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 check the following box: ¨
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 box 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 post-effective amendment filed pursuant to
Rule 462(d) 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. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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 the Securities Act. ¨
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth all expenses, other than the
underwriting discounts and commissions, payable by the registrant in connection with the sale of the common stock being registered.
All the amounts shown are estimates except the SEC registration fee.
|
|
Total
|
|
SEC registration fee
|
|
$
|
660
|
|
Printing and engraving expenses
|
|
|
1,000
|
|
Legal fees and expenses
|
|
|
5,000
|
|
Accounting fees and expenses
|
|
|
17,000
|
|
Transfer agent and registrar fees
|
|
|
1,000
|
|
Miscellaneous
|
|
|
1,000
|
|
|
|
|
|
|
Total
|
|
$
|
25,660
|
|
Item 14. Indemnification of Directors and Officers
Section 145(a) of the Delaware General Corporation Law
(the “DGCL”) provides, in general, that a corporation shall have the power 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 he or she 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 such action, suit or proceeding, if he or she acted in good faith and in a manner 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 his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation
shall have the power 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 because 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) actually and reasonably incurred by the person in connection with the defense or settlement of such action
or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating
court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem
proper.
Section 145(g) of the DGCL provides, in general, that a corporation
shall have the power to purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred
by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the
power to indemnify the person against such liability under Section 145 of the DGCL.
Section 9.1 of Article IX of the Registrant’s Third Amended
and Restated Certificate of Incorporation, as amended to date (the “Certificate of Incorporation”), and Section 1 of
Article V of the Registrant’s Amended and Restated Bylaws, as amended to date (the “Bylaws”) provide that each
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he
or she is or was a director or officer of the Registrant or is or was serving at the request of the Registrant as a director or
officer of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified
and held harmless by the Registrant to the fullest extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may thereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits
the Registrant to provide broader indemnification rights than such law permitted the Registrant to provide prior to such amendment),
against all expense, liability and loss (including attorneys’ fees, judgments, fines, excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and that such indemnification shall
continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators; provided, however, that, except as otherwise provided in the Certificate of Incorporate or
Bylaws, as applicable, the Registrant will indemnify any such indemnitee in connection with a proceeding initiated by such indemnitee
only if such proceeding was authorized by the Board of Directors of the Registrant. The right to indemnification conferred by the
Certificate of Incorporation and Bylaws is a contract right and includes the right to be paid by the Registrant the expenses incurred
in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); and
provided, further, that, if the General Corporation Law of the State of Delaware requires it, an advancement of expenses incurred
by an indemnitee shall be made only upon delivery to the Registrant of an undertaking, by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses under the Certificate of Incorporation or Bylaws,
as applicable, or otherwise (hereinafter an “undertaking”).
Section 9.2 of Article IX of the Certificate of Incorporation
and Section 2 of Article V of the Bylaws provide that if a claim under Section 9.1 of Article IX of the Certificate of Incorporation
or under Section 1 of Article V of the Bylaws, as applicable, is not paid in full by the Registrant within sixty (60) days after
a written claim has been received by the Registrant, except in the case of a claim for an advancement of expenses, in which case
the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Registrant to
recover the unpaid amount of the claim. If successful in whole or part in any such suit, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses), it shall be a defense
that the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware.
Likewise, in any suit by the Registrant to recover an advancement of expenses pursuant to the terms of an undertaking, the Registrant
shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met such standards. Neither the
failure of the Registrant (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee
has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination
by the Registrant (including its Board of Directors, independent legal counsel or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right under such indemnification provisions of the Certificate of Incorporation or Bylaws, as applicable, or by the
Registrant to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee
is not entitled to be indemnified or to such advancement of expenses shall be on the Registrant.
The Registrant has entered into indemnification agreements with
each of its directors and executive officers, in addition to the indemnification provisions provided for in its charter documents,
and the Registrant intends to enter into indemnification agreements with any new directors and executive officers in the future.
The Registrant also maintains a directors’ and officers’
liability insurance policy that insures the Registrant’s directors and officers against such liabilities as are customarily
covered by such policies.
Item 15. Recent Sales of Unregistered Securities
During the past three years, we have sold and issued the following
unregistered securities.
We issued unregistered securities in
connection with the Merger as previously disclosed and included in our 10-Q filed on August 22, 2017, November 20, 2017, and 8-Ks
filed on February 2, 2017 and June 30, 2017.
On January 20, 2015, the Company entered
into a series of Unsecured Convertible Promissory Notes with seven accredited investors in the principal amount of $925,000. The
Company also issued, to its placement agent for the notes, a convertible promissory note, upon the same terms and conditions as
the notes, in an aggregate principal amount equal to 5% of the proceeds received by the Company, or $46,250. The notes are convertible
into shares of the Company’s common stock. On January 13, 2017, all but one investor exercised their conversion rights relating
to their respective notes, including the agent’s note, and agreed to convert an aggregate amount of $499,359 of principal
and interest due under the notes and agent’s note into 925 shares of the Company’s common stock. On January 17, 2017,
the non-converting investor agreed to extend the maturity date of its note pursuant to an amendment that provides for two-thirds
of the outstanding principal amount of the note must be paid upon the earlier to occur of the close of the Merger with Precipio
Diagnostics, LLC or June 16, 2017 (such applicable date, the “Deferred Maturity Date”). On June 21 2017, the
non-converting investor agreed to further extend the Deferred Maturity Date of the note until the earlier to
occur of (1) the closing of a public offering by the Company of either common stock, convertible preferred stock or convertible
preferred notes or (2) August 16, 2017. On August 31, 2017, the Company made payment of two-thirds of the then outstanding
principal amount, which was more than 10 days after the Deferred Maturity Date and constituted an event of default under the
terms of the Note. The non-converting investor agreed to waive the event of default under the Note and in consideration of this
waiver, the Company issued the non-converting investor warrant to purchase 666 shares of the Company’s common stock, par
value $0.01 per share. The balance was satisfied by the issuance to the non-converting investor of registered common shares on
February 12, 2018.
On April 13, 2017,
Transgenomic completed the sale of the promissory notes in the amount of $1.2 million and the issuance of warrants to acquire 2,667
shares of the Company's common stock at an exercise price of $225 per share, subject to anti-dilution protection. Aegis capital
Corp. acted as placement agent for the bridge financing and received warrants to acquire 373 shares of Transgenomic common stock
at an exercise price of $225.00 per share.
On October 31, 2017, the Company entered
into a Debt Settlement Agreement with certain of its accounts payable creditors and in connection with the settlement, the Company
agreed to issue to certain of the creditors, namely Paul Hasting LLP, Mount Sinai, Montefiore Medical Center and Allergan Sales
LLC, warrants to purchase approximately 7,207 shares of the Company’s common stock at an exercise price of $112.50 per share.
The warrants are exercisable on the date of issuance and will expire five years from the date of issuance.
On April 20, 2018, the Company entered into
a securities purchase agreement (the “Debt Financing Agreement“) with Osher Capital Partners LLC, M2B Funding Corp
and Alpha Capital Anstalt pursuant to which the Company issued up to approximately $3,296,703 in 8% Senior Secured Convertible
Promissory Notes with 100% common stock warrant coverage. The transaction consists of unregistered 8% Senior Secured Convertible
Notes bearing interest at a rate of 8.00% annually and an original issue discount of 9%. The initial notes were convertible at
a price of $7.50 per share, provided that if the note is not repaid within 180 days, the conversion price shall be adjusted to
80% of the lowest volume weighted average price during the prior 10 days, subject to a minimum conversion price of $4.50 per share.
The transaction consisted of multiple drawdowns between April 20, 2018 and September 20, 2018. In aggregate, the closings provided
the Company with $3,000,000 of gross proceeds for the issuance of notes with an aggregate principal of $3,296,703. The notes are
payable by the Company on the earlier of (i) the one year anniversary of each note’s closing date or (ii) upon the closing
of a qualified offering, namely the Company raising gross proceeds of at least $7,000,000.
On September 7, 2018, we issued the 40,000
Commitment Shares to Lincoln Park, as further discussed herein. The Commitment Shares were issued to Lincoln Park in accordance
with the terms of the Purchase Agreement.
On November 29,
2018, we entered into an amendment and restatement agreement (the “Amendment Agreement”) amending and restating the
terms of the Debt Financing Agreement. The Amendment Agreement provided for the issuance of up to $1,318,681 of additional notes
together with applicable warrants, in one or more tranches, on substantially the same terms and conditions as the notes and warrants
granted in connection with the Debt Financing Agreement, subject to certain adjustments to their terms. For the notes issued under
the Debt Financing Agreement as well as the notes issued pursuant to the Amendment Agreement, the conversion price in effect on
any conversion date has been amended so that it shall be equal to the greater of $3.75 or $0.75 above the closing bid price of
our common stock on the date prior to the original issue date. In the event the notes are not paid in full prior to 180 days after
the original issue date, the conversion price shall be equal to 80% of the lowest VWAP in the 10 trading days prior to the date
of the notice of conversion, but in no event below the floor price of $2.25. In aggregate, the notes issued under the Amendment
Agreement provided the Company with $1,100,000 of gross proceeds for the issuance of Notes with an aggregate principal of $1,208,791
and the Company issued to the investors 300,115 warrants to purchase shares of common stock of the Company with an exercise price
of $5.40 and a five-year term.
On September 17, 2018, October 23, 2018
and November 7, 2018 we entered into an Exchange Agreements (the “Exchange Agreements”) with three institutional investors
pursuant to which we agreed to issue promissory notes, due January 1, 2021 in exchange for amounts owed to certain vendors pursuant
to certain debt settlement agreements, dated October 31, 2017. The Exchange was being made in reliance upon the exemption from
registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended. Under the Exchange Agreements, we exchanged
up to an aggregate principal amount of $3,165,903 due under the debt settlement agreements for convertible notes totaling $2,765,568.
Pursuant to the terms of the notes, we shall pay to the noteholders the aggregate principal amount of the notes in eighteen (18)
equal installments beginning on August 1, 2019 and ending on January 1, 2021. In accordance with the terms of the notes, the noteholders
shall have the right, to convert at the then applicable conversion price any amount of the notes up to $300,000 on any given trading
day, with a maximum conversion amount up to $500,000 during a period of five (5) trading days. The conversion price shall be the
lesser of (i) the average volume average weighted price for the five trading days prior to the date of conversion multiplied by
1.65 and (ii) $15.00.
On March 12, 2018,
we entered into a settlement agreement (the “Crede Agreement”) with Crede Capital Group LLC (“Crede”) pursuant
to which we agreed to pay to Crede a total sum of $1.925 million (the “Settlement Amount”) over a period of 16 months
payable in a combination of cash and stock in accordance with terms contained in the Crede Agreement. On January 15, 2019, we entered
into an amendment and restatement agreement with Crede (the “Crede Amendment”), in order to enable us to provide Crede
with an alternative means of payment of the Settlement Amount, which was $1.45 million on the date of the Crede Amendment, by issuing
to Crede a convertible note in the amount of $1,450,000 (the “Crede Note”). The Crede Note was issued on January 15,
2019, as amended and restated on January 28, 2019, and is payable by the Company on the earlier of (i) the two year anniversary
after the original issuance date or (ii) upon the closing of a qualified offering, namely the Company raising gross proceeds of
at least $4,000,000.
On January 29,
2019, we entered into a settlement agreement with Leviston (the “Leviston Agreement”), at which time we issued to Leviston
a convertible note in the amount of $700,000 (the “Leviston Note”). The Leviston Note is payable by the Company (i)
in fourteen equal monthly installments commencing on the earlier to occur of (x) the last day of the month upon which a registration
statement to be filed by the Company covering the resale of the shares of common stock underlying the Note is declared effective
by the Securities and Exchange Commission and (y) the six month anniversary of the date of issuance, (ii) upon the closing of a
qualified offering, namely the Company raising gross proceeds of at least $4,000,000 or (iii) such earlier date as the Leviston
Note is required or permitted to be repaid as provided by the terms of the Leviston Note. The Company, at its option, may redeem
some or all of the then outstanding principal amount of the Leviston Note for cash. The conversion price of the Leviston Note in
effect on any Conversion Date shall equal the VWAP of the Common Stock on the date of Conversion Date.
On April 16, 2019,
the Company entered into an amendment and restatement agreement (“Amendment No.2 Agreement”) amending and restating
the terms of the Securities Purchase Agreement dated April 20, 2018 (as first amended pursuant to the Amendment Agreement dated
November 29, 2018). The Amendment No. 2 Agreement provided the Company with approximately $900,000 of gross proceeds
for the issuance of notes with an aggregate principal of approximately $989,011 (the “April 2019 Bridge Notes”) together
with applicable warrants, with substantially the same terms and conditions as the previously issued bridge notes and related warrants.
In connection with the April 2019 Bridge Note issuances, the Company issued to the investors 147,472 warrants to purchase shares
of common stock of the Company with a five year term and exercise price of $5.40. The April 2019 Bridge Notes were issued to investors that
previously participated in the April 20, 2018 Securities Purchase Agreement. Pursuant to the Amendment No.2 Agreement, the warrants
issued pursuant to the Securities Purchase Agreement dated April 20, 2018 (as amended from time to time) were amended such that
the exercise price of such warrants was amended from $7.50 to $5.40 and any warrant that had a one-year term was amended to have
a five-year term.
On May 14, 2019, the
Company entered into a Securities Purchase Agreement pursuant to which the Company was provided with approximately $1,000,000 of
gross proceeds for the issuance of notes with an aggregate principal of approximately $1,098,901 (the “May 2019 Bridge Notes”)
together with applicable warrants, with substantially the same terms and conditions as the previously issued bridge notes and related
warrants that were issued in connection with the Securities Purchase Agreement dated April 20, 2018 (as amended from time to time).
In connection with the May 2019 Bridge Note issuances, the Company issued to the investors 154,343 warrants to purchase shares
of common stock of the Company with a five year term and exercise price of $9.56. The May 2019 Bridge Notes were issued to investors that
previously participated in the Securities Purchase Agreement dated April 20, 2018.
Unless otherwise stated
above, the issuance of the above securities was deemed to be exempt from the registration requirements of the Securities Act by
virtue of Section 4(a)(2) thereof, as a transaction by an issuer not involving a public offering.
On March 26, 2020,
the Company entered into an amendment agreement (the “March 2020 Amendment”) amending the terms of that certain Amendment
No. 2 Agreement dated April 16, 2019 and the securities purchase agreement dated May 14, 2019. As a result of the March 2020 amendment,
(i) the maturity date of the April 2019 Bridge Notes and the May 2019 Bridge Notes was extended three months from April 16, 2020
to July 16, 2020, (ii) the floor price at which conversions may occur under the April 2019 Bridge Notes and the May 2019 Bridge
Notes was amended from $2.25 to $0.40, and (iii) guaranteed interest on the April 2019 Bridge Notes and the May 2019 Bridge Notes
was amended from twelve months to eighteen months.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
The exhibits to the registration statement are listed in the
Exhibit Index to this registration statement and are incorporated herein by reference.
(b) Financial Statement Schedule.
None.
Item 17. Undertakings
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;
(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 SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent 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, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the
Securities Act 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 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.
The Registrant hereby undertakes that:
(a) The Registrant will provide to the underwriter at the closing
as specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
(b) 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.
(c) 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.