AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 7, 2017
REGISTRATION
NO. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
POLARITYTE,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
06-1529524
I.R.S.
Employer Identification Number
4041-T
Hadley Road
S.
Plainfield, New Jersey 07080
Telephone:
(732) 225-8910
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
Denver
Lough
Chief
Executive Officer
PolarityTE,
Inc.
4041-T
Hadley Road
S.
Plainfield, New Jersey 07080
Telephone:
(732) 225-8910
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Harvey
Kesner, Esq.
Sichenzia
Ross Ference Kesner LLP
61
Broadway, 32
nd
Floor
New
York, NY 10006
(212)
930-9700
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plants, check
the following box:[X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering.[ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
[ ]
Large accelerated filer
[ ]
Accelerated filer
[ ]
Non-accelerated filer (Do not check is a smaller reporting company)
[X]
Smaller reporting company
[ ]
Emerging growth company
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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maximum
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Amount
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maximum
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aggregate
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Amount of
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Title of each class of
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to be
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offering price
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offering
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registration
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Securities to be registered
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registered
(1)
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per unit
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price
(2)
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fee
(3)
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Common stock, par value $0.001 per share
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—
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—
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—
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—
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Preferred stock, par value $0.001 per share
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—
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—
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—
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—
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Warrants(4)
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—
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—
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—
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—
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Units(5)
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—
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—
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—
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—
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Total
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$
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100,000,000
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$
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11,590
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(1)
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There
are being registered hereunder such indeterminate number of shares of common stock, preferred stock, and warrants to purchase
common stock or preferred stock, as shall have an aggregate initial offering price not to exceed $100,000,000. The securities
registered also include such indeterminate amounts and numbers of common stock and preferred stock as may be issued upon conversion
of or exchange for preferred stock that provide for conversion or exchange, upon exercise of warrants, or pursuant to the
antidilution provisions of any such securities.
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(2)
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In
no event will the aggregate offering price of all securities issued from time to time pursuant to this registration statement
exceed $100,000,000.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act. The total amount is being paid herewith.
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(4)
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Includes
warrants to purchase common stock and warrants to purchase preferred stock.
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(5)
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Any
of the securities registered hereunder may be sold separately, or as units with other securities registered hereby. We will
determine the proposed maximum offering price per unit when we issue the above listed securities. The proposed maximum per
unit and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered under this registration statement and is not specified as
to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act.
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The
registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
relating to these securities that has been filed with the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
(Subject
to Completion, Dated July 7, 2017)
PROSPECTUS
$100,000,000
PolarityTE,
Inc.
Common
Stock
Preferred
Stock
Warrants
Units
We
may from time to time, in one or more offerings at prices and on terms that we will determine at the time of each offering, sell
common stock, preferred stock, warrants, or a combination of these securities, or units, for an aggregate initial offering price
of up to $100,000,000. This prospectus describes the general manner in which our securities may be offered using this prospectus.
Each time we offer and sell securities, we will provide you with a prospectus supplement that will contain specific information
about the terms of that offering. Any prospectus supplement may also add, update, or change information contained in this prospectus.
You should carefully read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed
to be incorporated by reference in this prospectus before you purchase any of the securities offered hereby.
This
prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement.
Our common
stock is currently traded on the NASDAQ Capital Market under the symbol “COOL.” On July 6, 2017, the last reported
sales price for our common stock was $22.99 per share. We will apply to list any shares of common stock sold by us under
this prospectus and any prospectus supplement on the NASDAQ Capital Market. The prospectus supplement will contain information,
where applicable, as to any other listing of the securities on the NASDAQ Capital Market or any other securities market or exchange
covered by the prospectus supplement.
The
securities offered by this prospectus involve a high degree of risk. See “Risk Factors” beginning on page 5,
in addition to Risk Factors contained in the applicable prospectus supplement.
Neither
the 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.
We
may offer the securities directly or through agents or to or through underwriters or dealers. If any agents or underwriters are
involved in the sale of the securities their names, and any applicable purchase price, fee, commission or discount arrangement
between or among them, will be set forth, or will be calculable from the information set forth, in an accompanying prospectus
supplement. We can sell the securities through agents, underwriters or dealers only with delivery of a prospectus supplement describing
the method and terms of the offering of such securities. See “Plan of Distribution.”
This
prospectus is dated ___________, 2017
Table
of Contents
You
should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference into this
prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in
this prospectus, you should not rely on it. No dealer, salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus. You should assume that the information contained in this prospectus or any
prospectus supplement is accurate only as of the date on the front of the document and that any information contained in any document
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 or any prospectus supplement or any sale of a security. These documents are not an offer to
sell or a solicitation of an offer to buy these securities in any circumstances under which the offer or solicitation is unlawful.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus
in one of more offerings up to a total dollar amount of proceeds of $100,000,000. This prospectus describes the general manner
in which our securities may be offered by this prospectus. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change
information contained in this prospectus or in documents incorporated by reference in this prospectus. The prospectus supplement
that contains specific information about the terms of the securities being offered may also include a discussion of certain U.S.
Federal income tax consequences and any risk factors or other special considerations applicable to those securities. To the extent
that any statement that we make in a prospectus supplement is inconsistent with statements made in this prospectus or in documents
incorporated by reference in this prospectus, you should rely on the information in the prospectus supplement. You should carefully
read both this prospectus and any prospectus supplement together with the additional information described under “Where
You Can Find More Information” before buying any securities in this offering.
Unless
the context otherwise requires, references to “we,” “our,” “us,” “Polarity” or
the “Company” in this prospectus mean PolarityTE, Inc., f/k/a Majesco Entertainment Company, a Delaware corporation,
on a consolidated basis with its wholly-owned subsidiaries, as applicable.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents and information incorporated by reference in this prospectus include forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These statements are based on our management’s beliefs and assumptions
and on information currently available to our management. Such forward-looking statements include those that express plans, anticipation,
intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact.
All
statements in this prospectus and the documents and information incorporated by reference in this prospectus that are not historical
facts are forward-looking statements. We may, in some cases, use terms such as “anticipates,” “believes,”
“could,” “estimates,” “expects,” “intends,” “may,” “plans,”
“potential,” “predicts,” “projects,” “should,” “will,” “would”
or similar expressions or the negative of such items that convey uncertainty of future events or outcomes to identify forward-looking
statements.
Forward-looking
statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and we undertake
no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change,
except as may be required by applicable law. Although we believe that the expectations reflected in the forward-looking statements
are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
ABOUT
POLARITYTE, INC.
Corporate
Background
The
Company was incorporated in 2004 in the state of Delaware. Effective January 11, 2017, the Company changed its name to PolarityTE,
Inc. from “Majesco Entertainment Company.”
Our
principal executive offices are located at 4041-T Hadley Road, South Plainfield, NJ 07080 and our telephone number is (732) 225-8910.
Our web site address is www.Polarityte.com.
Overview
We
are a technology company which has developed, marketed, published and distributed software through online platforms. We develop
applications for gaming on computers, handheld devices and game consoles. We have had commercial successes (Zumba Fitness) which
have not been replicated and in furtherance of seeking to diversify, on December 1, 2016 we entered into an Agreement and Plan
of Reorganization to acquire the patents, know-how and trade secrets of PolarityTE, Inc. (“PolarityTE NV”). PolarityTE
NV is the owner of patent applications and know-how related to regenerative medicine and tissue engineering, as well as software
applications used in diagnosis and treatment related to regenerative medicine developed by our Chief Executive Officer, Chief
Technology Officer and Chairman of our Board of Directors, Dr. Denver Lough. PolarityTE NV seeks to develop and obtain regulatory
approval for technology that will utilize a patient’s own tissue substrates for the regeneration of skin, bone, muscle,
cartilage, fat, blood vessels and nerves.
With
the foregoing goals and operational strategy in mind, we have directed resources towards building the operational base of the
regenerative medicine business following the execution of the Agreement. The Company leased office and research and development
space in Salt Lake City, Utah and acquired equipment necessary to perform high end tissue engineering development research, including
single and multiphoton microscopes and tissue culture and base equipment together with obtaining certification for the use of
all laboratory equipment. The Company is also building a research and development team suitable for pursuing its regenerative
medicine and tissue engineering goals.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should consider carefully 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 file with the SEC, which are incorporated
by reference into this prospectus.
Our
business, affairs, prospects, assets, financial condition, results of operations and cash flows could be materially and adversely
affected by these risks. For more information about our SEC filings, please see “Where You Can Find More Information.”
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from the sale of the securities under this prospectus
for general corporate purposes, including and for general working capital purposes. We may also use a portion of the net proceeds
to acquire or invest in businesses and products that are complementary to our own, although we have no current plans, commitments
or agreements with respect to any acquisitions as of the date of this prospectus.
DESCRIPTION
OF COMMON STOCK
General
We
are authorized to issue 250,000,000 shares of common stock, $0.001 par value per share.
Holders
of our common stock are entitled to one vote per share. Our Restated Certificate of Incorporation does not provide for cumulative
voting. Holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our Board out
of legally available funds. However, the current policy of our Board is to retain earnings, if any, for the operation and expansion
of our Company. Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled to share ratably in
all of our assets which are legally available for distribution, after payment of or provision for all liabilities. The holders
of our common stock have no preemptive, subscription, redemption or conversion rights.
DESCRIPTION
OF PREFERRED STOCK
We
are authorized to issue up to 10,000,000 shares of preferred stock, par value $0.001 per share, from time to time in one or more
series.
Series
A Preferred Stock
As
of July 7, 2017, there were 3,801,458 shares of Series A Preferred Stock outstanding. The Series A Preferred Stock are
convertible into shares of common stock based on a conversion calculation equal to the stated value of such Series A Preferred
Stock, plus all accrued and unpaid dividends, if any, on such Series A Preferred Stock, as of such date of determination, divided
by the conversion price. The stated value of each Series A Preferred Stock is $0.68 and the initial conversion price was
$4.08 (the current conversion price is $3.00) per share, each subject to adjustment for stock splits, stock dividends,
recapitalizations, combinations, subdivisions or other similar events. In addition, in the event the Company issues or sells,
or is deemed to issue or sell, shares of common stock at a per share price that is less than the conversion price then in effect,
the conversion price shall be reduced to such lower price, subject to certain exceptions. The Company is prohibited from effecting
a conversion of the Series A Preferred Stock to the extent that, as a result of such conversion, such investor would beneficially
own more than 4.99% of the number of shares of common stock outstanding immediately after giving effect to the issuance of shares
of common stock upon conversion of the Series A Preferred Stock, which beneficial ownership limitation may be increased by the
holder up to, but not exceeding, 9.99% (the “Series A Limit”).
Each
holder of Series A Preferred Stock is entitled to vote on all matters submitted to stockholders of the Company, and shall have
the number of votes equal to the number of shares of common stock issuable upon conversion of such holder’s Series A Preferred
Stock,
provided
that a holder is only entitled to vote shares of common stock underlying the Preferred A Shares to the
extent such shares do not result in the holder exceeding the Series A Limit and
provided further
that in no event shall
the holders be entitled to cast votes in excess of the number of votes that holders would be entitled to cast if the Series A
Preferred Stock were converted at $3.54 per share (equal to the market price as determined by NASDAQ on the trading date immediately
prior to closing) (the “Voting Floor”). The Voting Floor shall only be removed in accordance with applicable Nasdaq
Listing Rules. Pursuant to the Certificate of Designations, Preferences and Rights of the 0% Series A Convertible Preferred Stock
of the Company, the Company is prohibited from incurring debt or liens, or entering into new financing transactions without the
consent of the Lead Investor (as defined in the Subscription Agreements dated December 17, 2014). The Preferred A Shares bear
no interest or dividends.
Series
B Preferred Stock
As
of July 7, 2017, there were 48,109.25 shares of Series B Preferred Stock outstanding. The Series B Preferred Stock are
convertible into shares of common stock based on a conversion calculation equal to the stated value of such Series B Preferred
Stock, plus all accrued and unpaid dividends, if any, on such Series B Preferred Stock, as of such date of determination, divided
by the conversion price. The stated value of each Series B Preferred Stock is $140 and the initial conversion price is $8.40 per
share, each subject to adjustment for stock splits, stock dividends, recapitalizations, combinations, subdivisions or other similar
events. The Company is prohibited from effecting a conversion of the Series B Preferred Stock to the extent that, as a result
of such conversion, such investor would beneficially own more than 4.99% of the number of shares of common stock outstanding immediately
after giving effect to the issuance of shares of common stock upon conversion of the Series B Preferred Stock, which beneficial
ownership limitation may be increased by the holder up to, but not exceeding, 9.99% (the “Series B Limit”).
Each
holder of Series B Preferred Stock is entitled to vote on all matters submitted to stockholders of the Company, and shall have
the number of votes equal to the number of shares of common stock issuable upon conversion of such holder’s Series B Preferred
Stock based on a conversion price of $8.40 per share,
provided
that a holder is only entitled to vote shares of common
stock underlying the Series B Preferred Stock to the extent such shares do not result in the holder exceeding the Series B Limit.
The Series B Preferred Stock bear no interest or dividends.
Series
C Preferred Stock
As
of July 7, 2017, there were 20,114.84 shares of Series C Preferred Stock outstanding. The Series C Preferred Stock are
convertible into shares of common stock based on a conversion calculation equal to the stated value of such Series C Preferred
Stock, plus all accrued and unpaid dividends, if any, on such Series C Preferred Stock, as of such date of determination, divided
by the conversion price. The stated value of each Series C Preferred Stock is $120 per share, and the initial conversion price
was $7.20 (the current conversion price is $5.16) per share, each subject to adjustment for stock splits, stock
dividends, recapitalizations, combinations, subdivisions or other similar events. The Company is prohibited from effecting a conversion
of the Series C Preferred Stock to the extent that, as a result of such conversion, such holder would beneficially own more than
4.99% of the number of shares of common stock outstanding immediately after giving effect to the issuance of shares of common
stock upon conversion of the Series C Preferred Stock, which beneficial ownership limitation may be increased by the holder up
to, but not exceeding, 9.99% (the “Series C Limit”).
Subject
to the Series C Limit, each holder is entitled to vote on all matters submitted to stockholders of the Company, and shall have
the number of votes equal to the number of shares of common stock issuable upon conversion of such holder’s Series C Preferred
Shares, based on a conversion price of $7.20 per share. Pursuant to the Certificate of Designations, Preferences and Rights of
the 0% Series C Convertible Preferred Stock of the Company, the Series C Preferred Shares bear no dividends and shall rank junior
to the Company’s Series A Preferred Stock but senior to the Company’s Series B Preferred Stock.
Series
D Preferred Stock
As
of July 7, 2017, there are 26,667 shares of Series D Preferred Stock outstanding. The Series D Preferred Stock are convertible
into shares of common stock based on a conversion calculation equal to the stated value of such Series D Preferred Stock, plus
all accrued and unpaid dividends, if any, on such Series D Preferred Stock, as of such date of determination, divided by the conversion
price. The stated value of each Series D Preferred Stock is $1,000.00 and the initial conversion price is $600 per share, each
subject to adjustment for stock splits, stock dividends, recapitalizations, combinations, subdivisions or other similar events.
The Company is prohibited from effecting a conversion of the Preferred D Shares to the extent that, as a result of such conversion,
such investor would beneficially own more than 4.99% of the number of shares of common stock outstanding immediately after giving
effect to the issuance of shares of common stock upon conversion of the Series D Preferred Stock. Upon 61 days written notice,
the beneficial ownership limitation may be increased by the holder up to, but not exceeding, 9.99%. Except as otherwise required
by law, holders of Series D Preferred Stock shall not have any voting rights. Pursuant to the Certificate of Designations, Preferences
and Rights of the 0% Series D Convertible Preferred Stock, the Preferred D Shares bear no interest or dividends and shall rank
senior to the Company’s other classes of capital stock.
Series
E Preferred Stock
As
of July 7, 2017, there are 7,050 shares of Series E Preferred Stock outstanding. The Series E Preferred Stock are convertible
into shares of common stock based on a conversion calculation equal to the stated value of such preferred stock, plus all accrued
and unpaid dividends, if any, on such preferred stock, as of such date of determination, divided by the conversion price. The
stated value of each Series E Preferred Stock is $1,000 and the initial conversion price is $1.00 per share, each subject to adjustment
for stock splits, stock dividends, recapitalizations, combinations, subdivisions or other similar events.
The
Series E Preferred Stock, with respect to dividend rights and rights on liquidation, winding-up and dissolution, in each case
will rank senior to the Company’s
common stock
and all other securities of
the Company that do not expressly provide that such securities rank on parity with or senior to the Series E Preferred Stock.
Until converted, each share of Series E Preferred Stock is entitled to two votes for every share of
common
stock
into which it is convertible on any matter submitted for a vote of stockholders.
Subject
to the foregoing, our Restated Certificate of Incorporation authorizes our board of directors to issue preferred stock from time
to time with such designations, preferences, conversion or other rights, voting powers, restrictions, dividends or limitations
as to dividends or other distributions, qualifications or terms or conditions of redemption as shall be determined by the Board
of Directors for each class or series of stock. Preferred stock is available for possible future financings or acquisitions and
for general corporate purposes without further authorization of stockholders unless such authorization is required by applicable
law, the rules of the NASDAQ Capital Market or other securities exchange or market on which our stock is then listed or admitted
to trading.
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 common stock. The issuance of preferred stock, while providing flexibility
in connection with possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying,
deferring or preventing a change in control of the Company.
A
prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering.
Such prospectus supplement will include:
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the
title and stated or par value of the preferred stock;
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred
stock;
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock;
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whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall
accumulate;
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the
provisions for a sinking fund, if any, for the preferred stock;
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any
voting rights of the preferred stock;
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the
provisions for redemption, if applicable, of the preferred stock;
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any
listing of the preferred stock on any securities exchange;
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the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the
conversion price or the manner of calculating the conversion price and conversion period;
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if
appropriate, a discussion of Federal income tax consequences applicable to the preferred stock;
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any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
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The
terms, if any, on which the preferred stock may be convertible into or exchangeable for our common stock will also be stated in
the preferred stock prospectus supplement. The terms will include provisions as to whether conversion or exchange is mandatory,
at the option of the holder or at our option, and may include provisions pursuant to which the number of shares of our common
stock to be received by the holders of preferred stock would be subject to adjustment.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of preferred stock or common stock. Warrants may be issued independently or together with
any preferred stock or common stock, and may be attached to or separate from any offered securities. Each series of warrants will
be issued under a separate warrant agreement to be entered into between a warrant agent specified in the agreement and us. The
warrant agent will act solely as our agent in connection with the warrants of that series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of some provisions of the
securities warrants is not complete. You should refer to the securities warrant agreement, including the forms of securities warrant
certificate representing the securities warrants, relating to the specific securities warrants being offered for the complete
terms of the securities warrant agreement and the securities warrants. The securities warrant agreement, together with the terms
of the securities warrant certificate and securities warrants, will be filed with the SEC in connection with the offering of the
specific warrants.
The
applicable prospectus supplement will describe the following terms, where applicable, of the warrants in respect of which this
prospectus is being delivered:
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the
title of the warrants;
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the
aggregate number of the warrants;
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the
price or prices at which the warrants will be issued;
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the
designation, amount and terms of the offered securities purchasable upon exercise of the warrants;
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if
applicable, the date on and after which the warrants and the offered securities purchasable upon exercise of the warrants
will be separately transferable;
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the
terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise
of such warrants;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
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the
price or prices at which and currency or currencies in which the offered securities purchasable upon exercise of the warrants
may be purchased;
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the
date on which the right to exercise the warrants shall commence and the date on which the right shall expire;
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the
minimum or maximum amount of the warrants that may be exercised at any one time;
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information
with respect to book-entry procedures, if any;
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if
appropriate, a discussion of Federal income tax consequences; and
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any
other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of
the warrants.
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Warrants
for the purchase of common stock or preferred stock will be offered and exercisable for U.S. dollars only. Warrants will be issued
in registered form only.
Upon
receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased
securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will
be issued for the remaining warrants.
Prior
to the exercise of any securities warrants to purchase preferred stock or common stock, holders of the warrants will not have
any of the rights of holders of the common stock or preferred stock purchasable upon exercise, including in the case of securities
warrants for the purchase of common stock or preferred stock, the right to vote or to receive any payments of dividends on the
preferred stock or common stock purchasable upon exercise.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of shares of common stock, shares of preferred
stock or warrants or any combination of such securities.
The
applicable prospectus supplement will specify the following terms of any units in respect of which this prospectus is being delivered:
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●
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the
terms of the units and of any of the common stock, preferred stock and warrants comprising the units, including whether and
under what circumstances the securities comprising the units may be traded separately;
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a
description of the terms of any unit agreement governing the units; and
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a
description of the provisions for the payment, settlement, transfer or exchange of the units.
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PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers,
including our affiliates, (iii) through agents, or (iv) through a combination of any these methods. The securities may be distributed
at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. The prospectus supplement will include the following information:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
name or names of any managing underwriter or underwriters;
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the
purchase price of the securities;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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the
net proceeds from the sale of the securities
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any
delayed delivery arrangements
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
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any
commissions paid to agents; and
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any
securities exchange or market on which the securities may be listed.
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Sale
Through Underwriters or Dealers
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one
or more transactions, including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions
in any of our other securities (described in this prospectus or otherwise), including other public or private transactions and
short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement,
the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will
be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time
any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals.
They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved
in the offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its
appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus
supplement.
Delayed
Delivery Contracts
If
the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide
for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described
in the prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those
contracts.
Continuous
Offering Program
Without
limiting the generality of the foregoing, we may enter into a continuous offering program equity distribution agreement with a
broker-dealer, under which we may offer and sell shares of our common stock from time to time through a broker-dealer as our sales
agent. If we enter into such a program, sales of the shares of common stock, if any, will be made by means of ordinary brokers’
transactions on the NASDAQ Capital Market at market prices, block transactions and such other transactions as agreed upon by us
and the broker-dealer. Under the terms of such a program, we also may sell shares of common stock to the broker-dealer, as principal
for its own account at a price agreed upon at the time of sale. If we sell shares of common stock to such broker-dealer as principal,
we will enter into a separate terms agreement with such broker-dealer, and we will describe this agreement in a separate prospectus
supplement or pricing supplement.
Market
Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, other than our common stock all securities we offer under this prospectus
will be a new issue and will have no established trading market. We may elect to list offered securities on an exchange or in
the over-the-counter market. Any underwriters that we use in the sale of offered securities may make a market in such securities,
but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have
a liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule
104 under the Securities Exchange Act. Stabilizing transactions involve bids to purchase the underlying security in the open market
for the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases
of the securities in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence
of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of,
engage in transactions with or perform services for us, in the ordinary course of business.
LEGAL
MATTERS
The
validity of the issuance of the securities offered by this prospectus will be passed upon for us by Sichenzia Ross Ference Kesner
LLP, New York, New York.
EXPERTS
The consolidated balance
sheets of PolarityTE, Inc., formerly Majesco Entertainment Company and Subsidiary as of October 31, 2016 and 2015, and the related
consolidated statements of operations, stockholders’ equity, and cash flows for each of the years then ended, have been
audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their report which is incorporated herein
by reference. Such financial statements have been incorporated herein by reference in reliance on the report of such firm given
upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and special reports, along with other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s
Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information
on the Public Reference Room.
This
prospectus is part of a registration statement on Form S-3 that we filed with the SEC to register the securities offered hereby
under the Securities Act of 1933, as amended. This prospectus does not contain all of the information included in the registration
statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits to the registration
statement from the SEC at the address listed above or from the SEC’s internet site.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement filed with the SEC. The SEC allows us to “incorporate by reference”
into this prospectus the information that we file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information
that we file later with the SEC will automatically update and supersede this information. The following documents are incorporated
by reference and made a part of this prospectus:
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our
Annual Report on Form 10-K for the year ended October 31, 2016 filed with the SEC on December 30, 2016, as amended by Amendment
No. 1 thereto filed with the SEC on January 30, 2017;
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our
Quarterly Report on Form 10-Q for the period ended April 30, 2017, filed with the SEC on June 9, 2017;
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our
Quarterly Report on Form 10-Q for the period ended January 31, 2017, filed with the SEC on March 16, 2017;
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our
Current Reports on Form 8-K filed with the SEC on December 7, 2016, December 16, 2016, January 9, 2017, January 10, 2017,
January 19, 2017, February 14, 2017, February 22, 2017, March 7, 2017, March 13, 2017, and April 7, 2017;
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our
Definitive Proxy Statement on Schedule 14A filed with the SEC on February 24, 2017
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our
Definitive Additional Materials on Schedule 14A filed with the SEC on March 3, 2017;
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the
description of our common stock contained in the our Registration Statement on Form 8-A filed with the SEC on January 21,
2015 (File No. 001-51128), including any amendment or report filed for the purpose of updating such description; and
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all
reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this prospectus and prior to the termination of this offering.
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Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits,
is not incorporated by reference in this prospectus.
The
information about us contained in this prospectus should be read together with the information in the documents incorporated by
reference. You may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: 404I-T Hadley Road,
S. Plainfield, New Jersey 07080, phone number 732-225-8910.
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Units
PolarityTE,
Inc.
Prospectus
, 2017
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the Registrant in connection with this offering, other than underwriting
commissions and discounts, all of which are estimated except for the SEC registration fee.
|
Item
|
|
Amount
|
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SEC
registration fee
|
|
$
|
11,590
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Printing
and engraving expenses
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10,000
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|
Legal
fees and expenses
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50,000
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|
|
Accounting
fees and expenses
|
|
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10,000
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|
Transfer
agent and registrar’s fees and expenses
|
|
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10,000
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|
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Miscellaneous
expenses
|
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15,000
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|
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|
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Total
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$
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106,590
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Item
15. Indemnification of Directors and Officers.
Subsection
(a) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, employee or agent
of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection
(b) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except
that no indemnification may be made with respect to any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section
145 of the DGCL further provides that to the extent a director, officer, employee or agent of a corporation has been successful
on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense
of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by him in connection therewith; that indemnification or advancement of expenses provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and empowers the corporation
to purchase and maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability
asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation
would have the power to indemnify him against such liabilities under Section 145.
Reference
is also made to Section 102(b)(7) of the DGCL, which enables a corporation in its certificate of incorporation to eliminate or
limit the personal liability of a director for monetary damages for violations of a director’s fiduciary duty, except for
liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which the director derived an improper personal benefit. Pursuant to Delaware law, this includes
elimination of liability for monetary damages for breach of the directors’ fiduciary duty of care to the Company and its
stockholders. However, our directors may be personally liable for liability:
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for any breach of duty of loyalty
to us or to our stockholders;
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●
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for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law;
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●
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for unlawful payment of dividends
or unlawful stock repurchases or redemptions; or
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for any transaction from which the
director derived an improper personal benefit.
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In addition, our amended
and restated bylaws provide that:
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●
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we are required to indemnify our
directors and executive officers to the fullest extent not prohibited by Delaware law or any other applicable law, subject
to limited exceptions;
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●
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we may indemnify our other officers,
employees and other agents as set forth in Delaware law or any other applicable law;
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we are required to advance expenses
to our directors and executive officers as incurred in connection with legal proceedings against them for which they may be
indemnified; and
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●
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the rights conferred in the amended
and restated bylaws are not exclusive.
|
Our
Restated Certificate of Incorporation and Restated Bylaws include provisions that indemnify, to the fullest extent allowable under
the DGCL, the personal liability of directors or officers for monetary damages for actions taken as a director or officer of us,
or for serving at our request as a director or officer or another position at another corporation or enterprise, as the case may
be. Our Restated Certificate of Incorporation and Restated Bylaws also provide that we must indemnify and advance reasonable expenses
to our directors and officers, subject to our receipt of an undertaking from the indemnified party as may be required under the
DGCL. Our Restated Certificate of Incorporation expressly authorize us to carry directors’ and officers’ insurance
to protect us, our directors, officers and certain employees for some liabilities. The limitation of liability and indemnification
provisions in our Restated Certificate of Incorporation and Restated Bylaws may discourage stockholders from bringing a lawsuit
against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of
derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit us
and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek non-monetary
relief such as injunction or rescission in the event of a breach of a director’s duty of care. The provisions will not alter
the liability of directors under the federal securities laws. In addition, your investment may be adversely affected to the extent
that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers pursuant
to these indemnification provisions. There is currently no pending material litigation or proceeding against any of our directors,
officers or employees for which indemnification is sought.
Item
16. Exhibits.
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Exhibit
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Number
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Description
of Document
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1.1
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Form
of Underwriting Agreement.*
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4.1
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Restated
Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed on September
15, 2014).
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4.2
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Restated
Bylaws (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on June 17, 2005).
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4.3
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Certificate
of Designations, Preferences and Rights of the 0% Series A Convertible Preferred Stock of Majesco Entertainment Company (incorporated
by reference to Exhibit 4.1 to our Current Report on Form 8-K filed on December 18, 2014)
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4.4
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Certificate
of Designations, Preferences and Rights of the 0% Series B Convertible Preferred Stock of Majesco Entertainment Company (incorporated
by reference to Exhibit 4.1 to our Current Report on Form 8-K filed on April 30, 2015)
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4.5
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Certificate
of Designations, Preferences and Rights of the 0% Series C Convertible Preferred Stock of Majesco Entertainment Company (incorporated
by reference to Exhibit 4.4 to our Current Report on Form 8-K filed on June 9, 2015)
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4.6
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|
Certificate
of Designations, Preferences and Rights for 0% Series D Convertible Preferred Stock (incorporated by reference to Exhibit
4.1 to our Current Report on Form 8-K filed on October 20, 2015)
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4.7
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Certificate
of Amendment to Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with
the Commission on July 29, 2016)
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4.8
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|
Form
of Certificate of Designation of Series E Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to our Form
8-K filed with the Commission on December 7, 2016)
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4.9
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Certificate
of Amendment to Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with
the Commission on January 10, 2017
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4.10
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Form
of Certificate of Designation.*
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4.11
|
|
Form
of Preferred Stock Certificate.*
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4.12
|
|
Form
of Warrant Agreement.*
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4.13
|
|
Form
of Warrant Certificate.*
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4.14
|
|
Form
of Stock Purchase Agreement.*
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4.15
|
|
Form
of Unit Agreement.*
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5.1
|
|
Opinion
of Sichenzia Ross Ference Kesner LLP
|
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23.1
|
|
Consent
of EisnerAmper LLP
|
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23.2
|
|
Consent
of Sichenzia Ross Ference Kesner LLP (contained in Exhibit 5.1).
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*
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To
be filed by amendment or by a Current Report on Form 8-K and incorporated by reference herein.
|
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however
, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on
Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or (5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
(d)
The registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for fling on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of South Plainfield, State of New Jersey, on July 7, 2017.
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POLARITYTE,
INC.
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By:
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/s/
Denver Lough
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Denver
Lough
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Chief
Executive Officer (Principal Executive Officer)
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By:
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/s/
John Stetson
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John
Stetson
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Chief
Financial Officer (Principal Financial and Accounting Officer)
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Each
person whose signature appears below constitutes and appoints Denver Lough and John Stetson, and each of them severally, as his
true and lawful attorney in fact and agent, with full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to the Registration
Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and
to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, each acting alone, or his or
her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities held on the dates indicated.
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/s/ Denver Lough
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Chief Executive Officer, Chief Scientific Officer, Chairman and Director of the Board of Directors
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Denver Lough
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(Principal Executive Officer)
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July 7, 2017
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/s/ John Stetson
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Chief Financial Officer and Director
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John Stetson
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(Principal Financial and Accounting Officer)
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July 7, 2017
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/s/ Edward Swanson
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Edward Swanson
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Chief Operating Officer and Director
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July 7, 2017
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/s/ Steve Gorlin
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Steve Gorlin
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Director
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July 7, 2017
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/s/ Michael Beeghley
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Michael Beeghley
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Director
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July 7, 2017
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/s/ Jeff Dyer
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Jeff Dyer
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Director
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July 7, 2017
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/s/ Jon Mogford
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Jon Mogford
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Director
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July 7, 2017
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