PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
The
following table sets forth the costs and expenses, other than the underwriting discounts and commissions, payable by the registrant
in connection with the sale of common stock being registered. All amounts are estimates except for the SEC registration fee, the
Financial Industry Regulatory Authority, or FINRA, filing fee and NASDAQ additional listing fee.
|
Item
|
|
Amount
to be
paid
|
|
|
SEC
registration fee
|
|
$
|
1,451
|
|
|
FINRA
filing fee
|
|
|
2,300
|
|
|
Printing
and engraving expenses
|
|
|
10,000
|
|
|
Legal
fees and expenses
|
|
|
125,000
|
|
|
Accounting
fees and expenses
|
|
|
40,000
|
|
|
Underwriter’s
expenses
|
|
|
125,000
|
|
|
Miscellaneous
fees and expenses
|
|
|
6,249
|
|
|
Total
|
|
$
|
310,000
|
|
Item
14. Indemnification of Directors and Officers
Nevada
Revised Statutes (“NRS”) 78.7502(1) provides that a corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by
the person in connection with the action, suit or proceeding if the person (i) is not liable pursuant to NRS 78.138 or (ii) acted
in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. NRS 78.7502(2)
provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by
the person in connection with the defense or settlement of the action or suit if the person (a) is not liable pursuant to NRS
78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the corporation. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits
or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, the corporation
shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in
connection with the defense. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the corporation, or that, with respect to any criminal action or proceeding, he or she had reasonable cause to believe that
the conduct was unlawful. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts
paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS
78.751(1) provides that any discretionary indemnification pursuant to NRS 78.7502 (unless ordered by a court or advanced pursuant
to NRS 78.751(2)), may be made by the corporation only as authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances. The determination must be made (i) by the stockholders;
(ii) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or
proceeding; (iii) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding
so orders, by independent legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties
to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751(2) provides
that the corporation’s articles of incorporation or bylaws, or an agreement made by the corporation, may provide that the
expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation
as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking
by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction
that the director or officer is not entitled to be indemnified by the corporation.
Our
articles of incorporation provide that our directors or officers shall not be personally liable to us or our stockholders for
monetary damages for breach of such director’s or officer’s fiduciary duty, except for liability (i) for any breach
of the duty of loyalty to our company or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or (iii) for any transaction from which the officer or director derived any improper
personal benefit. Our articles of incorporation and our amended and restated bylaws provide for the indemnification of any of
our directors and officers 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, by reason of the fact that such person is or was
a director or officer of the our company, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, subject to certain
express limitations and conditions. We believe that these provisions in our articles of incorporation bylaws, as amended, are
necessary to attract and retain qualified persons as directors and officers.
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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
Item
15. Recent Sales of Unregistered Securities
In
the three years preceding the filing of this registration statement, the Registrant has issued the following securities that were
not registered under the Securities Act:
On
April 10, 2017, we issued 225 shares of common stock to one investor upon the exercise of warrants issued October 26, 2016 for
proceeds of $14,175.
On
May 31, 2017, we issued 75 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
June 1, 2017, we issued 75 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
June 5, 2017, we issued 113 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
June 6, 2017, we issued 75 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
June 20, 2017, we issued 75 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
July 11, 2017, we issued 75 shares of common stock to a non-employee director in settlement for restricted stock units that vested
in May 2017.
On
September 28, 2017, we issued 7,304 shares of common stock, at a price per share of $41.10, to Lincoln Park Capital Fund, LLC
pursuant to that certain Purchase Agreement dated September 28, 2017.
On
October 18, 2018, we issued 35,000 commitment shares to Lincoln Park as a fee for its commitment to purchase shares of our common
stock pursuant to that certain Purchase Agreement dated October 18, 2018.
Unless
otherwise noted, all of the transactions described in Item 15 were exempt from registration under the Securities Act pursuant
to Section 4(a)(2) of the Securities Act in that such sales did not involve a public offering, under Rule 701 promulgated under
the Securities Act, in that they were offered and sold either pursuant to written compensatory plans or pursuant to a written
contract relating to compensation, as provided by Rule 701, or under Rule 506 of Regulation D promulgated under the Securities
Act.
Item
16. Exhibits and financial statement schedules
The
exhibits to the registration statement are listed in the Exhibit Index to this registration statement and are incorporated herein
by reference.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b)
The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus
and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such interim financial information.
(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 SEC 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 undersigned Registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, 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 of 1933, 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.