Filed Pursuant to Rule 424(b)(4) |
Registration No. 333-263700 |
The information in this preliminary
prospectus supplement and the accompanying prospectus, relating to an effective registration statement under the Securities Act of 1933,
as amended, is not complete and may be changed. This preliminary prospectus supplement and the accompanying prospectus are not an offer
to sell these securities and we are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
PRELIMINARY PROSPECTUS SUPPLEMENT |
SUBJECT TO COMPLETION |
DATED May 17 2024 |
(To the Prospectus dated April 28, 2022)
Shares of Common Stock
![](https://www.sec.gov/Archives/edgar/data/1818844/000110465924062974/tm2414845d1_424b3img01.jpg)
Virios Therapeutics, Inc.
We are offering shares
of our common stock, par value $0.0001 per share (“Common Stock”), at a price of $ per
share, pursuant to this prospectus supplement and the accompanying prospectus.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “VIRI.” On May 16, 2024, the last reported sale price of our common stock on the Nasdaq Capital Market
was $0.39 per share.
We are an “emerging growth company”
under the federal securities laws and have elected to comply with certain reduced public company reporting requirements.
As of May 15, 2024, the aggregate
market value of our Common Stock held by our non-affiliates was $10,596,604.64, based upon 18,270,008 shares of our outstanding
Common Stock held by non-affiliates at the per share price of $0.58, the closing sale price of our Common Stock on the Nasdaq
Capital Market on April 1, 2024. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
in a public offering with a value exceeding more than one-third of our “public float” (i.e., the aggregate market
value of our Common Stock held by our non-affiliates) in any 12 calendar-month period so long as our public float remains below
$75.0 million. During the 12 calendar months prior to and including the date of this prospectus supplement (but excluding this offering),
we have sold $1,355,090.77 of securities in reliance on General Instruction I.B.6 of Form S-3. As a result, we are eligible
to offer and sell up to an aggregate of $2,177,110.78 of our securities pursuant to General Instruction I.B.6. of Form S-3.
We have engaged Maxim Group LLC (the
“placement agent” or “Maxim”) to act as our exclusive placement agent in connection with this offering. The placement
agent has agreed to use its reasonable best efforts to arrange for the sale of the securities offered in this offering. The placement
agent is not purchasing or selling any of the securities we are offering, and the placement agent is not required to arrange the purchase
or sale of any specific number of securities or dollar amount. There is no required minimum number of securities that must be sold as
a condition to completion of this offering, and there are no arrangements to place the funds in an escrow, trust, or similar account.
See “Plan of Distribution” beginning on page S-10 of this prospectus supplement for more information regarding these
arrangements.
INVESTING IN OUR SECURITIES INVOLVES A VERY
HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS DESCRIBED IN “RISK FACTORS” BEGINNING ON PAGE S-5 OF THIS PROSPECTUS
SUPPLEMENT AND INFORMATION INCLUDED AND INCORPORATED BY REFERENCE, INCLUDING, BUT NOT LIMITED TO, THE RISK FACTORS SPECIFIED IN OUR MOST
RECENT ANNUAL REPORT ON FORM 10-K BEFORE INVESTING IN OUR SECURITIES.
Neither the U.S. Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
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Per Share | | |
Total | |
Public offering price | |
$ | | | |
$ | | |
Placement agent fees(1) | |
$ | | | |
$ | | |
Net proceeds to us (before expenses) | |
$ | | | |
$ | | |
(1) |
Includes a cash fee of up to 8% of the gross proceeds of this offering. In addition, we have agreed to reimburse certain expenses of the placement agent in connection with this offering. |
Delivery of the shares of Common Stock offered
hereby is expected to be made on or about May , 2024, subject to satisfaction of customary closing conditions.
Maxim Group LLC
The date of this prospectus supplement is May ,
2024.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PROSPECTUS
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement
relates to the offering of our common stock. Before buying any of the common stock that we are offering, you should carefully read the
accompanying base prospectus, this prospectus supplement, any supplement to this prospectus supplement, the information and documents
incorporated herein by reference and the additional information under the heading “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference.” These documents contain important information that you should consider
when making your investment decision.
We provide information to
you about this offering of our common stock in two separate documents that are bound together: (i) this prospectus supplement, which describes
the specific details regarding this offering; and (ii) the accompanying base prospectus, which provides general information, some of which
may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined.
If information in this prospectus supplement is inconsistent with the accompanying base prospectus, you should rely on this prospectus
supplement. To the extent there is a conflict between the information contained in this prospectus supplement, on the one hand, and the
information contained in any document incorporated by reference in this prospectus supplement, on the other hand, you should rely on the
information in this prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document
having a later date—for example, a document incorporated by reference into this prospectus supplement—the statement in the
document having the later date modifies or supersedes the earlier statement.
You should rely only on this
prospectus supplement and the information incorporated or deemed to be incorporated by reference in this prospectus supplement or in any
free writing prospectuses we provide you. We have not, and the placement agent has not, authorized anyone to provide you with information
that is in addition to, or different from, that contained or incorporated by reference in this prospectus supplement. If anyone provides
you with different or inconsistent information, you should not rely on it. We are not, and the placement agent is not, offering to sell
securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained or incorporated
by reference in this prospectus supplement is accurate as of any date other than as of the date of this prospectus supplement or in the
case of the documents incorporated by reference, the date of such documents regardless of the time of delivery of this prospectus supplement
or any sale of our common shares. Our business, financial condition, liquidity, results of operations, and prospects may have changed
since those dates.
In this prospectus, unless
otherwise indicated, “our company,” “Virios,” “Virios Therapeutics,” “we,” “us”
or “our” refer to Virios Therapeutics, Inc., a Delaware corporation. When we refer to “you,” we mean the potential
holders of the applicable class or series of securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement,
the accompanying prospectus, and the documents we incorporate by reference in this prospectus supplement contain forward-looking statements.
All statements other than statements of historical facts contained in this prospectus supplement, including statements regarding our future
results of operations and financial position, business strategy, prospective products, product approvals, research and development costs,
timing and likelihood of success, plans and objectives of management for future operations and future results of anticipated products,
are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important factors that may cause
our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed
or implied by the forward-looking statements.
Forward-looking statements
may be identified by the use of the words “aim,” “anticipate,” “assume,” “believe,” “contemplate,”
“continue,” “could,” “design,” “due,” “estimate,” “expect,” “goal,”
“intend,” “may,” “objective,” “plan,” “predict,” “positioned,”
“potential,” “seek,” “should,” “target,” “will,” “would” and other
similar words and phrases, including the negatives of these terms, or other variations of these terms, that denote future events. The
forward-looking statements in this prospectus supplement and the documents we incorporate by reference in this prospectus supplement are
only predictions. We have based these forward-looking statements largely on our current expectations and projections about future events
and financial trends that we believe may affect our business, financial condition and results of operations. These forward-looking statements
speak only as of the date of this prospectus supplement and are subject to a number of risks, uncertainties and assumptions described
under the sections in this prospectus supplement titled “Risk Factors” and elsewhere in this prospectus supplement. Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events and
circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially from
those projected in the forward-looking statements. Moreover, we operate in an evolving environment. New risk factors and uncertainties
may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required
by applicable law, we do not plan to publicly update or revise any forward-looking statements contained herein, whether as a result of
any new information, future events, changed circumstances or otherwise. Although we believe that we have a reasonable basis for each forward-looking
statement contained in this this prospectus supplement, we caution you that these statements are based on a combination of facts and factors
currently known by us and our expectations of the future, about which we cannot be certain.
These forward-looking statements
include, though are not limited to, statements about future results of operations, financial position, research and development costs,
regulatory approvals, stock exchange listing, capital requirements and our needs for additional financing.
We caution you that the
aforementioned statements may not contain all of the forward-looking statements made in this prospectus supplement.
You should read this prospectus
supplement and the documents that we reference in this prospectus supplement and have filed as exhibits to the registration statement,
of which this prospectus supplement is a part, completely and with the understanding that our actual future results may be materially
different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
PROSPECTUS SUPPLEMENT SUMMARY
The information below
is a summary of the more detailed information included elsewhere in or incorporated by reference into this prospectus supplement. Because
this is only a summary, however, it does not contain all of the information that may be important to you. You should carefully read this
prospectus supplement and the accompanying base prospectus, including the documents incorporated by reference, which are described under
“Where You Can Find Additional Information” and “Information Incorporated by Reference” in this prospectus supplement.
You should also carefully consider the matters discussed in the section in this prospectus supplement and our Annual Report on form 10-K
entitled “Risk Factors.”
Our Business
Overview
We are a development-stage
biotechnology company focused on advancing novel antiviral therapies to treat diseases associated with activation of previously dormant
herpesviruses that trigger an abnormal immune response such as Fibromyalgia (“FM”) and Long-COVID (“LC”). Overactive
immune response related to activation of tissue resident herpesvirus has been postulated to be a potential root cause of chronic illnesses
such as FM, irritable bowel syndrome, LC, chronic fatigue syndrome and other functional somatic syndromes, all of which are characterized
by a waxing and waning manifestation of disease, often triggered by events which compromise the immune system. While not completely understood,
there is general agreement in the medical community that activation of the herpesvirus is triggered by some form of environmental and/or
health stressor. Our lead product candidates, IMC-1 and IMC-2, are novel, proprietary, fixed dose combinations of nucleoside analog,
anti-herpes antivirals and the anti-inflammatory agent, celecoxib. IMC-1 is a novel combination of famciclovir and celecoxib intended
to synergistically suppress herpesvirus activation and replication, with the end goal of reducing viral mediated disease burden. IMC-2
is a combination of valacyclovir and celecoxib that like IMC-1, is intended to synergistically suppress herpesvirus activation and replication
with a more specific activity against the Epstein-Barr virus (herpesvirus HHV-4).
IMC-1 and IMC-2 combine
two specific mechanisms of action purposely designed to inhibit herpesvirus activation and replication, thereby keeping the herpesvirus
in a latent (dormant) state or “down-regulating” the herpesvirus from a lytic (active) state back to latency. The famciclovir
component of IMC-1 and the valacyclovir component of IMC-2 inhibit viral DNA replication. The celecoxib component of IMC-1 and
IMC-2 inhibits cyclooxegenase-2 (COX-2) and to a lesser degree cyclooxegenase-1 (COX-1) enzymes, two proteins which are
used by the herpesvirus to amplify or accelerate its own replication. We are unaware of any other antivirals currently in development
for the treatment of FM or related conditions. We believe this novel approach was a germane consideration in the U.S. Food and Drug Administration
(“FDA”) designating IMC-1 for fast-track review status for the treatment of FM. IMC-1 has also been granted a synergy
patent based on the fact that neither of the individual components has proven effective in the management of FM, yet the combination therapy
generated a result that is greater than the sum of its parts.
Our novel combination antiviral
approach (combining a viral DNA polymerase inhibitor + a COX-2 inhibitor) delivers clinical benefits for patients suffering from diseases
with a suspected viral mediated catalyst, including FM and LC. We have received FDA feedback on our proposal to advance IMC-1 into Phase
3 development for the treatment of FM.
As previously
reported, in 2023, we received positive data from an exploratory, open-label, proof of concept study in LC funded by an unrestricted
grant provided to the Bateman Horne Center (“BHC”). BHC is a non-profit, interdisciplinary Center of Excellence
advancing the diagnosis and treatment of chronic fatigue disorders including myalgic encephalomyelitis/chronic fatigue syndrome, FM,
post-viral syndromes, and related comorbidities. BHC enrolled female patients diagnosed with LC illness, otherwise known as PASC.
Patients treated with a combination of Val/Cel exhibited clinically and statistically significant improvements in fatigue, pain, and
symptoms of autonomic dysfunction as well as ratings of general well-being related to LC when treated open-label for 14 weeks, as
compared to a control cohort of female LC patients matched by age and length of illness and treated with routine care. The
statistically significant improvements in PASC symptoms and general health status were particularly encouraging given that the mean
duration of LC illness was two years for both the treated and control cohort prior to enrollment in this study. Based on these data,
we met with the FDA to discuss opening an investigational new drug application to formally assess treatment of symptoms associated
with PASC using IMC-2. In December 2023, we received FDA feedback on our proposed Phase 2b study and project to commence this trial
upon securing funding for the program. In addition, in August 2023, we signed an unrestricted grant research agreement with BHC to
conduct a second, investigator-initiated, randomized, double-blinded, placebo-controlled study of LC with IMC-2. Patient enrollment
for this study began in the fourth quarter of 2023 and we expect results to be available in the second half of 2024.
In March 2024, we announced
the publication of our global patent for IMC-2 covering antiviral treatment of LC. This will enable us to streamline the process for obtaining
patent protection globally, representing a precursor to the national phase of patent examination by targeted countries across the globe.
We continue to be engaged
with potential external entities who have an interest in partnering IMC-1 for the treatment of FM and we are actively exploring opportunities
for IMC-2 for LC and complementary opportunities that will build shareholder value through strategic partnerships, collaborations or other
transactions.
Recent Developments
As previously reported,
on November 2, 2023, we received a letter from the Listing Qualifications Department of The Nasdaq Stock Market, LLC (“Nasdaq”)
notifying us that, for the previous 30 consecutive business days, the bid price for our common stock had closed below the minimum $1.00
per share requirement for continued listing on the Nasdaq. The letter stated that we had 180 calendar days, or until April 30, 2024 to
regain compliance such that the closing bid price for our common stock is at least $1.00 for a minimum of 10 consecutive business days.
On May 1, 2024, we
received another letter from Nasdaq informing us that our shares had failed to comply with the $1.00 minimum bid price required for
continued listing and, as a result, our shares continue to be subject to delisting. In accordance with the latest letter and
established Nasdaq procedures we have requested a hearing with Nasdaq at which we will seek to extend the period during which we
will seek to regain compliance. Our request for such hearing has stayed the delisting of our common stock pending a Nasdaq hearings
panel’s (the “Panel”) decision. The hearing date has been set for June 18, 2024. We intend to present a plan to
regain compliance to the Panel that includes a discussion of the events that we believe will enable us to regain compliance,
including the anticipated receipt of data from the study of IMC-2 for the treatment of Long-COVID being conducted by the Bateman
Horne Center as well as a commitment to effect a reverse stock split, which we have already received shareholder approval on, if necessary.
Emerging Growth Company
We are an “emerging
growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We could be an emerging growth company
until December 31, 2025, although circumstances could cause us to lose that status earlier, including if the market value of our common
stock held by non-affiliates exceeds $700.0 million as of the prior June 30, if we have total annual gross revenue of approximately $1.235
billion or more during any fiscal year, or if we issue more than $1.0 billion in non-convertible debt during any three-year period.
For as long as we remain
an “emerging growth company,” we may take advantage of certain exemptions from various reporting requirements that are applicable
to public companies that are not “emerging growth companies,” including:
| · | not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley
Act relating to the effectiveness of our internal control over financial reporting; |
| · | reduced disclosure obligations regarding executive compensation and financial statements in our periodic
reports, proxy statements and registration statements; and |
| · | exemptions from the requirements of holding a nonbinding advisory vote to approve executive compensation
and stockholder approval of any golden parachute payments not previously approved. |
We have elected to take
advantage of these reporting exemptions and, therefore, the information that we provide stockholders may be different than what you might
obtain from other public companies in which you hold equity interests.
Under the JOBS Act, emerging
growth companies can delay adopting new or revised accounting standards issued subsequent to the enactment of the JOBS Act until such
time as those standards apply to private companies. We have elected to use this extended transition period for complying with new or revised
accounting standards that have different effective dates for public and private companies until the earlier of the date that is (i) no
longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided by the JOBS
Act. As a result, our financial statements contained in, or incorporated by reference into, this prospectus, any prospectus supplement
and any free writing prospectus may not be comparable to companies that comply with the new or revised accounting pronouncements as of
public company effective dates.
Corporate Information
We were incorporated
under the laws of the State of Delaware on December 16, 2020 through a corporate conversion just prior to our initial public offering.
We were originally formed on February 28, 2012 as a limited liability company under the laws of the State of Alabama as Innovative
Med Concepts, LLC. On July 23, 2020, the Company changed its name from Innovative Med Concepts, LLC to Virios Therapeutics, LLC.
Our principal executive offices are located at 44 Milton Avenue, Alpharetta, Georgia and our telephone number is (866) 620-8655. Our website
address is www.virios.com. The information contained on, or that can be accessed through, our website is not incorporated by reference
into this prospectus. We have included our web address as an inactive textual reference only. We make our Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to these reports available free of charge on our website as
soon as reasonably practicable after we file these reports with the SEC.
The Offering
Common stock offered by us |
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shares. |
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Common stock outstanding immediately prior to this offering |
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19,257,937 shares. |
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Common stock to be outstanding immediately after this offering |
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shares. |
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Use of proceeds |
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We expect to receive net proceeds from the sale of shares of our common stock in this offering of approximately $ , after deducting fees and our estimated offering expenses. We intend to use the net proceeds of this offering to further advance the clinical development of IMC-2 and for working capital and general corporate purposes. See “Use of Proceeds” on page S-8. |
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Risk factors |
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Investing in our common stock involves substantial risks. See “Risk Factors” beginning on page S-5 of this prospectus supplement for a discussion of factors that you should read and consider before investing in our common stock. |
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Nasdaq Capital Market stock symbol |
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“VIRI” |
The number of shares
of common stock shown above to be outstanding after this offering is based on the 19,257,937 shares outstanding as of May 17, 2024 and
excludes the following as of that date:
| · | 2,319,422 shares of common
stock issuable upon the exercise of outstanding options, having a weighted average exercise price of $4.72 per share; |
| · | 193,875 shares of common stock
issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $11.19 per share; and |
| · | 35,578 shares of common stock
reserved for future issuance under the Amended and Restated Virios Therapeutics, Inc. 2020 Equity Incentive Plan. |
Unless otherwise indicated,
this prospectus supplement reflects and assumes no exercise of the outstanding options or warrants described above.
RISK FACTORS
Investing in our shares
of common stock involves a high degree of risk. You should carefully consider the risks, uncertainties and other factors described in
our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent quarterly reports on Form 10-Q and current reports
on Form 8-K that we have filed or will filed with the Securities and Exchange Commission (the “SEC”), and in other documents
incorporated by reference to our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and all other
information contained or incorporated by reference in this prospectus supplement and the accompanying base prospectus, including our consolidated
financial statements and the related notes, before investing in our common stock. If any of these risks materialize, our business, financial
condition or results of operations could be materially harmed. In that case, the trading price of our common stock could decline, and
you may lose some or all of your investment. The risks and uncertainties we describe are not the only ones facing us. Additional risks
not presently known to us, or that we currently deem immaterial, may also impair our business operations. If any of these risks were to
occur, our business, financial condition, or results of operations would likely suffer. In that event, the trading price of our common
stock could decline, and you could lose all or part of your investment.
Risks Related to this Offering and Ownership of Our Common Stock
If you purchase shares of our common stock
in this offering, you will incur immediate dilution in the book value of your shares.
The public offering price
of our common stock will be substantially higher than the as adjusted net tangible book value per share of our common stock. Therefore,
if you purchase our common stock in this offering, you will pay a price per share of our common stock that substantially exceeds the book
value of our tangible assets after subtracting our liabilities as of March 31, 2024. Based on a public offering price of $ per share,
you will experience immediate dilution of $ per share, representing the difference between our net tangible book value per share as of
March 31, 2024, after giving effect to this offering, and the public offering price. Further, the future exercise of any outstanding options
to purchase shares of our common stock will cause you to experience additional dilution. See “Dilution.”
Future sales of substantial amounts of our
common stock could adversely affect the market price of our common stock.
Future sales of substantial
amounts of our common stock, or securities convertible or exchangeable into shares of our common stock, into the public market, including
shares of our common stock issued upon exercise of options, or perceptions that those sales could occur, could adversely affect the prevailing
market price of our common stock and our ability to raise capital in the future.
Based on the sale of shares
of our common stock in this offering, we will be selling a number of shares of common stock which represents approximately % of the
number of shares of common stock that we currently have outstanding. Resales of substantial amounts of the shares of our common stock
issued in this offering, together with shares of our common stock issuable upon conversion or exercise of currently outstanding derivative
securities, could have a negative effect on our stock price.
We will have broad discretion in the use
of the net proceeds from this offering and may not use them effectively.
We will have broad discretion
in the application of the net proceeds from this offering and our shareholders will not have the opportunity as part of their investment
decision to assess whether the net proceeds are being used appropriately. You may not agree with our decisions, and our use of the proceeds
may not yield any return on your investment. Because of the number and variability of factors that will determine our use of the net proceeds
from this offering, their ultimate use may vary substantially from their currently intended use. Our failure to apply the net proceeds
of this offering effectively could compromise our ability to pursue our growth strategy and we might not be able to yield a significant
return, if any, on our investment of these net proceeds.
We will need to raise additional funding
to fund our working capital needs or consummate potential future acquisitions. Additional financing may not be available on acceptable
terms, or at all.
Our cash on hand as of the
date hereof is not sufficient to fund our operations and capital requirements for at least the next 12 months subsequent to the date of
this prospectus. Even if we sell all of the shares of common stock offered hereby, the expected net proceeds of this offering will not
be sufficient for us to fund the future working capital needs of our business, including funding additional research and development activities.
We may continue to seek funds through equity or debt financings, collaborative or other arrangements with corporate sources, or through
other sources of financing. Our future funding requirements, both near and long-term, will depend on many factors, including, but not
limited to the:
| · | initiation,
progress, timing, costs and results of preclinical studies and clinical trials, including patient enrollment in such trials, for IMC-1
or IMC-2 or any other future product candidates; |
| · | clinical development plans we establish for IMC-1
and/or IMC-2 and any other future product candidates; |
| · | obligation to make royalty and non-royalty sublicense
receipt payments to third-party licensors, if any, under our licensing agreements; |
| · | number and characteristics of product candidates
that we discover or in-license and develop; |
| · | outcome, timing and cost of regulatory review
by the FDA and comparable foreign regulatory authorities, including the potential for the FDA or comparable foreign regulatory authorities
to require that we perform more studies than those that we currently expect; |
| · | costs of filing, prosecuting, defending and enforcing
any patent claims and maintaining and enforcing other intellectual property rights; |
| · | effects of competing technological and market
developments; |
| · | costs and timing of the implementation of commercial-scale
manufacturing activities; and |
| · | costs
and timing of establishing sales, marketing and distribution capabilities for any product candidates for which we may receive regulatory
approval. |
Additional funding may not
be available to us on acceptable terms, or at all. Any failure to raise capital as and when needed could have a negative impact on our
financial condition and on our ability to pursue our business plans and strategies.
Our recurring losses from operations raise
substantial doubt that we will be able to continue as a going concern and our independent registered public accounting firm has issued
an audit report that includes an explanatory paragraph referring to the uncertainty regarding our ability to continue as a going concern
without additional capital becoming available. This may hinder our ability to obtain future financing.
Our financial statements
as of December 31, 2023 were prepared under the assumption that we will continue as a going concern for the next twelve
months. Due to our recurring losses from operations, we concluded that there is substantial doubt in our ability to continue as a going concern within
one year after the financial statements are issued without additional capital becoming available. Our independent registered public accounting
firm has issued an audit report that includes an explanatory paragraph referring to the uncertainty regarding our ability to continue
as a going concern without additional capital becoming available. Our ability to continue as a going concern is dependent
upon our ability to obtain additional equity or debt financing, attain further operating efficiencies, reduce expenditures, and, ultimately,
to generate revenue. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
If we are unable to maintain listing of
our common stock on the Nasdaq Capital Market or another national stock exchange, it may be more difficult for our stockholders to sell
their shares of common stock.
Nasdaq requires issuers to
comply with certain standards to remain listed on its exchange. As described above under “Recent Developments,” our common
stock is trading below $1.00 and, as described above under “Recent Developments,” we have requested a hearing with Nasdaq
at which we will seek to extend the period during which we will seek to regain compliance with Nasdaq listing requirements. Our request
for such hearing has stayed the delisting of our common stock pending a Nasdaq Panel’s decision.
If we are unable to
maintain our listing on Nasdaq, it may become more difficult for our stockholders to sell our common stock in the public market. In
addition, in the event the Company’s securities are delisted, broker-dealers have certain regulatory burdens imposed upon
them, which may discourage broker-dealers from effecting transactions in the Company’s securities, further limiting the
liquidity of such securities. Such delisting from The Nasdaq Capital Market and continued or further declines in the Company’s
share price could also greatly impair our ability to raise additional necessary capital through equity or debt financing, and could
significantly increase the ownership dilution to stockholders caused by our issuing equity in financing or other transactions.
If we implement a reverse stock split to
regain compliance with the Nasdaq continued listing requirements, such reverse stock split could have a materially adverse effect on our
business.
As described above under “Recent
Developments,” our common stock is trading below $1.00 and, as described above under “Recent Developments,” we have
requested a hearing with Nasdaq at which we will seek to extend the period during which we will seek to regain compliance with Nasdaq
listing requirements. We may implement a reverse stock split in order to regain compliance with Nasdaq Listing Rule 5550(a)(2). There
are a number of risks associated with implementing a reverse stock split, including, without limitation:
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The market price per share of our Common Stock post-reverse stock split may not remain in excess of the $1.00 minimum bid price per share, as required by Nasdaq, or we may fail to meet the other requirements for continued listing on Nasdaq, including the minimum value of listed securities, resulting in the delisting of our Common Stock from The Nasdaq Capital Market; |
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the reverse stock split may not result in a price per share that will successfully attract certain types of investors, and such resulting share price may not satisfy the investing guidelines of institutional investors or investment funds; |
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the trading liquidity of the shares of our Common Stock may not improve, or may decline, as a result of the reverse stock split and there can be no assurance that the reverse stock split, if completed, would result in the intended benefits; and |
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a reverse stock split could be viewed negatively by the market and other factors, which may adversely affect the market price of our Common Stock. |
There can be no assurances
that implementation of a reverse stock split would allow us to prevent the delisting of our Common Stock from The Nasdaq Capital Market,
and it could have a materially adverse effect on our business.
The best efforts structure of this offering
may have an adverse effect on our business plan.
The placement agent is offering
the shares of common stock in this offering on a best efforts basis. The placement agent is not required to purchase any securities, but
will use its best efforts to sell the securities offered. As a “best efforts” offering, there can be no assurance that the
offering contemplated hereby will ultimately be consummated or will result in any proceeds being made available to us. The success of
this offering will impact our ability to use the proceeds to execute our business plan. We may have insufficient capital to implement
our business plan, potentially resulting in greater operating losses unless we are able to raise the required capital from alternative
sources. There is no assurance that alternative capital, if needed, would be available on terms acceptable to us, or at all.
USE OF PROCEEDS
We estimate that the net
proceeds from the sale of our common stock in this offering will be approximately $ after deducting the estimated placement agent fees
and estimated offering expenses payable by us.
Our expected use of the net
proceeds from this offering represents our current intentions based upon our present plans and business condition. As of the date of this
prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received upon completion of this offering,
or the amounts that we will actually spend on the uses set forth below. However, we currently intend to use the net proceeds to us from
this offering to further advance the clinical development of IMC-2 and for general corporate purposes. Pending the uses described above,
we intend to invest the net proceeds from this offering in short term, interest-bearing securities such as money market accounts, certificates
of deposit, commercial paper, or direct or guaranteed obligations of the U.S. government.
The amounts and timing of
our actual use of the net proceeds will vary depending on numerous factors, including our ability to gain access to additional financing
if needed. As a result, our management will have broad discretion in the application of the net proceeds, and investors will be relying
on our judgment regarding the application of the net proceeds of this offering. In addition, we might decide to postpone or not pursue
certain activities if the net proceeds from this offering and any other sources of cash are less than expected.
DIVIDEND POLICY
We have never declared or
paid any cash dividends on our capital stock. We intend to retain future earnings, if any, to finance the operation and expansion of our
business and do not anticipate paying any cash dividends in the foreseeable future. Investors should not purchase our common stock with
the expectation of receiving cash dividends. Any future determination related to our dividend policy will be made at the discretion of
our board of directors after considering our financial condition, results of operations, capital requirements, business prospects and
other factors our board of directors deems relevant, and subject to the restrictions contained in any future financing instruments.
DILUTION
If you invest in our common
stock, you will experience dilution to the extent of the difference between the public offering price per share and the net tangible book
value per share of our common stock immediately after this offering.
Our net tangible book value
as of March 31, 2024, was $2.655 million, or $0.14 per share of our common stock. “Net tangible book value” is total assets
minus the sum of liabilities and intangible assets. “Net tangible book value per share” is net tangible book value divided
by the total number of shares outstanding. Dilution in net tangible book value per share represents the difference between the amount
per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our common stock
immediately after this offering.
After giving effect to the
sale of shares of our common stock in this offering at the public offering price of $ per share and after deducting the estimated
placement agent fees and estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2024, would
have been approximately $ , or $ per share. This represents an immediate increase in net tangible book value of $ per share
to existing stockholders and immediate dilution in net tangible book value of $ per share to new investors purchasing our common stock
in this offering at the public offering price per share. The following table illustrates this dilution on a per share basis:
Offering price per share | |
| | | |
$ | | |
Net tangible book value per share as of March 31, 2024 | |
$ | 0.14 | | |
| | |
Increase in net tangible book value per share attributable to this offering | |
$ | | | |
| | |
As adjusted net tangible book value per share after giving effect to this offering | |
| | | |
$ | | |
Dilution in net tangible book value per share to investors in this offering | |
| | | |
$ | | |
The number of shares
of common stock shown above to be outstanding after this offering is based on the 19,257,937 shares outstanding as of March 31, 2024 and
excludes the following as of that date:
| · | 2,319,422 shares of common
stock issuable upon the exercise of outstanding options, having a weighted average exercise price of $4.72 per share; |
| · | 193,875 shares of common stock
issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $11.19 per share; and |
| · | 35,578 shares of common stock
reserved for future issuance under the Amended and Restated Virios Therapeutics, Inc. 2020 Equity Incentive Plan. |
The above illustration of
dilution per share to the investors participating in this offering assumes the sale and issuance of all of the shares of common stock
being offered hereunder and no exercise of outstanding options or warrants to purchase shares of our common stock. To the extent that
options or warrants outstanding as of March 31, 2024 or issued thereafter have been or may be exercised or other shares issued, the investors
purchasing shares of our common stock in this offering may experience further dilution.
PLAN OF DISTRIBUTION
We are offering up to shares
of common stock for gross proceeds of up to $ before
deduction of placement agent fees and estimated offering expenses payable by us, in a best-efforts offering.
Pursuant to a placement agency
agreement, dated as of May , 2024, we have engaged Maxim Group LLC to act as our exclusive placement agent (“Maxim”
or the “placement agent”) to solicit offers to purchase the shares of common stock offered by this prospectus supplement.
The placement agent is not purchasing or selling any shares of common stock, nor is it required to arrange for the purchase and sale of
any specific number or dollar amount of shares of common stock, other than to use its “reasonable best efforts” to arrange
for the sale of the shares of common stock by us. There is no minimum amount of proceeds that is a condition to closing of this offering.
We will enter into a stock purchase agreement directly with certain investors, at the investor’s option, who purchase our shares
of common stock in this offering. Investors who do not enter into a stock purchase agreement shall rely solely on this prospectus supplement
in connection with the purchase of our shares of common stock in this offering. The placement agent may engage one or more subagents or
selected dealers in connection with this offering.
The placement agency agreement
provides that the placement agent’s obligations are subject to conditions contained in the placement agency agreement.
We will deliver the shares
of common stock being issued to the investors upon receipt of investor funds for the purchase of the shares of common stock offered pursuant
to this prospectus supplement. We expect to deliver the securities being offered pursuant to this prospectus on or about May , 2024.
Placement Agent Fees and Expenses
Upon the closing of this offering,
we will pay the placement agent a cash transaction fee equal to 8.0% of the aggregate gross cash proceeds to us from the sale of the securities
in the offering. Pursuant to the placement agency agreement, we will agree to reimburse the placement agent for certain accountable expenses
of the placement agent payable by us, in an aggregate amount not to exceed $75,000. The placement agency agreement, however, will provide
that in the event this offering is terminated, the placement agent will only be entitled to the reimbursement of accountable expenses
actually incurred in accordance with Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5110(g)(5)(A).
The following table shows the public offering
price, placement agent fees and proceeds, before expenses, to us.
| |
Per Share of
Common Stock | | |
Total | |
Public offering price | |
$ | | | |
$ | | |
Placement agent fees (8.0%) | |
$ | | | |
$ | | |
Proceeds, before expenses, to us | |
$ | | | |
$ | | |
We estimate that the total
expenses of the offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding
the placement agent fee, will be approximately $ ,
all of which are payable by us. This figure does not include, among other things, the placement agent’s fees and expenses (including
the legal fees, costs and expenses for the placement agent’s legal counsel) up to $75,000.
Right of First Refusal
We have agreed that
upon the closing of this offering, for a period from such closing until and including December 31, 2024, we will grant the Maxim the
right of first refusal to act as sole managing underwriter and sole book runner, sole placement agent, or sole sales agent, for any
and all future registered offerings or private placements of the Company’s equity or equity-linked securities for which the
Company retains the service of an underwriter, agent, advisor, finder or other person or entity in connection with such offering
during such period of the Company, or any successor to or any subsidiary of the Company.
Lock-Up Agreements
Subject to certain limited
exceptions, we have agreed for a period of ninety days after the closing date not to (i) issue, enter into any agreement to issue
or announce the issuance or proposed issuance of any shares of our Common Stock or other securities convertible into or exercisable or
exchangeable for shares of our Common Stock or (ii) file any registration statement or amendment or supplement thereto, other than
this prospectus or filing a registration statement on Form S-8 in connection with any employee benefit plan, in each case without
prior written consent of the placement agent. Each of our officers and directors have agreed, for a period of ninety days after the closing
of this offering, subject to certain exceptions, not to offer, sell, contract to sell, encumber, grant any option for the sale of or otherwise
dispose of any shares of our Common Stock or other securities convertible into or exercisable or exchangeable for shares of our Common
Stock without the prior written consent of the placement agent.
The placement agent may in its sole discretion
and at any time without notice release some or all of the shares subject to lock-up agreements prior to the expiration of the lock-up period.
When determining whether or not to release shares from the lock-up agreements, the placement agent will consider, among other
factors, the security holder’s reasons for requesting the release, the number of shares for which the release is being requested
and market conditions at the time.
Indemnification
We have agreed to indemnify
the placement agent against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the
placement agent may be required to make for these liabilities.
Regulation M
The placement agent may be
deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit
realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions
under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities Act
and the Exchange Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may
limit the timing of purchases and sales of our securities by the placement agent acting as principal. Under these rules and regulations,
the placement agent (i) may not engage in any stabilization activity in connection with our securities and (ii) may not bid for or purchase
any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act,
until it has completed its participation in the distribution.
Determination of Offering Price
The actual offering price
of the securities we are offering was negotiated between us, the placement agent and the investors in the offering based on the trading
of our shares of Common Stock prior to the offering, among other things. Other factors considered in determining the public offering price
of the securities we are offering include our history and prospects, 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, the general conditions of the securities
markets at the time of the offering and such other factors as were deemed relevant.
Electronic Distribution
A prospectus in electronic
format may be made available on a website maintained by the placement agent. In connection with the offering, the placement agent or selected
dealers may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses that are printable as Adobe® PDF
will be used in connection with this offering.
Other than the prospectus
in electronic format, the information on the placement agent’s website and any information contained in any other website maintained
by the placement agent is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been
approved and/or endorsed by us or the placement agent in its capacity as placement agent and should not be relied upon by investors.
Certain Relationships
The placement agent and its
affiliates have and may in the future provide, from time to time, investment banking and financial advisory services to us in the ordinary
course of business, for which they may receive customary fees and commissions.
Transfer Agent
The transfer agent and registrar
for our common stock is Broadridge Financial Solutions, Inc. The transfer agent’s principal business address is 51 Mercedes Way,
Edgewood, NY 11717, and its telephone number is 877-830-4936.
Listing
Our common stock is listed
on The Nasdaq Capital Market under the symbol “VIRI.”
Selling Restrictions
Canada. The
securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors,
as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted
clients, as defined in National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale
of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of
applicable securities laws.
Securities legislation in
certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus supplement
(including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by
the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser
should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars
of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of
National Instrument 33 105 Underwriting Conflicts (NI 33 105), the underwriters are not required to comply with the disclosure requirements
of NI 33-105 regarding underwriters conflicts of interest in connection with this offering.
European Economic Area. In
relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member
State”) an offer to the public of any securities may not be made in that Relevant Member State, except that an offer to the public
in that Relevant Member State of any securities may be made at any time under the following exemptions under the Prospectus Directive,
if they have been implemented in that Relevant Member State:
|
· |
to any legal entity which is a qualified investor as defined in the Prospectus Directive; |
|
· |
to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or |
|
· |
in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities shall result in a requirement for the publication by us or any underwriters of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision,
the expression an “offer to the public” in relation to any securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the terms of the offer and any securities to be offered so as to enable an investor
to decide to purchase any securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive
in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including
the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure
in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
United Kingdom.
Each underwriter has represented and agreed that:
|
· |
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the FSMA) received by it in connection with the issue or sale of the securities in circumstances in which Section 21(1) of the FSMA does not apply to us; and |
|
· |
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise involving the United Kingdom. |
Switzerland.
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other stock
exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for
issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland.
Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly distributed
or otherwise made publicly available in Switzerland.
Neither this document nor
any other offering or marketing material relating to the offering, or the securities have been or will be filed with or approved by any
Swiss regulatory authority. In particular, this document will not be filed with, and the offer of securities will not be supervised by,
the Swiss Financial Market Supervisory Authority FINMA, and the offer of securities has not been and will not be authorized under the
Swiss Federal Act on Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising, as defined in
CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its implementing
ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of interests in
collective investment schemes under CISA does not extend to acquirers of securities.
Australia. No
placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities
and Investments Commission (ASIC), in relation to the offering.
This prospectus does not constitute
a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001 (the Corporations Act) and does
not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the
Corporations Act.
Any offer in Australia of
the securities may only be made to persons (the Exempt Investors) who are “sophisticated investors” (within the meaning of
section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations
Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the
securities without disclosure to investors under Chapter 6D of the Corporations Act.
The securities applied for
by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under
the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant
to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies
with Chapter 6D of the Corporations Act. Any person acquiring securities must observe such Australian on-sale restrictions.
This prospectus contains
general information only and does not take account of the investment objectives, financial situation or particular needs of any
particular person. It does not contain any securities recommendations or financial product advice. Before making an investment
decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and
circumstances, and, if necessary, seek expert advice on those matters.
Notice to Prospective
Investors in the Cayman Islands. No invitation, whether directly or indirectly, may be made to the public in the Cayman Islands
to subscribe for our securities.
Taiwan. The
securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes
an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory
Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate
the offering and sale of the securities in Taiwan.
Notice to Prospective
Investors in Hong Kong. The contents of this prospectus have not been reviewed by any regulatory authority in Hong Kong. You are
advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus, you should
obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means of this prospectus
or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the Securities and Futures
Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do not result in the document
being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong) (CO) or which do not constitute
an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement, invitation or document relating
to our shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere)
which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do
so under the securities laws of Hong Kong) other than with respect to the shares which are or are intended to be disposed of only to persons
outside Hong Kong or only to “professional investors” within the meaning of the SFO and any rules made thereunder.
Notice to Prospective
Investors in the People’s Republic of China. This prospectus may not be circulated or distributed in the PRC and the shares
may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly to any resident
of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only, the PRC does
not include Taiwan and the special administrative regions of Hong Kong and Macau.
Israel. This
document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed with
or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed only
at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities
Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment
advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million
and “qualified individuals”, each as defined in the Addendum (as it may be amended from time to time), collectively referred
to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of their
clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they fall
within the scope of the Addendum, are aware of the meaning of same and agree to it.
DESCRIPTION OF SECURITIES WE ARE OFFERING
Common Stock
We are offering shares of
our Common Stock in this offering. The material terms and provisions of our Common Stock are described under the caption “Description
of Capital Stock” in the accompanying prospectus beginning on page 8.
Transfer Agent
The transfer agent and registrar
for our common stock is Broadridge Financial Solutions, Inc. The transfer agent’s principal business address is 51 Mercedes Way,
Edgewood, NY 11717, and its telephone number is 877-830-4936.
Listing
Our common stock is listed
on The Nasdaq Capital Market under the symbol “VIRI.”
LEGAL MATTERS
The validity of the securities
being offered by this prospectus will be passed upon by our counsel, Duane Morris LLP, Philadelphia, Pennsylvania. Certain legal matters
will be passed upon for the placement agent by Ellenoff Grossman & Schole LLP.
EXPERTS
The financial statements
of Virios Therapeutics, 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 audited by FORVIS, LLP, independent registered public accounting firm, as set forth in their report thereon included in Company’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and have been incorporated herein by reference. Such financial
statements have been incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting
and auditing. The report of FORVIS, LLP contains an explanatory paragraph regarding substantial doubt about the Company’s ability
to continue as a going concern.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act, and the rules and regulations promulgated under the Securities Act, with
respect to the securities offered under this prospectus supplement. This prospectus supplement, which constitutes a part of the registration
statement, does not contain all of the information contained in the registration statement and the exhibits and schedules to the registration
statement. Many of the contracts and documents described in this prospectus supplement are filed as exhibits to the registration statements
and you may review the full text of these contracts and documents by referring to these exhibits.
For further information with
respect to us and the securities offered under this prospectus supplement, reference is made to the registration statement and its exhibits
and schedules. We file reports, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K
with the SEC.
The SEC maintains an Internet
site that contains reports, proxy and information statements and other information that we file electronically with the SEC, including
us. The SEC’s Internet site can be found at http://www.sec.gov. In addition, we make available copies of these reports on or through
our Internet site at www.virios.com as soon as reasonably practicable after we electronically file or furnished them to the SEC. The information
contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus. We have included our
web address as an inactive textual reference only.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate
by reference” the information we file with the SEC. This means that we can disclose important information to you by referring you
to another filed document. Any information referred to in this way is considered part of this prospectus supplement from the date we file
that document. Any reports filed by us with the SEC after the date of this prospectus supplement and before the date that the offering
of the securities by means of this prospectus supplement is terminated will automatically update and, where applicable, supersede any
information contained in this prospectus supplement or incorporated by reference in this prospectus supplement. Accordingly, we incorporate
by reference the following documents or information filed with the SEC:
| · | our Annual Report on Form 10-K for the year
ended December 31, 2023 filed with the SEC on March 1, 2024, as amended by the Form 10-K/A, filed with the SEC on March 8, 2024 (the “2023
Annual Report”); |
| · | our Quarterly Report on Form 10-Q for the quarter
ended March 31, 2024, filed with the SEC on May 10, 2024; |
We also incorporate by reference
any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that
are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act until we file a post-effective amendment that indicates the termination of the offering of the securities
made by this prospectus, which will become a part of this prospectus from the date that such documents are filed with the SEC. Information
in such future filings updates and supplements the information provided in this prospectus supplement. Any statements in any such future
filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is
incorporated or deemed to be incorporated herein by reference to the extent that statements in the later-filed document modify or replace
such earlier statements. We will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered,
upon written or oral request, a copy of any or all of the documents incorporated by reference into this prospectus supplement but not
delivered with the prospectus, including exhibits that are specifically incorporated by reference into such documents. In addition, copies
of any or all of the documents incorporated by reference herein may be accessed at our website at www.virios.com. You should direct any
requests for documents to:
Virios Therapeutics, Inc.
44 Milton Avenue
Alpharetta, GA 30009
(866) 620-8655
Attention: Senior Vice President of Finance
PROSPECTUS
$150,000,000
![](https://www.sec.gov/Archives/edgar/data/1818844/000110465924062974/tm228976d1_s3img001.jpg)
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Rights
Warrants
Units
We may offer and sell, from
time to time in one or more offerings, any combination of common stock, preferred stock, depositary shares, debt securities, rights, warrants,
or units having a maximum aggregate offering price of $150,000,000. This prospectus provides a general description of the securities identified
above.
When we decide to sell a
particular class or series of securities, we will provide specific terms of the offered securities in a prospectus supplement. The prospectus
supplement may also add, update or change information contained in or incorporated by reference into this prospectus. However, no prospectus
supplement shall offer a security that is not registered and described in this prospectus at the time of its effectiveness. You should
read this prospectus and any prospectus supplement, as well as the documents incorporated by reference or deemed to be incorporated by
reference into this prospectus, carefully before you invest. This prospectus may not be used to offer or sell our securities unless accompanied
by a prospectus supplement relating to the offered securities.
We
are an emerging growth company and a smaller reporting company as defined under Federal securities laws and, as such, may elect to comply
with certain reduced public company reporting requirements for future filings.
Our common stock is
listed on the Nasdaq Capital Market under the symbol “VIRI.” On March 17, 2022, the last reported sale price of our
common stock on the Nasdaq Capital Market was $5.53 per share. We will provide information in any applicable prospectus supplement
regarding any listing of securities other than shares of our common stock on any securities exchange.
These securities may be sold
directly by us, through dealers or agents designated from time to time, to or through underwriters, directly to purchasers or through
a combination of these methods. See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution
for any particular offering of our securities in a prospectus supplement. If any agents, underwriters or dealers are involved in the sale
of any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements
with them in a prospectus supplement. The net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms
of the offering of such securities.
An investment in our securities
involves a high degree of risk. See the sections entitled “Risk Factors” on page 5 of this prospectus and any
similar section contained or incorporated by reference in the applicable prospectus supplement concerning factors you should consider
before investing in our securities.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy
or adequacy of the disclosures of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is      ,
2022
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings up to a total dollar
amount of $150,000,000, of common stock and preferred stock, depositary shares representing preferred stock and various series of debt
securities, rights, warrants to purchase any of such securities, and/or units, either individually or in combination with other securities
as described in this prospectus. Each time we sell any type or series of securities under this prospectus, we will provide a prospectus
supplement that will contain more specific information about the terms of that offering. We may also authorize one or more free writing
prospectuses to be provided to you that may contain material information relating to these offerings. We may also add, update or change
in a prospectus supplement or free writing prospectus any of the information contained in this prospectus or in documents we have incorporated
by reference into this prospectus. This prospectus, together with any applicable prospectus supplement or free writing prospectus and
the documents incorporated by reference into this prospectus, include all material information relating to this offering. You should carefully
read both this prospectus and any applicable prospectus supplement and any related free writing prospectus together with the additional
information described under “Where You Can Find More Information” before buying securities in this offering.
You
should rely only on the information contained in, or incorporated by reference into, this prospectus and the applicable prospectus supplement,
along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific
offering. We have not authorized anyone to provide you with different or additional information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not making an offer to sell or seeking an offer to buy securities under
this prospectus or any applicable prospectus supplement or free writing prospectus in any jurisdiction where the offer or sale is not
permitted.
The information appearing
in this prospectus, any applicable prospectus supplement and any related free writing prospectus is accurate only as of the date on the
front of the document and any information we have incorporated by reference is accurate only as of the date of the document incorporated
by reference, regardless of the time of delivery of this prospectus, the applicable prospectus supplement or any related free writing
prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those
dates.
This prospectus and any accompanying
prospectus supplement or other offering materials do not contain all of the information included in the registration statement as permitted
by the rules and regulations of the SEC. We are subject to the reporting requirements of the Securities Exchange Act of 1934 (the
“Exchange Act”), and, therefore, file reports and other information with the SEC. Statements contained in this prospectus
and any accompanying prospectus supplement, any free writing prospectus or other offering materials about the provisions or contents of
any agreement or other document are only summaries. If SEC rules require that any agreement or document be filed as an exhibit to
the registration statement, you should refer to that agreement or document for its complete contents. Copies of some of the documents
referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which
this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled “Where You
Can Find More Information.”
This prospectus incorporates
by reference, and the applicable prospectus supplement or any free writing prospectus may contain and incorporate by reference, certain
market and industry data obtained from independent market research, industry publications and surveys, governmental agencies and publicly
available information. Industry surveys, publications and forecasts generally state that the information contained therein has been obtained
from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We believe the
data from such third-party sources to be reliable. However, we have not independently verified any of such data and cannot guarantee its
accuracy or completeness. Similarly, internal market research and industry forecasts, which we believe to be reliable based upon our management’s
knowledge of the market and the industry, have not been verified by any independent sources. While we are not aware of any misstatements
regarding the market or industry data presented herein, our estimates involve risks and uncertainties and are subject to change based
on various factors and evolution over time.
We may sell securities through
underwriters or dealers, through agents, directly to purchasers or through any combination of these methods. We and our agents reserve
the sole right to accept or reject in whole or in part any proposed purchase of securities. The prospectus supplement, which we will prepare
and file with the SEC each time we offer securities, will set forth the names of any underwriters, agents or others involved in the sale
of securities, and any applicable fee, commission or discount arrangements with them. See “Plan of Distribution.”
In this prospectus, unless
otherwise indicated, “our company,” “Virios,” “Virios Therapeutics,” “we,” “us”
or “our” refer to Virios Therapeutics, Inc., a Delaware corporation. When we refer to “you,” we mean the
potential holders of the applicable class or series of securities.
We own or have rights to
use a number of registered and common law trademarks, service marks and/or trade names in connection with our business in the United States
and/or in certain foreign jurisdictions. Solely for convenience, the trademarks, service marks, logos and trade names referred to in this
prospectus, any prospectus supplement and any free writing prospectuses may be referred to without the ® and ™ symbols,
but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our
rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This prospectus, any prospectus supplement
and any free writing prospectus may contain additional trademarks, service marks and trade names of others, which are the property of
their respective owners. All trademarks, service marks and trade names appearing in this prospectus, any prospectus supplement and any
free writing prospectus are, to our knowledge, the property of their respective owners. We do not intend our use or display of other companies’
trademarks, service marks, copyrights or trade names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
PROSPECTUS SUMMARY
This prospectus summary
highlights certain information about our company and other information contained elsewhere in this prospectus or in documents incorporated
by reference. This summary does not contain all of the information that you should consider before making an investment decision. You
should carefully read the entire prospectus, any prospectus supplement, including the section entitled “Risk Factors” and
the documents incorporated by reference into this prospectus, before making an investment decision.
Our Company
Overview
We are a development-stage
biotechnology company focused on advancing novel antiviral therapies to treat diseases associated with a viral triggered abnormal immune
response, such as fibromyalgia (“FM”). Overactive immune response related to activation of tissue resident herpes virus has
been postulated to be a potential root cause of chronic illnesses such as FM, irritable bowel disease (“IBS”), chronic fatigue
syndrome and other functional somatic syndromes, all of which are characterized by a waxing and waning manifestation of disease symptoms.
While not completely understood, there is general agreement in the medical community that activation of the herpes virus is triggered
by some form of environmental and/or health stressor. Our lead product candidate, which we have named IMC-1, is a novel, proprietary,
fixed dose tablet combination of famciclovir and celecoxib. IMC-1 represents a novel combination antiviral therapy designed to synergistically
suppress herpes virus activation and replication, with the end goal of reducing viral mediated disease burden.
IMC-1 combines two specific
mechanisms of action purposely designed to inhibit herpes virus activation and replication, thereby keeping the herpes virus in a latent
(dormant) state or “down-regulating” the virus from a lytic (active) state back to latency. The famciclovir component of IMC-1
inhibits viral DNA replication. The celecoxib component of IMC-1 inhibits cyclooxegenase-2 and to a lesser degree cyclooxegenase-1, enzymes
used by the herpes virus to amplify or accelerate its own replication. We are unaware of any other antivirals in development for the treatment
of FM. We believe this novel approach was a germane consideration in the U.S. Food and Drug Administration designating IMC-1 for fast-track
review status for the treatment of FM. IMC-1 has also been granted a synergy patent based on the fact that neither of the individual components
has proven effective in the management of FM, yet the combination therapy generated a result that is greater than the sum of its parts.
IMC-1 is the focus of an ongoing Phase 2b FM study with top line results expected in the third quarter of 2022.
We
believe that the unique fixed dose, synergistic antiviral mechanism of our approach represents a completely new approach to treating FM
and potentially other somatic syndrome disorders, including IBS. Furthermore, there is increasing recognition in the scientific community
of the potential role of activated viruses, triggering a wide range of morbidities, including FM, IBS, fatigue related disorders
and potentially dementia and even long Covid (“Long COVID”) symptoms. The Company is providing the Bateman Horne Center
with an unrestricted grant for an investigator-sponsored study to explore the therapeutic potential of combination antiviral therapy with
Virios’ second development candidate, IMC-2, a combination of valacyclovir and celecoxib. The study will evaluate changes in
common Long COVID symptoms such as fatigue, sleep, attention, pain, autonomic function and anxiety and commence recruiting in the second
quarter of 2022, with data expected in the first half of 2023.
Emerging Growth Company
We are an “emerging
growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We could be an emerging growth company
until December 31, 2026, although circumstances could cause us to lose that status earlier, including if the market value of our
common stock held by non-affiliates exceeds $700.0 million as of the prior June 30, if we have total annual gross revenue of approximately
$1.1 billion or more during any fiscal year, or if we issue more than $1.0 billion in non-convertible debt during any three-year period.
For as long as we remain
an “emerging growth company,” we may take advantage of certain exemptions from various reporting requirements that are applicable
to public companies that are not “emerging growth companies,” including:
• not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act relating to the effectiveness
of our internal control over financial reporting;
• reduced
disclosure obligations regarding executive compensation and financial statements in our periodic reports, proxy statements and registration
statements; and
• exemptions
from the requirements of holding a nonbinding advisory vote to approve executive compensation and stockholder approval of any golden parachute
payments not previously approved.
We have elected to take advantage
of these reporting exemptions and, therefore, the information that we provide stockholders may be different than what you might obtain
from other public companies in which you hold equity interests.
Under the JOBS Act, emerging
growth companies can delay adopting new or revised accounting standards issued subsequent to the enactment of the JOBS Act until such
time as those standards apply to private companies. We have elected to use this extended transition period for complying with new or revised
accounting standards that have different effective dates for public and private companies until the earlier of the date that is (i) no
longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided by the
JOBS Act. As a result, our financial statements contained in, or incorporated by reference into, this prospectus, any prospectus supplement
and any free writing prospectus may not be comparable to companies that comply with the new or revised accounting pronouncements as of
public company effective dates.
Corporate Information
We were incorporated under
the laws of the State of Delaware on December 16, 2020 through a corporate conversion just prior to our initial public offering (“IPO”).
We were originally formed on February 28, 2012 as a limited liability company (“LLC”) under the laws of the State of
Alabama as Innovative Med Concepts, LLC. On July 23, 2020, the Company changed its name from Innovative Med Concepts, LLC to Virios
Therapeutics, LLC. Our principal executive offices are located at 44 Milton Avenue, Alpharetta, Georgia and our telephone number
is (866) 620-8655. Our website address is www.virios.com. The information contained on, or that can be accessed through, our website is
not incorporated by reference into this prospectus. We have included our web address as an inactive textual reference only. We make our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to these reports
available free of charge on our website as soon as reasonably practicable after we file these reports with the SEC.
The Securities We May Offer
We may offer shares of our
common stock and preferred stock, depositary shares representing a fractional interest in a share of preferred stock, various series of
debt securities, rights to purchase common stock or other securities, warrants to purchase any of such securities, and/or units either
individually or in combination with other securities, with a total value of up to $150,000,000 from time to time under this prospectus,
together with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined at
the time of any offering. We may also offer common stock, preferred stock and/or debt securities upon the exercise of the rights or warrants.
This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities
under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms
of the securities.
RISK FACTORS
Investing in our securities
involves risk. The prospectus supplement applicable to a particular offering of securities will contain a discussion of the risks applicable
to an investment in Virios Therapeutics and to the particular types of securities that we are offering under that prospectus supplement.
Before making an investment decision, you should carefully consider the risks described under “Risk Factors” in the applicable
prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement
or appearing or incorporated by reference in this prospectus. You should also consider the risks described in our most recent Annual Report
on Form 10-K for the year ended December 31, 2021, as amended from time to time and in our Quarterly Reports on Form 10-Q
and other documents we file with the SEC, in light of your particular investment objectives and financial circumstances. The risks and
uncertainties we have described in such documents are not the only risks that we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. Our business, financial condition or results of operations
could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks,
and you may lose all or part of your investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying
prospectus supplement and the documents we incorporate by reference in this prospectus and any accompanying prospectus supplement contains
forward-looking statements. All statements other than statements of historical facts contained in this prospectus, including statements
regarding our future results of operations and financial position, business strategy, prospective products, product approvals, research
and development costs, timing and likelihood of success, plans and objectives of management for future operations and future results of
anticipated products, are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important
factors that may cause our actual results, performance or achievements to be materially different from any future results, performance
or achievements expressed or implied by the forward-looking statements.
Forward-looking statements
may be identified by the use of the words “aim,” “anticipate,” “assume,” “believe,” “contemplate,”
“continue,” “could,” “design,” “due,” “estimate,” “expect,” “goal,”
“intend,” “may,” “objective,” “plan,” “predict,” “positioned,”
“potential,” “seek,” “should,” “target,” “will,” “would” and other
similar words and phrases, including the negatives of these terms, or other variations of these terms, that denote future events. The
forward-looking statements in this prospectus and any accompanying prospectus supplement and the documents we incorporate by reference
in this prospectus and any accompanying prospectus supplement are only predictions. We have based these forward-looking statements largely
on our current expectations and projections about future events and financial trends that we believe may affect our business, financial
condition and results of operations. These forward-looking statements speak only as of the date of this prospectus and are subject to
a number of risks, uncertainties and assumptions described under the sections in this prospectus titled “Risk Factors” and
elsewhere in this prospectus. Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot
be predicted or quantified and some of which are beyond our control, you should not rely on these forward-looking statements as predictions
of future events. The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results
could differ materially from those projected in the forward-looking statements. Moreover, we operate in an evolving environment. New risk
factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties.
Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained herein, whether
as a result of any new information, future events, changed circumstances or otherwise. Although we believe that we have a reasonable basis
for each forward-looking statement contained in this this prospectus and any accompanying prospectus supplement, we caution you that these
statements are based on a combination of facts and factors currently known by us and our expectations of the future, about which we cannot
be certain.
These
forward-looking statements include, though are not limited to, statements about future results of operations, financial position, research
and development costs, regulatory approvals, the impact of SARS-CoV-2 (the virus that has caused the COVID-19 pandemic), and capital requirements
and our needs for additional financing.
We caution you that the aforementioned
statements may not contain all of the forward-looking statements made in this prospectus and any accompanying prospectus supplement.
You should read this prospectus
and any accompanying prospectus supplement and the documents that we reference in this prospectus and any accompanying prospectus supplement
and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and with the understanding that
our actual future results may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary
statements.
DIVIDEND POLICY
We have never declared or
paid any cash dividends on our capital stock. We intend to retain future earnings, if any, to finance the operation and expansion of our
business and do not anticipate paying any cash dividends in the foreseeable future. Investors should not purchase our common stock with
the expectation of receiving cash dividends. Any future determination related to our dividend policy will be made at the discretion of
our board of directors after considering our financial condition, results of operations, capital requirements, business prospects and
other factors our board of directors deems relevant, and subject to the restrictions contained in any future financing instruments.
USE OF PROCEEDS
Except as otherwise provided
in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered by this prospectus
for general corporate purposes, which may include, but are not limited to, working capital, capital expenditures, research and development,
clinical trial expenditures, acquisitions of additional companies or technologies, and investments. We may temporarily invest the net
proceeds in short-term, investment-grade, interest-bearing securities until they are used for their stated purpose. We have not determined
the amount of net proceeds to be used specifically for these purposes. As a result, management will retain broad discretion over the allocation
of net proceeds.
DESCRIPTION OF CAPITAL STOCK
The following is a description
of our common stock and preferred stock, certain provisions of our certificate of incorporation and bylaws and certain provisions of Delaware
law, and is a summary and is qualified in its entirety by reference to our certificate of incorporation, bylaws and the Delaware General
Corporation Law (the “DGCL”). The common stock is the only security of our company registered pursuant to Section 12
of the Exchange Act. If we so indicate in a prospectus supplement, the terms of any security offered under that prospectus supplement
may differ from the terms we describe below.
Our amended and restated
certificate of incorporation, or our certificate of incorporation, provides for one class of common stock. In addition, our certificate
of incorporation authorizes shares of undesignated preferred stock, the rights, preferences and privileges of which may be designated
from time to time by our board of directors.
Our authorized capital stock
consists of 45,000,000 shares, all with a par value of $0.0001 per share, of which:
| • | 43,000,000 shares are designated as common stock; and |
| • | 2,000,000 shares are designated as preferred stock. |
As of February 28, 2022,
we had outstanding 8,330,390 shares of common stock, held by 165 stockholders of record. Further, as of February 28, 2022, (i) there
were warrants outstanding for the purchase of 172,500 shares of common stock with an exercise price of $12.50 per share, of which all
are vested and exercisable; (ii) 749,147 shares of our common stock were issuable upon exercise of outstanding options, at a weighted
average exercise price of $9.03 per share, of which 572,734 shares were vested as of such date; (iii) 292,500 shares of our common
stock were issuable upon the exercise of outstanding non-qualified options for which upon exercise will be unregistered, at an exercise
price of $10.00 per share, of which all were vested and exercisable as of such date; and (iv) 63,353 shares of our common stock were
reserved for future issuance under our 2020 Equity Incentive Plan.
Common Stock
Voting Rights
Each holder of our common
stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, and do not have cumulative voting
rights. Elections of directors by holders of our common stock is determined by a plurality of the votes cast by the stockholders entitled
to vote in the election. Subject to the supermajority votes for some matters, other matters are decided by the affirmative vote of our
stockholders having a majority in voting power of the votes cast by the stockholders present or represented and voting on such matter.
Dividends
Holders of common stock are entitled to receive
proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend rights of any series
of preferred stock that we may designate and issue in the future.
Liquidation
In the event of our liquidation,
dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted
to the holders of any then-outstanding shares of preferred stock.
Rights
and Preferences
Holders of common stock have
no preemptive, conversion or subscription rights and there are no redemption or sinking fund provisions applicable to the common stock.
The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of
the holders of shares of any series of preferred stock that we may designate in the future.
Anti-Takeover Effect of Delaware Law and Our Certain Charter and
Bylaw Provisions
Some provisions of our certificate
of incorporation and bylaws make the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition
of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions
could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest
or in our best interests, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized
below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased
protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure
us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of
their terms.
Authorized but Unissued
Shares
Our authorized but unissued
shares of common stock and preferred stock are available for future issuance without stockholder approval. These additional shares may
be utilized for a variety of corporate purposes, including future public offerings to raise additional capital and corporate acquisitions.
The existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt
to obtain control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise.
Stockholder Meetings
Any action to be taken by
our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by written consent.
Requirements for Advance
Notification of Stockholder Nominations and Proposals
Stockholders seeking to present
proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide
advance notice in writing, and also specify requirements as to the form and content of a stockholder’s notice.
Anti-Takeover Effects of Provisions of Delaware Law
We are subject to Section 203
of the DGCL, which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period
of three years after the date that such stockholder became an interested stockholder unless the business combination is, or the transaction
in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. In
general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s
affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status
did own, 15% or more of the outstanding voting stock of the corporation. In general, a “business combination” includes a merger,
asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision
may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors.
Exclusive Forum Selection
Our certificate of incorporation
provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or,
if the Court of Chancery of the State of Delaware does not have jurisdiction, the federal district court for the District of Delaware)
shall, to the fullest extent permitted by law, be the sole and exclusive forum for the following claims or causes of action under the
Delaware statutory or common law: (A) any derivative claim or cause of action brought on behalf of the Company; (B) any claim
or cause of action for breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company, to
the Company or the Company’s stockholders; (C) any claim or cause of action against the Company or any current or former director,
officer or other employee of the Company, arising out of or pursuant to any provision of the DGCL, the certificate of incorporation or
the bylaws of the Company (as each may be amended from time to time); (D) any claim or cause of action seeking to interpret, apply,
enforce or determine the validity the certificate of incorporation or the bylaws of the Company (as each may be amended from time to time,
including any right, obligation, or remedy thereunder); (E) any claim or cause of action as to which the DGCL confers jurisdiction
on the Court of Chancery of the State of Delaware; and (F) any claim or cause of action against the Company or any current or former
director, officer or other employee of the Company, governed by the internal-affairs doctrine, in all cases to the fullest extent permitted
by law and subject to the court having personal jurisdiction over the indispensable parties named as defendants. This exclusive forum
provision would not apply to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act or any other
claim for which the federal courts have exclusive jurisdiction. To the extent that any such claims may be based upon federal law claims,
Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created
by the Exchange Act or the rules and regulations thereunder. Furthermore, Section 22 of the Securities Act creates concurrent
jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the
rules and regulations thereunder. Although our restated certificate contains the choice of forum provision described above, it is
possible that a court could rule that such a provision is inapplicable for a particular claim or action or that such provision is
unenforceable.
Advance Notice Requirements
Our bylaws establish an advance
notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations
of persons for election to the board of directors. Stockholders at an annual meeting will only be able to consider proposals or nominations
specified in the notice of meeting or brought before the meeting by or at the direction of the board of directors or by a stockholder
who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given our Secretary
timely written notice, in proper form, of the stockholder’s intention to bring that business before the meeting. Although our bylaws
do not give the board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other
business to be conducted at a special or annual meeting, our bylaws may have the effect of precluding the conduct of certain business
at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.
Transfer Agent and Registrar
Broadridge Corporate Issuer
Solutions, Inc. is the transfer agent and registrar for our common stock.
Preferred Stock
Under the terms of our certificate
of incorporation, our board of directors have the authority, without further action by our stockholders, to issue up to 2,000,000 shares
of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to fix
the rights, preferences and privileges of the shares of each wholly unissued series and any qualifications, limitations or restrictions
thereon, and to increase or decrease the number of shares of any such series, but not below the number of shares of such series then outstanding.
The powers, preferences and relative, participating, optional and other special rights of each series of preferred stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
Our board of directors may
authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights
of the holders of our common stock. The purpose of authorizing our board of directors to issue preferred stock and determine its rights
and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect
of delaying, deferring or preventing a change in control of Virios Therapeutics and may adversely affect the market price of our common
stock and the voting and other rights of the holders of our common stock. It is not possible to state the actual effect of the issuance
of any shares of preferred stock on the rights of holders of common stock until the board of directors determines the specific rights
attached to that preferred stock.
See “— Anti-Takeover
Effect of Certain Charter and Bylaw Provisions” and “— Anti-Takeover Effects of Provisions of Delaware Law” above
for a discussion of certain provisions of our certificate of incorporation and bylaws and the DGCL that may affect the terms of preferred
stock.
DESCRIPTION OF DEPOSITARY SHARES
We may offer depositary shares,
which will be evidenced by depositary receipts, representing fractional interests in shares of preferred stock of any series. In connection
with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which
will be named in the applicable prospectus supplement. The following briefly summarizes the material provisions of the deposit agreement
and of the depositary shares and depositary receipts, other than pricing and related terms disclosed for a particular issuance in an accompanying
prospectus supplement. This description is not complete and is subject to, and qualified in its entirety by reference to, all provisions
of the deposit agreement, depositary shares and depositary receipts. You should read the particular terms of any depositary shares and
any depositary receipts that we offer and any deposit agreement relating to a particular series of preferred stock described in more detail
in a prospectus supplement. The prospectus supplement will also state whether any of the generalized provisions summarized below do not
apply to the depositary shares or depositary receipts being offered.
General
We may, at our option, elect
to offer fractional shares of preferred stock, rather than full shares of preferred stock. In this event, we will issue receipts for depositary
shares, each of which will represent a fraction of a share of a particular series of preferred stock. For a description of our preferred
stock, see “Description of Capital Stock — Preferred Stock.”
The shares of any series
of preferred stock represented by depositary shares will be deposited under a deposit agreement between us and the depositary we select.
Each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including any dividend,
voting, redemption, conversion and liquidation rights described in the particular prospectus supplement, in proportion to the applicable
fraction of a share of preferred stock represented by such depositary share.
The depositary shares will
be evidenced by depositary receipts issued pursuant to the deposit agreement. Holders of depositary receipts agree to be bound by the
deposit agreement, which may require holders to take certain actions such as filing proof of residence and paying certain charges. Depositary
receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the
applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary
will distribute all cash dividends or other cash distributions, if any, received in respect of the deposited preferred stock to the record
holders of depositary shares relating to the preferred stock in proportion to the number of depositary shares owned by such holders on
the relevant record date.
In the case of a distribution
other than in cash, the preferred stock depositary will distribute any property received by it other than cash to the record holders of
depositary shares entitled to receive it in proportion to the number of depositary shares owned by such holder. If the preferred stock
depositary determines that it is not feasible to make such a distribution, it may, with our approval, sell the property and distribute
the net proceeds from the sale to the holders of the depositary shares.
The amounts distributed in
any such distribution, whether in cash or otherwise, will be reduced by any amount required to be withheld by us or the preferred stock
depositary on account of taxes.
Withdrawal of Preferred Stock
Unless otherwise indicated
in the applicable prospectus supplement and unless the related depositary shares have been called for redemption, when a holder surrenders
depositary receipts at the office of the preferred stock depositary maintained for that purpose, and pays any necessary taxes, charges
or other fees, the holder will be entitled to receive the number of whole shares of the related series of preferred stock, and any money
or other property, if any, represented by the holder’s depositary shares. Once a holder exchanges depositary shares for whole shares
of preferred stock, that holder generally cannot “re-deposit” these shares of preferred stock with the preferred stock depositary,
or exchange them for depositary shares. If a holder delivers depositary receipts that represent a number of depositary shares other than
a whole number of shares of preferred stock for redemption or exchange, the preferred stock depositary will issue a new depositary receipt
to the holder that evidences the remainder of depositary shares at the same time that the preferred stock is withdrawn.
Redemption, Conversion and Exchange of Preferred Stock
If a series of preferred
stock represented by depositary shares is to be redeemed, the depositary shares will be redeemed from the proceeds received by the preferred
stock depositary resulting from the redemption, in whole or in part, of that series of preferred stock. The depositary shares will be
redeemed by the preferred stock depositary at a price per depositary share equal to the applicable fraction of the redemption price per
share payable in respect of the shares of preferred stock redeemed.
Whenever we redeem shares
of preferred stock held by the preferred stock depositary, the preferred stock depositary will redeem, as of the same date, the number
of depositary shares representing shares of preferred stock redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by the preferred stock depositary by lot or ratably or by any other equitable method,
in each case as we may determine.
If a series of preferred
stock represented by depositary shares is to be converted or exchanged, the holder of depositary receipts representing the shares of preferred
stock being converted or exchanged will have the right or obligation to convert or exchange the depositary shares evidenced by the depositary
receipts.
After the redemption, conversion
or exchange date, the depositary shares called for redemption, conversion or exchange will no longer be outstanding. When the depositary
shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property
payable upon redemption, conversion or exchange.
Voting Deposited Preferred Stock
Upon receipt of notice of
any meeting at which the holders of any series of deposited preferred stock are entitled to vote, the preferred stock depositary will
mail the information contained in the notice of meeting to the record holders of the depositary receipts evidencing the depositary shares
relating to that series of preferred stock. Each record holder of the depositary receipts on the record date will be entitled to instruct
the preferred stock depositary to vote the amount of the preferred stock represented by the holder’s depositary shares. The preferred
stock depositary will try, if practical, to vote the amount of such series of preferred stock represented by such depositary shares in
accordance with such instructions.
We will agree to take all
reasonable actions that the preferred stock depositary determines are necessary to enable the preferred stock depositary to vote as instructed.
The preferred stock depositary will abstain from voting shares of any series of preferred stock held by it for which it does not receive
specific instructions from the holders of depositary shares representing those preferred shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt
evidencing the depositary shares and any provision of the deposit agreement may at any time be amended by agreement between us and the
preferred stock depositary. However, any amendment that materially and adversely alters any existing right of the holders of depositary
receipts will not be effective unless the amendment has been approved by the holders of depositary receipts representing at least a majority
of the depositary shares then outstanding. Additionally, in the case of amendments relating to or affecting rights to receive dividends
or distributions or voting or redemption rights, approval is also required by the holders of depositary receipts representing not less
than a specified percentage or all of the depositary shares of such series or class then outstanding, as provided in the applicable prospectus
supplement. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective will be deemed, by continuing
to hold the depositary receipt, to consent and agree to the amendment and to be bound by the deposit agreement, as amended.
We may direct the preferred
stock depositary to terminate the deposit agreement at any time by mailing notice of termination to the record holders of the depositary
receipts then outstanding at least 30 days prior to the date fixed for termination. Upon termination, the preferred stock depositary will
deliver to each holder of depositary receipts, upon surrender of those receipts, such number of whole shares of the series of preferred
stock represented by the depositary shares together with cash in lieu of any fractional shares, to the extent we have deposited cash for
payment in lieu of fractional shares with the preferred stock depositary. In addition, the deposit agreement will automatically terminate
if:
| • | all of the outstanding shares of the preferred stock deposited with the preferred stock depositary have
been withdrawn, redeemed, converted or exchanged; or |
| • | there has been a final distribution in respect of the deposited preferred stock in connection with our
liquidation, dissolution or winding up and the distribution has been made to the holders of the related depositary shares evidenced by
depositary receipts. |
Charges of Preferred Stock Depositary; Taxes and Other Governmental
Charges
We will pay all transfer
and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We also will pay charges of
the preferred stock depositary in connection with the initial deposit of preferred stock and any redemption of preferred stock. Holders
of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the deposit agreement to be
for their accounts.
Prospective purchasers of
depositary shares should be aware that special tax, accounting and other issues may be applicable to instruments such as depositary shares.
Resignation and Removal of Depositary
The preferred stock depositary
may resign at any time by delivering to us notice of its intent to do so, and we may at any time remove the preferred stock depositary,
any such resignation or removal to take effect upon the appointment of a successor preferred stock depositary meeting the requirements
specified in the deposit agreement and its acceptance of such appointment.
Miscellaneous
The preferred stock depositary
will forward all reports and communications from us which are delivered to the preferred stock depositary and which we are required to
furnish to the holders of the deposited preferred stock.
Neither we nor the preferred
stock depositary will be liable if we are or the preferred stock depositary is prevented or delayed by law or any circumstances beyond
our or its control in performing our or its obligations under the deposit agreement. Our obligations and the obligations of the preferred
stock depositary under the deposit agreement will be limited to performance in good faith of the duties under the deposit agreement, and
we and the preferred stock depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares,
depositary receipts or shares of preferred stock unless satisfactory indemnity is furnished. We and the preferred stock depositary may
rely upon written advice of counsel or accountants, or upon information provided by holders of depositary receipts or other persons believed
to be competent and on documents believed to be genuine.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities
from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the
terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the
particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt
securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever
we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt
securities.
We will issue the debt securities
under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”). We have filed the form of indenture as an exhibit to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt
securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated
by reference from reports that we file with the SEC.
The following summary of
material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the
provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements
and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete
indenture that contains the terms of the debt securities.
General
The indenture does not limit
the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may
authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale
of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other
provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions
involving us.
We may issue the debt securities
issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with OID for U.S. federal
income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income
tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe in the applicable
prospectus supplement the terms of the series of debt securities being offered, including:
| • | the title of the series of debt securities; |
| • | any limit upon the aggregate principal amount that may be issued; |
| • | the maturity date or dates; |
| • | the form of the debt securities of the series; |
| • | the applicability of any guarantees; |
| • | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| • | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination
thereof, and the terms of any subordination; |
| • | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt
securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| • | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and
the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or
the method for determining such dates; |
| • | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| • | if applicable, the date or dates after which, or the period or periods during which, and the price or
prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions
and the terms of those redemption provisions; |
| • | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of
debt securities and the currency or currency unit in which the debt securities are payable; |
| • | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; |
| • | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that
series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection
with the marketing of debt securities of that series; |
| • | whether the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in
part for other individual securities; and the depositary for such global security or securities; |
| • | if applicable, the provisions relating to conversion or exchange of any debt securities of the series
and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion
or exchange; |
| • | if other than the full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
| • | additions to or changes in the covenants applicable to the particular debt securities being issued, including,
among others, the consolidation, merger or sale covenant; |
| • | additions to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to
be due and payable; |
| • | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
| • | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| • | additions to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| • | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the
equivalent amount in U.S. dollars; |
| • | whether interest will be payable in cash or additional debt securities at our or the holders’ option
and the terms and conditions upon which the election may be made; |
| • | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium,
if any, and principal amounts of the debt securities of the series to any holder that is not a “United States person” for
federal tax purposes; |
| • | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
| • | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable
laws or regulations. |
Conversion or Exchange Rights
We will set forth in the
applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common
stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common
stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an
entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under
the indenture or the debt securities, as appropriate.
Events of Default Under the Indenture
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture
with respect to any series of debt securities that we may issue:
| • | if we fail to pay any installment of interest on any series of debt securities, as and when the same shall
become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest
for this purpose; |
| • | if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt
securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal
or premium, if any; |
| • | if we fail to observe or perform any other covenant or agreement contained in the debt securities or the
indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after
we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder,
from the trustee or holders of a majority of the aggregate principal amount of the outstanding debt securities of the applicable series;
and |
| • | if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with
respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of a majority of the aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued
interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to
us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without
any notice or other action on the part of the trustee or any holder.
The holders of a majority
in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the
indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise
any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
| • | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| • | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve
it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities
of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other
remedies only if:
| • | the holder has given written notice to the trustee of a continuing event of default with respect to that
series; |
| • | the holders of a majority aggregate principal amount of the outstanding debt securities of that series
have made written request; |
| • | such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred by the trustee in compliance with the request; and |
| • | the trustee does not institute the proceeding, and does not receive from the holders of a majority in
aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice,
request and offer. |
These limitations do not
apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest
on, the debt securities.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change
an indenture without the consent of any holders with respect to specific matters:
| • | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
| • | to comply with the provisions described above under “Description of Debt Securities — Consolidation,
Merger or Sale;” |
| • | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| • | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions
or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender
any right or power conferred upon us in the indenture; |
| • | to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
| • | to make any change that does not adversely affect the interests of any holder of debt securities of any
series in any material respect; |
| • | to provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities — General” to establish the form of any certifications
required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| • | to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
or |
| • | to comply with any requirements of the SEC in connection with the qualification of any indenture under
the Trust Indenture Act. |
In addition, under the indenture,
the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we
provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following
changes only with the consent of each holder of any outstanding debt securities affected:
| • | extending the fixed maturity of any debt securities of any series; |
| • | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing
any premium payable upon the redemption of any series of any debt securities; or |
| • | reducing the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each indenture provides that
we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
| • | register the transfer or exchange of debt securities of the series; |
| • | replace stolen, lost or mutilated debt securities of the series; |
| • | pay principal of and premium and interest on any debt securities of the series; |
| • | maintain paying agencies; |
| • | hold monies for payment in trust; |
| • | recover excess money held by the trustee; |
| • | compensate and indemnify the trustee; and |
| • | appoint any successor trustee. |
In order to exercise our
rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any
premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company
(“DTC”), or another depositary named by us and identified in the applicable prospectus supplement with respect to that series.
To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry
securities will be set forth in the applicable prospectus supplement.
At the option of the holder,
subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the
indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon
duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange,
we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental
charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve
a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
If we elect to redeem the
debt securities of any series, we will not be required to:
| • | issue, register the transfer of, or exchange any debt securities of that series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the mailing; or |
| • | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part,
except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during
the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a
prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of
and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to
the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying
agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the
end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt
securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that
the Trust Indenture Act is applicable.
DESCRIPTION OF RIGHTS
This section describes the
general terms of the rights to purchase common stock or other securities that we may offer to stockholders using this prospectus. Further
terms of the rights will be stated in the applicable prospectus supplement (or applicable free writing prospectus). The complete terms
of the rights will be contained in the rights agreements we enter into with rights agents. These documents will be included or incorporated
by reference as exhibits to the registration statement of which this prospectus is a part. You should read the rights agreements and any
related documents. You also should read the prospectus supplement, which will contain additional information and which may update or change
some of the information below. The following description and any description of the rights in a prospectus supplement (or applicable free
writing prospectus) may not be complete and is subject to and qualified in its entirety by reference to the terms of any agreement relating
to the rights.
Rights may be issued independently
or together with any other security and may or may not be transferable. As part of any rights offering, we may enter into a standby underwriting
or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such rights
offering. If we issue rights, each series of rights will be issued under a separate rights agreement to be entered into between us and
a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. Further terms of the rights will
be stated in the applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to
any holders of rights certificates or beneficial owners of rights. The rights agreements and rights certificates will be filed with the
SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a filing incorporated by reference
in the registration statement. See “Where You Can Find Additional Information” for information on how to obtain copies of
the rights agreements and rights certificates.
The prospectus supplement
relating to any rights we offer will describe the specific terms of the offering and the rights, including the record date for stockholders
entitled to the rights distribution, the number of rights issued and the number of shares of common stock that may be purchased upon exercise
of the rights, the exercise price of the rights, the date on which the rights will become effective and the date on which the rights will
expire, and any applicable U.S. federal income tax considerations.
In general, a right entitles
the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights
are normally issued to stockholders as of a specific record date, may be exercised only for a limited period of time and become void following
the expiration of such period. Prior to exercising their rights, holders of rights will not have any of the rights of holders of the securities
purchasable upon subscription, including, in the case of rights to purchase common stock or preferred stock, the right to receive dividends,
if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights.
If we determine to issue
rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
| • | the record date for stockholders entitled to receive the rights; |
| • | the number of shares of common stock or other securities that may be purchased upon exercise of each right; |
| • | the exercise price of the rights; |
| • | the terms for changes to or adjustments in the exercise price, if any; |
| • | whether the rights are transferable; |
| • | the period during which the rights may be exercised and when they will expire; |
| • | the steps required to exercise the rights; |
| • | whether the rights include “oversubscription rights” so that the holder may purchase more
securities if other holders do not purchase their full allotments; |
| • | whether we intend to sell the shares of common stock or other securities that are not purchased in the
rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement; |
| • | our ability to withdraw or terminate the rights offering; |
| • | any material United States federal income tax consequences; and |
| • | other material terms, including terms relating to transferability, exchange, exercise or amendment of
the rights. |
If fewer than all of the
rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders,
to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as
described in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become
void.
DESCRIPTION OF WARRANTS
The following description,
together with the additional information we may include in any applicable prospectus supplement and free writing prospectus, summarizes
the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common
stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently or in combination
with common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we have summarized below will
apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants
in more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this
prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular
series of warrants may specify different or additional terms.
We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the
SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that describes the terms of the particular
series of warrants we are offering and any supplemental agreements, before the issuance of such warrants. The following summaries of material
terms and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of
warrant and/or warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series
of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement related to the particular
series of warrants that we may offer under this prospectus, as well as any related free writing prospectus, and the complete form of warrant
and/or warrant agreement and warrant certificates, as applicable, and any supplemental agreements that contain the terms of the warrants.
General
We will describe in the applicable
prospectus supplement the terms of the series of warrants being offered, including:
| • | the title of such securities; |
| • | the offering price or prices and aggregate number of warrants offered; |
| • | the currency or currencies for which the warrants may be purchased; |
| • | if applicable, the designation and terms of the securities with which the warrants are issued and the
number of warrants issued with each such security or each principal amount of such security; |
| • | if applicable, the date on and after which the warrants and the related securities will be separately
transferable; |
| • | if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
| • | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable
upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased
upon such exercise; |
| • | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock
or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which,
these shares may be purchased upon such exercise; |
| • | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements
and the warrants; |
| • | the terms of any rights to redeem or call the warrants; |
| • | the terms of any rights to force the exercise of the warrants; |
| • | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon
exercise of the warrants; |
| • | the dates on which the right to exercise the warrants will commence and expire; |
| • | the manner in which the warrant agreements and warrants may be modified; |
| • | a discussion of any material or special U.S. federal income tax consequences of holding or exercising
the warrants; |
| • | the terms of the securities issuable upon exercise of the warrants; and |
| • | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
| • | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or
premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
| • | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants
offered. Unless we otherwise specify in the applicable prospectus supplement, the warrants may be exercised at any time up to the specified
time on the expiration date that we set forth in the applicable prospectus supplement relating to the warrants offered thereby. After
the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and
the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent,
if any, or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, issue and deliver the
securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate)
are exercised, then we will issue a new warrant or warrant certificate, as applicable, for the remaining warrants.
Governing Law
Unless we otherwise specify
in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with
the laws of the State of New York.
Enforceability of Rights By Holders of Warrants
Each warrant agent, if any,
will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant
agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any
duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
Description of Outstanding Warrants
As of February 28, 2022,
there were warrants to purchase 172,500 shares of our common stock outstanding.
DESCRIPTION OF UNITS
We may issue units comprised
of one or more of the other securities described in this prospectus or in any prospectus supplement in any combination. Each unit will
be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security included in
the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date or upon the occurrence of a specified event or occurrence.
The applicable prospectus
supplement relating to units offered under this prospectus will describe the following terms, where applicable, of such units:
| • | the designation and terms of the units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| • | any unit agreement under which the units will be issued; |
| • | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and |
| • | whether the units will be issued in fully registered or global form. |
PLAN OF DISTRIBUTION
We may sell the securities
being offered pursuant to this prospectus to or through underwriters, through dealers, through agents, or directly to one or more purchasers
or through a combination of these methods. The applicable prospectus supplement will describe the terms of the offering of the securities,
including:
| • | the name or names of any underwriters, if, and if required, any dealers or agents; |
| • | the purchase price of the securities and the proceeds we will receive from the sale; |
| • | any underwriting discounts and other items constituting underwriters’ compensation; |
| • | any discounts or concessions allowed or re-allowed or paid to dealers; and |
| • | any securities exchange or market on which the securities may be listed or traded. |
We may distribute the securities
from time to time in one or more transactions at:
| • | a fixed price or prices, which may be changed; |
| • | market prices prevailing at the time of sale; |
| • | prices related to such prevailing market prices; or |
Only underwriters named in
the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used
in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each underwriter and the
terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters and any dealers)
in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented by managing
underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is used, the managing
underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale, the offered securities
will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Any public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. Unless otherwise set forth
in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will be subject to conditions precedent,
and the underwriters will be obligated to purchase all of the offered securities, if any are purchased.
We may grant to the underwriters
options to purchase additional securities to cover over-allotments, if any, at the public offering price, with additional underwriting
commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment option will be set forth
in the prospectus supplement for those securities.
If we use a dealer in the
sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the securities to the dealer,
as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of
resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We may sell the securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions we will pay the agent in the prospectus supplement.
We may authorize agents or
underwriters to solicit offers by institutional investors to purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We
will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus
supplement.
In connection with the sale
of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the securities for whom they
act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and those
dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional
investors or others that purchase securities directly for the purpose of resale or distribution, may be deemed to be underwriters, and
any discounts or commissions received by them from us and any profit on the resale of the common stock by them may be deemed to be underwriting
discounts and commissions under the Securities Act. No FINRA member firm may receive compensation in excess of that allowable under FINRA
rules, including Rule 5110, in connection with the offering of the securities.
We may provide agents, underwriters
and other purchasers with indemnification against particular civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents, underwriters or other purchasers may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
To facilitate the public
offering of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise
affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves the sale
by persons participating in the offering of more securities than have been sold to them by us, in exercising the over-allotment option
granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating
in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail
in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction as to the
direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
Unless otherwise specified
in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible for trading on Nasdaq
Capital Market. Any underwriters to whom securities are sold by us for public offering and sale may make a market in the securities, but
such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
We may engage in at-the-market
offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter
into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including short sale transactions. If so, the third party may use
securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and
they may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third
party in these sale transactions will be an underwriter and will be identified in the applicable prospectus supplement. In addition, we
may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using
this prospectus. The financial institution or other third party may transfer its economic short position to investors in our securities
or in connection with a concurrent offering of other securities.
We will file a prospectus
supplement to describe the terms of any offering of our securities covered by this prospectus. The prospectus supplement will disclose:
| • | the purchase price of the securities from us; |
| • | the net proceeds to us from the sale of the securities; |
| • | any delayed delivery arrangements; |
| • | any over-allotment or other options under which underwriters, if any, may purchase additional securities
from us; |
| • | any underwriting discounts, commissions or other items constituting underwriters’ compensation,
and any commissions paid to agents; |
| • | in a subscription rights offering, whether we have engaged dealer-managers to facilitate the offering
or subscription, including their name or names and compensation; |
| • | any public offering price; and |
| • | other facts material to the transaction. |
We will bear all or substantially
all of the costs, expenses and fees in connection with the registration of our securities under this prospectus. The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business.
In order to comply with the
securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold in those states only through
registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and complied
with.
LEGAL MATTERS
Unless otherwise indicated
in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon for us by Duane Morris LLP.
If the validity of the securities offered hereby in connection with offerings made pursuant to this prospectus are passed upon by counsel
for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The financial statements
incorporated in this Prospectus by reference from the Company’s Annual Report on Form 10-K have been audited by Dixon Hughes
Goodman LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such
financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus and any subsequent
prospectus supplements do not contain all of the information in the registration statement. We have omitted from this prospectus some
parts of the registration statement as permitted by the rules and regulations of the SEC. Statements in this prospectus concerning
any document we have filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be
comprehensive and are qualified in their entirety by reference to these filings. In addition, we file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains an Internet site that contains reports, proxy and information statements
and other information that we file electronically with the SEC, including us. The SEC’s Internet site can be found at http://www.sec.gov.
In addition, we make available copies of these reports on or through our Internet site at www.virios.com as soon as reasonably practicable
after we electronically file or furnished them to the SEC. The information contained on, or that can be accessed through, our website
is not incorporated by reference into this prospectus. We have included our web address as an inactive textual reference only.
INFORMATION INCORPORATED BY REFERENCE
We have elected to incorporate
certain information by reference into this prospectus. By incorporating by reference, we can disclose important information to you by
referring you to other documents we have filed or will file with the SEC. The information incorporated by reference is deemed to be part
of this prospectus and information in documents that we file later with the SEC will automatically update and supersede information contained
in documents filed earlier with the SEC or contained in this prospectus. This means that you must look at all of the SEC filings that
we incorporate by reference to determine if any statements in the prospectus or any document previously incorporated by reference have
been modified or superseded. This prospectus incorporates by reference the documents set forth below that we have previously filed with
the SEC under the Exchange Act:
| • | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the
SEC on March 18,
2022; and |
| • | the description of our common stock set forth in the Registration Statement on Form 8-A, filed on
December 16, 2020, including any amendment or report filed for the purpose of updating such description. |
We also incorporate by reference
any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form
that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement of
which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that
indicates the termination of the offering of the securities made by this prospectus, which will become a part of this prospectus from
the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided
in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in
any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that
statements in the later-filed document modify or replace such earlier statements. We will furnish without charge to each person, including
any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated
by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference
into such documents. In addition, copies of any or all of the documents incorporated by reference herein may be accessed at our website
at www.virios.com. You should direct any requests for documents to:
Virios Therapeutics, Inc.
44 Milton Avenue
Alpharetta, GA 30009
(866) 620-8655
Attention: Senior Vice President of Finance
Shares of Common Stock
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