consummation of the fundamental transaction. In theevent of a fundamental
transaction which is not approved by our board of directors, the holders of
the Placement Agent Warrants havethe right to require us or a successor entity
to redeem the Placement Agent Warrants for the consideration paid in the
fundamental transactionin the amount of the Black Scholes value of the
unexercised portion of the Placement Agent Warrant on the date of the
consummation ofthe fundamental transaction.
Amendments
The Placement AgentWarrants may be modified or amended with the written
consent of the holder of such Placement Agent Warrants and us.
46
PLANOF DISTRIBUTION
We have engaged H.C. Wainwright & Co., LLC (the "Placement Agent")
to act as our exclusive placementagent to solicit offers to purchase the
securities offered pursuant to this prospectus on a "reasonable best efforts"
basis.The engagement agreement does not give rise to any commitment by the
Placement Agent to purchase any of our securities, and the PlacementAgent will
have no authority to bind us by virtue of the engagement agreement. The
Placement Agent is not purchasing or selling any ofthe securities offered by
us under this prospectus, nor is it required to arrange for the purchase or
sale of any specific number ordollar amount of securities. This is a best
efforts offering and there is no minimum offering amount required as a
condition to the closingof this offering. The Placement Agent has agreed to
use reasonable best efforts to arrange for the sale of the securities by us.
Therefore,we may not sell all of the shares of common stock, pre-funded
warrants and Warrants being offered. The terms of this offering are subjectto
market conditions and negotiations between us, the Placement Agent and
prospective investors. The Placement Agent does not guaranteethat it will be
able to raise new capital in any prospective offering. The Placement Agent may
engage sub-agents or selected dealersto assist with the offering.
Investors purchasingsecurities offered hereby will have the option to execute
a securities purchase agreement with us. In addition to rights and
remediesavailable to all purchasers in this offering under federal securities
and state law, the purchasers which enter into a securities purchaseagreement
will also be able to bring claims of breach of contract against us. The
ability to pursue a claim for breach of contract ismaterial to larger
purchasers in this offering as a means to enforce the following covenants
uniquely available to them under the securitiespurchase agreement: (i) a
covenant to not enter into variable rate financings for a period of one/year
following the closingof the offering, subject to an exception; and (ii) a
covenant to not enter into any equity financings for 90 days from closing
ofthe offering, subject to certain exceptions. The nature of the representations
, warranties and covenants in the securities purchase agreementsshall include:
• standard issuer representations and warranties on matters such as organization, qualification,
authorization, no conflict, no governmental filings required, current in SEC filings, no
litigation, labor or other compliance issues, environmental, intellectual property and title
matters and compliance with various laws such as the Foreign Corrupt Practices Act; and
• covenants regarding matters such as registration of Warrant shares, no integration with
other offerings, no stockholder rights plans, no material nonpublic information, use
of proceeds, indemnification of purchasers, reservation and listing of shares of common
stock, and no subsequent equity sales for 90 days, subject to certain exceptions.
The securities will beoffered at a fixed combined public offering price and
are expected to be issued in a single closing. We expect this offering to be
completedon or about May 2, 2024, and we will deliver all securities to be
issued in connection with this offering delivery versus payment/receiptversus
payment upon receipt by us of investor funds. Accordingly, neither we nor the
Placement Agent have made any arrangements to placeinvestor funds in an escrow
account or trust account since the Placement Agent will not receive investor
funds in connection with thesale of the securities offered hereunder.
We expect to deliverthe shares and securities to the purchasers in the
offering on or about May 2, 2024, subject to satisfaction of certain conditions
Fees and Expenses
The following tableshows per share and accompanying Warrants and per
pre-funded warrant and accompanying Warrants Placement Agent fees and
totalPlacement Agent fees we will pay in connection with the sale of the
securities in this offering, assuming the purchase of all of thesecurities we
are offering.
Per share and accompanying Warrants Placement Agent cash fees $0.017
Per pre-funded warrant and accompanying Warrants Placement Agent cash fees $0.017
Total $280,000
47
We have agreed to paythe Placement Agent a total cash fee equal to 7.0% of the
gross proceeds of this offering and a management fee equal to 1.0% of the
grossproceeds raised in this offering. We will also pay the Placement Agent a
non-accountable expense allowance of $25,000, $15,950for the expenses of its
clearing firm, and will reimburse the Placement Agent's legal fees and
expenses in an amount up to $100,000.We estimate the total offering expenses
of this offering that will be payable by us, excluding the Placement Agent's
fees and expenses,will be approximately $0.3 million. After deducting the
Placement Agent's fees and our estimated offering expenses, we expect thenet
proceeds from this offering to be approximately $3.3 million.
Placement Agent Warrants
We have agreed to grantPlacement Agent Warrants to the Placement Agent to
purchase a number of shares of our common stock equal to 6.0% of the aggregate
numberof shares of common stock and pre-funded warrants sold to the investors
in this offering. The Placement Agent Warrants will havean exercise price of
$0.2963 (125% of the combined public offering price per share of common stock
and accompanying Warrants) and will terminate on the five year anniversary of
commencement of sales in this offering. The PlacementAgent Warrants are
registered on the registration statement of which this prospectus is a part.
The form of the Placement Agent Warrantsis included as an exhibit to this
registration statement of which this prospectus forms a part.
Right of First Refusal
We have granted thePlacement Agent a right of first refusal for a period of 10
months following the closing of this offering to act as sole book-runningmanager
, sole underwriter or sole placement agent for each and every future public or
private offering or other capital-raising financingof equity or equity-linked
securities using an underwriter or placement agent by us or any of our
successors or subsidiaries, subjectto certain exceptions.
Tail
We have also agreedto pay the Placement Agent a tail fee equal to the cash and
warrant compensation in this offering, if any investor, who was wall-crossedby
the Placement Agent with respect to a non-public offering or had back and
forth correspondence with the Placement Agent with respectto a public offering
of our securities, in each case during the term of its engagement, provides us
with capital in any public or privateoffering or other financing or capital
raising transaction during the 12-month period following expiration or
termination ofour engagement of the Placement Agent, subject to an exception.
Other Relationships
From time to time, thePlacement Agent may provide in the future, various
advisory, investment and commercial banking and other services to us in the
ordinarycourse of business, for which it may receive customary fees and
commissions. Except as disclosed in this prospectus, we have no presentarrangeme
nts with the Placement Agent for any services.
Determination ofOffering Price
Thecombined offering price per share and accompanying Warrants and the
combined offering price per pre-funded warrants and accompanyingWarrants we
are offering and the exercise prices and other terms of the Warrants were
negotiated between us and the investors, in consultationwith the Placement
Agent based on the trading of our common stock prior to this offering, among
other things. Other factors consideredin determining the offering prices of
the securities we are offering and the exercise prices and other terms of the
Warrants includethe history and prospects of our company, the stage of
development of our business, our business plans for the future and the
extentto which they have been implemented, an assessment of our management,
general conditions of the securities markets at the time of theoffering and
such other factors as were deemed relevant.
48
Lock-up Agreements
We and each of our executiveofficers, directors and holders of 10% or greater
of our outstanding shares of common stock have agreed with the Placement Agent
to besubject to a lock-up period of 90 days following the date of closing of
the offering pursuant to this prospectus. This meansthat, during the
applicable lock-up period, we and such persons may not offer for sale,
contract to sell, sell, distribute,grant any option, right or warrant to
purchase, pledge, hypothecate or otherwise dispose of, directly or indirectly,
any of our sharesof common stock or any securities convertible into, or
exercisable or exchangeable for, shares of common stock, subject to customary
exceptions.The Placement Agent may waive the terms of these lock-up agreements
in its sole discretion and without notice. In addition,we have agreed to not
issue any securities that are subject to a price reset based on the trading
prices of our common stock or upon aspecified or contingent event in the
future or enter into any agreement to issue securities at a future determined
price for a periodof one year following the closing date of this offering,
subject to an exception. The Placement Agent may waive this prohibition in
itssole discretion and without notice.
Transfer Agent andRegistrar
The transfer agent andregistrar for our common stock is VStock Transfer, LLC.
Nasdaq Listing
Our common stock is currentlylisted on the Nasdaq Capital Market under the
symbol "MBIO." On April 29, 2024, the reported closing price per share of
ourcommon stock was $0.237. We do not plan to list the Warrants or the
pre-funded warrants on the Nasdaq Capital Market or any other securitiesexchange
or trading market.
Indemnification
We have agreed to indemnifythe Placement Agent against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments
the PlacementAgent may be required to make with respect to any of these
liabilities.
Regulation M
The Placement Agentmay be deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act and any fees received by it andany
profit realized on the sale of the securities by it while acting as principal
might be deemed to be underwriting discounts or commissionsunder the
Securities Act. The Placement Agent will be required to comply with the
requirements of the Securities Act and the ExchangeAct, including, without
limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules
and regulations maylimit the timing of purchases and sales of our securities
by the Placement Agent. Under these rules and regulations, the PlacementAgent
may not (i) engage in any stabilization activity in connection with our
securities; and (ii) bid for or purchase anyof our securities or attempt to
induce any person to purchase any of our securities, other than as permitted
under the Exchange Act,until they have completed their participation in the
distribution.
Electronic Offer,Sale and Distribution of Securities
A prospectus in electronicformat may be made available on the websites
maintained by the Placement Agent, if any, participating in this offering and
the PlacementAgent may distribute prospectuses electronically. Other than the
prospectus in electronic format, the information on these websites isnot part
of this prospectus or the registration statement of which this prospectus
forms a part, has not been approved or endorsed byus or the Placement Agent,
and should not be relied upon by investors.
49
LEGAL MATTERS
The validity of the securities offered in thisprospectus will be passed upon
for us by Troutman Pepper Hamilton Sanders LLP, Charlotte, North Carolina. The
Placement Agent is beingrepresented by Ellenoff, Grossman & Schole LLP, New
York, New York.
EXPERTS
The financial statements of Mustang Bio, Inc.as of December 31, 2023 and 2022,
and for each of the years in the two-year period ended December 31, 2023, have
been incorporatedby reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by referenceherein,
and upon the authority of said firm as experts in accounting and auditing. The
audit report covering the December 31, 2023financial statements contains an
explanatory paragraph that states the Company's expectation to generate
operating losses and negativeoperating cash flows in the future, and the need
for additional funding to support its planned operations raise substantial
doubt aboutits ability to continue as a going concern. The financial
statements do not include any adjustments that might result from the outcomeof
that uncertainty
.
WHEREYOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statementon Form S-1, including
exhibits and schedules, under the Securities Act, with respect to the shares
of common stock being offeredby this prospectus. This prospectus, which
constitutes part of the registration statement, does not contain all of the
information inthe registration statement and its exhibits. For further
information with respect to us and the common stock offered by this
prospectus,we refer you to the registration statement and its exhibits and to
the documents incorporated by reference herein. Statements containedin this
prospectus as to the contents of any contract or any other document referred
to are not necessarily complete, and in each instance,we refer you to the copy
of the contract or other document filed as an exhibit to the registration
statement or a document incorporatedby reference herein. Each of these
statements is qualified in all respects by this reference.
You may read our SEC filings, including thisregistration statement, over the
Internet at the SEC's website at www.sec.gov. Upon the completion of this
offering, we will besubject to the information reporting requirements of the
Exchange Act and we will file reports, proxy statements and other
informationwith the SEC. These reports, proxy statements and other information
will be available for review on the web site of the SEC referredto above. We
also maintain a website at
www.mustangbio.com
, at which you may access these materials free of charge as soonas reasonably
practicable after they are electronically filed with, or furnished to, the
SEC. Information contained on or accessiblethrough our website is not a part
of this prospectus, and the inclusion of our website address in this
prospectus is an inactive textualreference only.
50
INCORPORATION OF CERTAININFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference"information from other
documents that we file with it, which means that we can disclose important
information to you by referring youto those documents. The information
incorporated by reference is considered to be part of this prospectus.
Information in this prospectussupersedes information incorporated by reference
that we filed with the SEC prior to the date of this prospectus. We
incorporate by referenceinto this prospectus and the registration statement of
which this prospectus is a part the information or documents listed below
thatwe filed with the SEC (File No. 001-38191):
• our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 11, 2024;
• our Current Reports on Form 8-K filed with the SEC on
January 4, 2024
;
January 25, 2024
;
February 14, 2024
;
March 15, 2024
;
March 29, 2024
; and
April 12, 2024
; and
• the description of our common stock contained in our registration statement on Form 8-A filed with the SEC
on August 21, 2017, including any amendments or reports filed for the purposes of updating this description.
Notwithstanding the statements in the precedingparagraphs, no document, report
or exhibit (or portion of any of the foregoing) or any other information that
we have "furnished"to the SEC pursuant to the Exchange Act shall be
incorporated by reference into this prospectus.
We also incorporate by reference into this prospectusall documents (other than
current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on suchform that are related to such items) that are filed by
us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of theExchange
Act (i) after the date of the initial filing of the registration statement of
which this prospectus forms a part and priorto effectiveness of the
registration statement, or (ii) after the date of this prospectus but prior to
the termination of the offering.These documents include periodic reports, such
as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reportson Form 8-K, as well as proxy statements on Schedule 14A.
We will provide to each person, including anybeneficial owner, to whom a
prospectus is delivered, without charge upon written or oral request, a copy
of any or all of the documentsthat are incorporated by reference into this
prospectus but not delivered with the prospectus, including exhibits that are
specificallyincorporated by reference into such documents. You should direct
any requests for documents to Mustang Bio, Inc., 377 PlantationStreet,
Worcester, Massachusetts 01605, Attn: General Counsel, or by calling (781)
652-4500.
You also may access these filings on our websiteat
www.mustangbio.com
. We do not incorporate the information on our website into this prospectus or
any supplement to thisprospectus and you should not consider any information
on, or that can be accessed through, our website as part of this prospectus
orany supplement to this prospectus (other than those filings with the SEC
that we specifically incorporate by reference into this prospectusor any
supplement to this prospectus). You may also access these filings at the SEC's
website at
www.sec.gov
.
Any statement contained in a document incorporatedor deemed to be incorporated
by reference in this prospectus will be deemed modified, superseded or
replaced for purposes of this prospectusto the extent that a statement
contained in this prospectus modifies, supersedes or replaces such statement.
51
1,160,000 Shares of Common Stock
15,717,638 Pre-funded Warrants to Purchase upto 15,717,638 Shares of Common
Stock
16,877,638 Series A-1 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
16,877,638 Series A-2 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
16,877,638 Series A-3 Warrants to Purchase upto 16,877,638 Shares of Common
Stock
1,012,658 Placement Agent Warrants to Purchaseup to 1,012,658 Shares of Common
Stock
Up to 67,363,210 Shares of Common StockIssuable Upon Exercise of
the Series A-1 Warrants, Series A-2 Warrants,Series A-3 Warrants, Pre-funded
Warrants and Placement Agent Warrants
PROSPECTUS
April 29, 2024
H.C. Wainwright &Co.
52
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