Liquidia Corp S-3, filed Dec 22, 2023

Liquidia Corp (LQDA)

S-3 2023-12-22

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	Large Accelerated Filer ☐			Accelerated Filer ☐
	Non-accelerated filer ☒			Smaller reporting company ☒
				Emerging Growth Company ☒

	ABOUT THIS PROSPECTUS					1
	ABOUT LIQUIDIA CORPORATION					2
	RISK FACTORS					4
	SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS					48
	USE OF PROCEEDS					51
	SELLING STOCKHOLDERS					52
	DESCRIPTION OF THE SECURITIES WE MAY OFFER					53
	DESCRIPTION OF CAPITAL STOCK					53
	DESCRIPTION OF DEBT SECURITIES					57
	DESCRIPTION OF WARRANTS					57
	DESCRIPTION OF UNITS					57
	LEGAL OWNERSHIP OF SECURITIES					57
	PLAN OF DISTRIBUTION					61
	WHERE YOU CAN FIND MORE INFORMATION					64
	INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE					64
	LEGAL MATTERS					65
	EXPERTS					65

Securities and Exchange Commission Registration Fee	$	29,520
Printing		*
Accounting Fees and Expenses		*
Transfer Agent and Registrar Fees		*
Legal Fees and Expenses		*
Miscellaneous		*
Total	$	*

SIGNATURE	TITLE	DATE
/s/ Roger A. Jeffs, Ph.D. Roger A. Jeffs, Ph.D.	Chief Executive Officer and Director (Principal Executive Officer)	December 22, 2023
/s/ Michael Kaseta Michael Kaseta	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	December 22, 2023
/s/ Dr. Stephen Bloch Dr. Stephen Bloch	Chairman of the Board of Directors	December 22, 2023
/s/ Damian deGoa Damian deGoa	Director	December 22, 2023
/s/ Dr. Joanna Horobin Dr. Joanna Horobin	Director	December 22, 2023
/s/ David Johnson David Johnson	Director	December 22, 2023
/s/ Arthur Kirsch Arthur Kirsch	Director	December 22, 2023

SIGNATURE	TITLE	DATE
/s/ Paul B. Manning Paul B. Manning	Director	December 22, 2023
/s/ Katie Rielly-Gauvin Katie Rielly-Gauvin	Director	December 22, 2023
/s/ Raman Singh Raman Singh	Director	December 22, 2023

	Exhibit No.			Description
	1.1			Form of Underwriting Agreement**
	3.1			Certificate of Incorporation of Liquidia Corporation (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).
	3.2			Bylaws of Liquidia Corporation (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).
	4.1			Form of Specimen Common Stock Certificate of Liquidia Corporation (incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).
	4.2			Form of Warrant to Purchase Shares of Preferred Stock, issued by Liquidia Technologies, Inc. in January 2017 and February 2017 (incorporated herein by reference to Exhibit 4.4 to Liquidia Technologies, Inc.’s Registration Statement on Form S-1, filed with the SEC on June 28, 2018).
	4.3			Seventh Amended and Restated Investors’ Rights Agreement, dated as of February 2, 2018, by and among the Company, the Investors party thereto and the Common Holders party thereto (incorporated herein by reference to Exhibit 4.5 to Liquidia Technologies, Inc.’s Registration Statement on Form S-1, filed with the SEC on June 28, 2018).
	4.4			Warrant to Purchase Stock, issued February 26, 2021, by Liquidia Corporation to Silicon Valley Bank (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the SEC on March 3, 2021).
	4.5			Warrant to Purchase Stock, dated as of January 7, 2022, by and between Liquidia Corporation and Silicon Valley Bank (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the SEC on January 11, 2022).
	4.6			Warrant to Purchase Stock, dated as of January 7, 2022, by and between Liquidia Corporation and SVB Innovation Credit Fund VIII, L.P. (incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K, filed with the SEC on January 11, 2022).
	4.7			Warrant to Purchase Stock, dated as of January 7, 2022, by and between Liquidia Corporation and Innovation Credit Fund VIII-A L.P. (incorporated herein by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K, filed with the SEC on January 11, 2022).
	4.8			Form of Senior Indenture*
	4.9			Form of Subordinated Indenture*
	4.10			Certificate of Designations of Preferred Stock**
	4.11			Form of Preferred Stock Certificate**
	4.12			Form of Warrant**
	4.13			Form of Unit Certificate**
	5.1			Opinion of DLA Piper LLP (US)*
	23.1			Consent of PricewaterhouseCoopers LLP, Independent Auditors*
	23.2			Consent of DLA Piper LLP (US) (included in Exhibit 5.1)*
	24.1			Power of Attorney (included on signature page to this Registration Statement)*
	25.1			Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture***
	25.2			Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture***
	107			Filing Fee Table*

Section of Trust Indenture Act of 1939, as amended		Section of Indenture
310(a)		6.09
310(b)		6.08
		6.10
310(c)		Inapplicable
311(a)		6.13
311(b)		6.13
311(c)		Inapplicable
312(a)		4.01 4.04
312(b)		4.04(c)
312(c)		4.04(c)
313(a)		4.03
313(b)		4.03
313(c)		4.03
313(d)		4.03
314(a)		4.02
314(b)		Inapplicable
314(c)		2.04 8.04 9.01(c) 10.01(b) 11.05
314(d)		Inapplicable
314(e)		11.05
314(f)		Inapplicable
315(a)		6.01 6.02
315(b)		5.11
315(c)		6.01
315(d)		6.01
		6.02
315(e)		5.12
316(a)		5.09 5.10
		7.04
316(b)		5.06 5.10
316(c)		7.02
317(a)		5.04
317(b)		3.04
318(a)		11.07

		PAGE
ARTICLE 1	DEFINITIONS	1
Section 1.01	Certain Terms Defined	1

ARTICLE 2	SECURITIES	4
Section 2.01	Forms Generally	4
Section 2.02	Form of Trustee’s Certificate of Authentication	4
Section 2.03	Amount Unlimited; Issuable in Series	4
Section 2.04	Authentication and Delivery of Securities	6
Section 2.05	Execution of Securities	7
Section 2.06	Certificate of Authentication	7
Section 2.07	Denomination and Date of Securities; Payments of Interest	7
Section 2.08	Registration, Transfer and Exchange	8
Section 2.09	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	9
Section 2.10	Cancellation of Securities; Destruction Thereof	10
Section 2.11	Temporary Securities	10

ARTICLE 3	COVENANTS OF THE ISSUER	10
Section 3.01	Payment of Principal and Interest	10
Section 3.02	Offices for Payments, Etc.	11
Section 3.03	Appointment to Fill a Vacancy in Office of Trustee	11
Section 3.04	Paying Agents	11
Section 3.05	Written Statement to Trustee	12

ARTICLE 4	SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE	12
Section 4.01	Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders	12
Section 4.02	Reports by the Issuer	12
Section 4.03	Reports by the Trustee	12
Section 4.04	Preservation of Information; Communication with Securityholders	12

ARTICLE 5	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT	13
Section 5.01	Event of Default Defined; Acceleration of Maturity; Waiver of Default	13
Section 5.02	Collection of Debt by Trustee; Trustee May Prove Debt	14
Section 5.03	Application of Proceeds	15
Section 5.04	Suits for Enforcement	16
Section 5.05	Restoration of Rights on Abandonment of Proceedings	16
Section 5.06	Limitations on Suits by Securityholders	16
Section 5.07	Unconditional Right of Securityholders to Institute Certain Suits	17
Section 5.08	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	17
Section 5.09	Control by Holders of Securities	17
Section 5.10	Waiver of Past Defaults	17
Section 5.11	Trustee to Give Notice of Default	18
Section 5.12	Right of Court to Require Filing of Undertaking to Pay Costs	18

ARTICLE 6	CONCERNING THE TRUSTEE	18
Section 6.01	Duties and Responsibilities of the Trustee; During Default; Prior to Default	18
Section 6.02	Certain Rights of the Trustee	18
Section 6.03	Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	19
Section 6.04	Trustee and Agents May Hold Securities; Collections, Etc.	20
Section 6.05	Moneys Held by Trustee	20
Section 6.06	Compensation and Indemnification of Trustee and Its Prior Claim	20
Section 6.07	Right of Trustee to Rely on Officer’s Certificate, Etc.	20
Section 6.08	Disqualification; Conflicting Interests	20

Section 6.09	Persons Eligible for Appointment as Trustee	20
Section 6.10	Resignation and Removal; Appointment of Successor Trustee	21
Section 6.11	Acceptance of Appointment by Successor Trustee	21
Section 6.12	Merger, Conversion, Consolidation or Succession to Business of Trustee	22
Section 6.13	Preferential Collection of Claims Against the Issuer	22

ARTICLE 7	CONCERNING THE SECURITYHOLDERS	22
Section 7.01	Evidence of Action Taken by Securityholders	22
Section 7.02	Proof of Execution of Instruments and of Holding of Securities	23
Section 7.03	Holders to Be Treated as Owners	23
Section 7.04	Securities Owned by Issuer Deemed Not Outstanding	23
Section 7.05	Right of Revocation of Action Taken	23

ARTICLE 8	SUPPLEMENTAL INDENTURES	24
Section 8.01	Supplemental Indentures Without Consent of Securityholders	24
Section 8.02	Supplemental Indentures With Consent of Securityholders	25
Section 8.03	Effect of Supplemental Indenture	25
Section 8.04	Documents to Be Given to Trustee	26
Section 8.05	Notation on Securities in Respect of Supplemental Indentures	26

ARTICLE 9	CONSOLIDATION, MERGER, SALE OR CONVEYANCE	26
Section 9.01	Issuer May Consolidate, Etc., on Certain Terms	26
Section 9.02	Successor Issuer Substituted	27

ARTICLE 10	SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS	27
Section 10.01	Satisfaction and Discharge of Indenture; Defeasance	27
Section 10.02	Application by Trustee of Funds Deposited for Payment of Securities	29
Section 10.03	Repayment of Moneys Held by Paying Agent	29
Section 10.04	Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years	30
Section 10.05	Indemnity for U.S. Government Obligations	30

ARTICLE 11	MISCELLANEOUS PROVISIONS	30
Section 11.01	No Recourse	30
Section 11.02	Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities	30
Section 11.03	Successors and Assigns of Issuer Bound by Indenture	30
Section 11.04	Notices and Demands on Issuer, Trustee and Holders of Securities	30
Section 11.05	Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein	31
Section 11.06	Payments Due on Saturdays, Sundays and Holidays	31
Section 11.07	Conflict of Any Provision of Indenture With Trust Indenture Act of 1939	32
Section 11.08	New York Law to Govern	32
Section 11.09	Counterparts	32
Section 11.10	Effect of Headings	32
Section 11.11	Actions by Successor	32
Section 11.12	Severability	32

ARTICLE 12	REDEMPTION OF SECURITIES AND SINKING FUNDS	32
Section 12.01	Applicability of Article	32
Section 12.02	Notice of Redemption; Partial Redemptions	32
Section 12.03	Payment of Securities Called for Redemption	33
Section 12.04	Exclusion of Certain Securities from Eligibility for Selection for Redemption	34
Section 12.05	Mandatory and Optional Sinking Funds	34

	LIQUIDIA CORPORATION, Issuer

	By:
	Name:
	Title:

	____________, Trustee

	By:
	Name:
	Title:

			Page
ARTICLE 1	DEFINITIONS		1
Section 1.01		Certain Terms Defined	1

ARTICLE 2	SECURITIES		4
Section 2.01		Forms Generally	4
Section 2.02		Form of Trustee’s Certificate of Authentication	5
Section 2.03		Amount Unlimited; Issuable in Series	5
Section 2.04		Authentication and Delivery of Securities	7
Section 2.05		Execution of Securities	8
Section 2.06		Certificate of Authentication	8
Section 2.07		Denomination and Date of Securities; Payments of Interest	8
Section 2.08		Registration, Transfer and Exchange	8
Section 2.09		Mutilated, Defaced, Destroyed, Lost and Stolen Securities	10
Section 2.10		Cancellation of Securities; Destruction Thereof	10
Section 2.11		Temporary Securities	11

ARTICLE 3	COVENANTS OF THE ISSUER		11
Section 3.01		Payment of Principal and Interest	11
Section 3.02		Offices for Payments, Etc.	11
Section 3.03		Appointment to Fill a Vacancy in Office of Trustee	12
Section 3.04		Paying Agents	12
Section 3.05		Written Statement to Trustee	12

ARTICLE 4	SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE		13
Section 4.01		Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders	13
Section 4.02		Reports by the Issuer	13
Section 4.03		Reports by the Trustee	13
Section 4.04		Preservation of Information; Communication with Securityholders	13

ARTICLE 5	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT		13
Section 5.01		Event of Default Defined; Acceleration of Maturity; Waiver of Default	13
Section 5.02		Collection of Debt by Trustee; Trustee May Prove Debt	15
Section 5.03		Application of Proceeds	16
Section 5.04		Suits for Enforcement	17
Section 5.05		Restoration of Rights on Abandonment of Proceedings	17
Section 5.06		Limitations on Suits by Securityholders	17
Section 5.07		Unconditional Right of Securityholders to Institute Certain Suits	17
Section 5.08		Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	17
Section 5.09		Control by Holders of Securities	18
Section 5.10		Waiver of Past Defaults	18
Section 5.11		Trustee to Give Notice of Default	18
Section 5.12		Right of Court to Require Filing of Undertaking to Pay Costs	18

ARTICLE 6	CONCERNING THE TRUSTEE		19
Section 6.01		Duties and Responsibilities of the Trustee; During Default; Prior to Default	19
Section 6.02		Certain Rights of the Trustee	19
Section 6.03		Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	20
Section 6.04		Trustee and Agents May Hold Securities; Collections, Etc.	20
Section 6.05		Moneys Held by Trustee	20
Section 6.06		Compensation and Indemnification of Trustee and Its Prior Claim	20
Section 6.07		Right of Trustee to Rely on Officer’s Certificate, Etc.	21
Section 6.08		Disqualification; Conflicting Interests	21

	DLA Piper LLP (US)
	51 John F. Kennedy Parkway, Suite 120
	Short Hills, New Jersey 07078
	www.dlapiper.com

	T: 973-520-2550
	F: 973-520-2551

	Attorneys Responsible for Short Hills Office:

	Emilio Ragosa