Filed pursuant to Rule 424(b)(5)
Registration Statement No. 333-222488
Amendment No. 1 to Prospectus Supplement
(To prospectus dated January 9, 2018)
SPHERIX INCORPORATED
105,731 Shares of Common Stock
Pre-funded Warrants to Purchase 201,961
Shares of Common Stock
This Amendment No.
1 to the Prospectus Supplement is being filed to amend and restate in its entirety that certain Prospectus Supplement filed by
Spherix Incorporated on May 31, 2019 to reflect amended transaction terms pursuant to an Amendment, dated June 6, 2019, to that
certain Securities Purchase Agreement, dated May 29, 2019, between Spherix Incorporated and an accredited investor.
We are offering (i)
105,731 shares of our common stock, par value $0.0001 per share, for a purchase price equal to $2.60 per share, and (ii) pre-funded
common stock purchase warrants to purchase up to 201,961 shares of common stock, at purchase price of $2.5999 per pre-funded warrant,
which represents the per share purchase price, less a $0.0001 per share exercise price per pre-funded warrant, for aggregate gross
proceeds of $799,979, pursuant to this prospectus supplement and the accompanying prospectus. This prospectus supplement also relates
to the offering of the shares of common stock issuable upon exercise of the pre-funded warrants. The pre-funded warrants are being
offered in lieu of shares of common stock that would otherwise result in the purchaser’s beneficial ownership exceeding 4.99%
of our common stock. For a description of our common stock and our pre-funded warrants, see the section entitled “
Description
of Securities We Are Offering
” beginning on page S-9 of this prospectus supplement.
Our common stock is
listed on The NASDAQ Capital Market (NASDAQ) under the symbol “SPEX.” On June 6, 2019, the last reported sales price
of our common stock on NASDAQ was $2.98 per share. Our pre-funded warrants will not be listed for trading on any national securities
exchange.
As of June 6, 2019,
the aggregate market value of our outstanding common stock held by non-affiliates was approximately $7,445,887 based on 2,013,396
outstanding shares of common stock, of which approximately 1,914,110 shares are held by non-affiliates, and a per share price of
$3.89, based upon the closing sale price of our common stock on April 8, 2019. During the 12 calendar month period that ends on,
and includes, the date of this prospectus supplement, we have not offered and sold any of our securities pursuant to General Instruction
I.B.6 of Form S-3.
Investing in our
securities involves a high degree of risk. You should read this prospectus supplement and the information incorporated herein by
reference carefully before you make your investment decision. See “
Risk Factors
” beginning on page S-6 of this
prospectus supplement.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this Amendment No. 1, the original prospectus supplement or the accompanying prospectus. Any representation
to the contrary is a criminal offense.
The date of this Amendment No. 1 to the prospectus supplement is June 7, 2019
TABLE OF CONTENTS
Prospectus Supplement
Prospectus
You should rely
only on the information we have provided or incorporated by reference in this prospectus supplement and the accompanying prospectus.
We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this
prospectus supplement or the accompanying prospectus.
This prospectus
supplement and any later prospectus supplement is an offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so.
You should assume
that the information contained in this prospectus supplement and in any other prospectus supplement is accurate only as of their
respective dates and that any information we have incorporated by reference is accurate only as of the date of the document incorporated
by reference, regardless of the time of delivery of this prospectus supplement or any other prospective supplement for any sale
of securities.
EXPLANATORY NOTE
This Amendment No. 1 to the Prospectus Supplement is being filed to amend and restate in its entirety
that certain Prospectus Supplement filed by Spherix Incorporated on May 31, 2019 to reflect amended transaction terms pursuant
to an Amendment, dated June 6, 2019, to that certain Securities Purchase Agreement, dated May 29, 2019, between Spherix Incorporated
and an accredited investor.
ABOUT THIS PROSPECTUS SUPPLEMENT
This document consists
of two parts. The first part is this prospectus supplement, which describes the specific terms of this offering. The second part,
the accompanying prospectus, gives more general information, some of which may not apply to this offering. Generally, when we refer
only to the “prospectus,” we are referring to both parts combined. This prospectus supplement may add to, update or
change information in the accompanying prospectus and the documents incorporated by reference into this prospectus supplement or
the accompanying prospectus.
If information in this
prospectus supplement is inconsistent with the accompanying prospectus, you should rely on this prospectus supplement. This prospectus
supplement, the accompanying prospectus, any related free-writing prospectus and the documents incorporated into each by reference
include important information about us, the shares being offered and other information you should know before investing in our
securities.
You should rely only
on this prospectus supplement, the accompanying prospectus, any related free-writing prospectus and the information incorporated
or deemed to be incorporated by reference in this prospectus supplement, the accompanying prospectus or in any free writing prospectuses
we have prepared. We have not authorized anyone to provide you with information that is in addition to, or different from, that
contained or incorporated by reference in this prospectus supplement, the accompanying prospectus or in any free writing prospectuses
we have prepared. If anyone provides you with different or inconsistent information, you should not rely on it. We are not offering
to sell securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained
or incorporated by reference in this prospectus supplement, the accompanying prospectus or any free-writing prospectus is accurate
as of any date other than as of the date of this prospectus supplement, the accompanying prospectus or any related free-writing
prospectus, as the case may be, or in the case of the documents incorporated by reference, the date of such documents regardless
of the time of delivery of this prospectus supplement and the accompanying prospectus or any sale of our securities. Our business,
financial condition, liquidity, results of operations, and prospects may have changed since those dates.
Unless otherwise stated,
all references to “us,” “our,” “SPEX,” “we,” the “Company” and similar
designations refer to Spherix Incorporated. Our logo, trademarks and service marks are the property of Spherix Incorporated. Other
trademarks or service marks appearing in this prospectus supplement are the property of their respective holders.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement
and the documents incorporated by reference herein may contain forward looking statements that involve risks and uncertainties.
All statements other than statements of historical fact contained in this prospectus supplement and the documents incorporated
by reference herein, including statements regarding future events, our future financial performance, business strategy, and plans
and objectives of management for future operations, are forward-looking statements. We have attempted to identify forward-looking
statements by terminology including “anticipates,” “believes,” “can,” “continue,”
“could,” “estimates,” “expects,” “intends,” “may,” “plans,”
“potential,” “predicts,” “should,” or “will” or the negative of these terms or
other comparable terminology. Although we do not make forward looking statements unless we believe we have a reasonable basis for
doing so, we cannot guarantee their accuracy. These statements are only predictions and involve known and unknown risks, uncertainties
and other factors, including the risks outlined under “Risk Factors” or elsewhere in this prospectus supplement and
the documents incorporated by reference herein, which may cause our or our industry’s actual results, levels of activity,
performance or achievements expressed or implied by these forward-looking statements. Moreover, we operate in a highly regulated,
very competitive, and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict
all risk factors, nor can we address the impact of all factors on our business or the extent to which any factor, or combination
of factors, may cause our actual results to differ materially from those contained in any forward-looking statements.
We have based these
forward-looking statements largely on our current expectations and projections about future events and financial trends that we
believe may affect our financial condition, results of operations, business strategy, short term and long term business operations,
and financial needs. These forward-looking statements are subject to certain risks and uncertainties that could cause our actual
results to differ materially from those reflected in the forward looking statements. Factors that could cause or contribute to
such differences include, but are not limited to, those discussed (i) in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, (ii) in our Quarterly Report on Form 10-Q for the period ended March 31, 2019, (iii) in this prospectus supplement,
and in particular, the risks discussed below and under the heading “Risk Factors” and (iv) those discussed in other
documents we file with the Securities and Exchange Commission (“SEC”). The following discussion should be read in conjunction
with the consolidated financial statements for the fiscal years ended December 31, 2018 and 2017 and notes incorporated by reference
herein. We undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements,
except as required by law. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances
discussed in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied
in the forward-looking statement.
You should not place
undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus supplement. You are
advised to consult any further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the
SEC.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights
selected information contained elsewhere in this prospectus supplement. This summary does not contain all the information
that you should consider before investing in our Company. You should carefully read the entire prospectus supplement,
including all documents incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,”
“Information With Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and the financial statements and related notes thereto contained herein or otherwise incorporated
by reference hereto, before making an investment decision.
Business Overview
We are a technology
development company committed to the fostering of innovative ideas. Spherix Incorporated was formed in 1967 as a scientific research
company and for much of our history pursued drug development including through Phase III clinical studies which were largely discontinued
in 2012. In 2012 and 2013, we shifted our focus to being a firm that owns, develops, acquires and monetizes intellectual property
assets. Such monetization included, but was not limited to, acquiring IP from patent holders in order to maximize the value of
the patent holdings by conducting and managing a licensing campaign, commercializing the IP, or through the settlement and litigation
of patents.
Our activities generally
include the acquisition and development of patents through internal or external research and development. In addition, we seek
to acquire existing rights to intellectual property through the acquisition of already issued patents and pending patent applications,
both in the United States and abroad. We may alone, or in conjunction with others, develop products and processes associated with
technology development and monetizing related intellectual property.
Since March 1, 2013,
the Company has received limited funds from its IP monetization. In addition to our patent monetization efforts, since the fourth
quarter of 2017, we have been transitioning to a technology development company. The Company made no investments in new IP during
2017 and 2018 and started the transition with its investment in Hoth Therapeutics, Inc. during the 3rd quarter of 2017, and with
its agreement with DatChat, Inc. (“DatChat”) in March 2018 (which was subsequently terminated in August 2018).
Pursuant to a Share
Purchase Agreement, dated as of May 15, 2019, the Company agreed to purchase: (i) 50,000 shares of CBM BioPharma, Inc. and (ii)
certain securities and uncertificated rights of DatChat from an existing shareholder of CBM and DatChat for an aggregate purchase
price of $350,000. The investment represents a 20% interest in CBM, and the securities and rights of DatChat that were purchased
include: (a) a senior convertible note issued by DatChat with outstanding principal of $300,000, with an initial conversion rate
of $0.20 per share (b) a warrant to purchase 2,250,000 shares of DatChat common stock at an initial exercise price of $0.20 per
share, (c) an option to acquire an additional $300,000 senior convertible note and a warrant to purchase 1,500,000 shares of DatChat
common stock, (d) a contingent option to purchase 500,000 shares of DatChat common stock from an existing DatChat stockholder,
and (e) a contingent option to put 200,000 shares of DatChat common stock, subject to certain terms and conditions . The transaction
is expected to close within 10 business days of the execution of the agreement.
In October 2018, the
Company entered into an agreement and plan of merger, subject to shareholder approval, with CBM BioPharma, Inc. (“CBM”),
a pharmaceutical company focusing on the development of cancer treatments, pursuant to which all shares of capital stock of CBM
will be converted into the right to receive an aggregate of 3,529,411 shares of the Company’s common stock with CBM continuing
as the surviving corporation in the merger.
On February 15, 2019,
Hoth announced the pricing of its initial public offering (“IPO) of 1,250,000 shares of its common stock at an initial offering
price to the public of $5.60 per share. All shares of common stock were offered by Hoth. In addition, Hoth granted the
underwriters a 30-day option to purchase up to an additional 187,500 shares of common stock at the initial public offering price,
less the underwriting discount, to cover over-allotments, if any.
Hoth’s common
stock commenced trading on The Nasdaq Capital Market, on February 15, 2019 under the ticker symbol “HOTH”. The
IPO closed on February 20, 2019. As of the date of this prospectus supplement, the Company and its affiliates own approximately
19% of Hoth.
On May 15, 2019, the
Company restructured the terms of its proposed merger with CBM as agreed to in an Agreement and Plan of Merger dated October 10,
2018 (the “CBM Merger Agreement”) and entered into an Asset Purchase Agreement (the “APA”) with CBM, whereby
the Company purchased CBM’s Purchased Assets (as defined in the APA), including, among other things, a license agreement
relating to certain technologies in the areas of acute myeloid leukemia (AML), acute lymphoblastic leukemia (ALL), acral lentiginous
melanoma and pancreatic cancer, university contracts, and contracts with a chief scientist and an advisory board (the “Purchase”
or “Asset Acquisition”).
In connection with
the execution of the APA, the CBM Merger Agreement was terminated and any and all termination fees thereunder have been waived.
As consideration for
the Purchase, the Company agreed to pay aggregate consideration of $8,000,000 to CBM consisting of (i) the Stock Consideration
comprised of (A) the Common Stock Consideration based on a per share purchase price of $3.61, subject to adjustment (the “Buyer
Common Stock Price”), which ultimately limits CBM’s maximum voting control of the Company to 9.9% of the Company’s
issued and outstanding Common Stock, and (B) such number of shares of nonvoting Series L convertible preferred stock as shall be
equal to the Stock Consideration less the value of the shares of Common Stock comprising the Common Stock Consideration, with each
share constituting the Stock Consideration valued at the Buyer Common Stock Price, and (ii) the Cash Consideration Amount, less
the sum of (A) the amount of any Affiliate Receivables (as defined in the APA), (B) the amount of the outstanding Indebtedness
(as defined in the APA) as of the Closing Date, if any, to the applicable creditor(s), (C) the amount of the unpaid Transaction
Expenses (as defined in the APA) as of the Closing Date, if any, to the applicable payee, and (D) the amount of unpaid Transaction
Bonuses (as defined in the APA), if any, to the recipients thereof. The Cash Consideration Amount from the Purchase Consideration
is held back and becomes payable to CBM upon the consummation by the Company of the first Qualified Financing (as defined in the
APA) after the Closing Date. Upon consummation of a Qualified Financing by the Company, the Company will retain the first $2,000,000
of gross proceeds received in connection with such Qualified Financing and CBM will receive 100% of the gross proceeds of such
Qualified Financing received by the Company in excess of $2,000,000 as well as the gross proceeds of any subsequent equity financings
by the Company until the Cash Consideration Amount is satisfied in full.
The Company is prohibited
from issuing shares of Common Stock under the APA which, when aggregated with any other shares of Common Stock of the Company,
would exceed 19.99% shares of Common Stock of the Company, unless and until shareholder approval of the issuance of the Common
Stock is approved. Upon the execution of the APA, the Company and CBM agreed to terminate the Merger Agreement, including all schedules
and exhibits thereto, and all ancillary agreements contemplated thereby, and waived the Termination Fee.
Additionally, at or
prior to the Closing, the Company, the Stockholder Representative, and a mutually agreeable escrow agent (the “Escrow Agent”),
shall enter into an Escrow Agreement, effective as of the Effective Time, in form and substance reasonably satisfactory to the
parties (the “Escrow Agreement”), pursuant to which the Company shall deposit with the Escrow Agent 10% of the Stock
Consideration (including any equity securities paid as dividends or distributions with respect to such shares or into which such
shares are exchanged or converted, the “Escrow Shares”), to be held in a segregated escrow account (the “Escrow
Account”) and disbursed by the Escrow Agent. Each stockholder of CBM (each, a “CBM Stockholder”) shall receive
its pro rata share of the Stock Consideration based on their percentage ownership of CBM. The Escrow Shares shall serve as a security
for, and a source of payment of, the indemnity rights of the Company indemnified parties.
The obligations of
the Company and CBM to consummate the transaction are subject to: (a) all necessary approvals being obtained by relevant governmental
authorities, third parties, and the shareholders of the Company and CBM, (b) the absence of any Law (as defined in the APA) being
enacted, issued, promulgated, enforced or entered, or any Order (as defined in the APA) by a Governmental Authority which makes
the transaction illegal, and (c) no pending Action (as defined in the APA) being brought by a third-party non-Affiliate (as defined
in the APA) to enjoin or restrict the transaction; and (d) certain customary closing conditions, including but not limited to the
accuracy of certain representations and warranties, the performance in all material respects of each parties’ obligations,
agreements and covenants under the APA, and no Material Adverse Effect having occurred with respect to either the Company or CBM
since the date of the APA.
The APA may be terminated
(i) by mutual written consent of the Company and CBM, (ii) by written notice by the Company or CBM if any of the conditions to
Closing (as defined in the APA) are not satisfied or waived by September 30, 2019 (unless a condition to Closing is due to breach
or violation of the Company or CBM of any representation, warranty, covenant or obligation under the APA), (iii) by written notice
by the Company or CBM if a Governmental Authority (as defined in the APA) has issued an Order (as defined in the APA) or taken
action restraining, enjoining or prohibiting the transactions contemplated by the APA (unless a condition to Closing is due to
breach or violation of the Company or CBM of any representation, warrant, covenant or obligation under the APA), (iv) by written
notice of the Company if there is has been an incurable material breach by CBM of any of its representations, warranties, covenants
or obligations, (v) by written notice of CBM if there is has been an incurable material breach by the Company of any of its representations,
warranties, covenants or obligations, or (v) by written notice by the Buyer if there shall have been a Material Adverse Effect
(as defined in the APA) on the Company following the date of the APA.
On May 10, 2019, the
Company effected a reverse stock split of its outstanding shares of common stock at a ratio of one-for-4.25 (the “Reverse
Stock Split”). The Reverse Stock Split, which was approved by the Company’s board of directors under authority granted
by the Company’s stockholders at the Company’s 2019 Annual Meeting of Stockholders held on April 15, 2019, was consummated
pursuant to a Certificate of Amendment filed with the Secretary of State of Delaware on May 9, 2019 (the “Certificate of
Amendment”). The Reverse Stock Split was effective at 12:01 a.m., Eastern Standard Time, on May 10, 2019. Unless the
context otherwise requires, all references in this prospectus supplement to shares of our common stock, including prices per share
of our common stock, reflect the Reverse Stock Split.
Recent Developments
On May 30, 2019, the
Company entered into Amendment No. 1 (the “Amendment”) to the APA, pursuant to which the APA was amended to include
a termination fee whereby, in the event that the APA is terminated on or prior to December 31, 2019 (i) by CBM as a result of a
material breach by the Company of any of its representations, warranties, covenants or agreements under the APA, which such breach
is not cured within 20 days after written notice by CBM to the Company, or (ii) by either the Company or CBM in the event that
the issuance of the equity portion of the consideration to be paid to CBM by the Company pursuant to the APA is not approved by
the Company’s stockholders at a duly held special meeting of the Company, the Company will issue to CBM or CBM’s designee
an aggregate of 250,000 shares of the Company’s Common Stock (the “Buyer Termination Fee”) within two business
days of termination, it being understood that in no event will CBM be entitled to the Buyer Termination Fee on more than one occasion.
Corporate Information
Our principal executive
offices are located at One Rockefeller Plaza, New York, NY 10020, our telephone number is (212) 745-1374, and our Internet website
address www.spherix.com. The information on our website is not a part of, or incorporated in, this prospectus supplement.
THE OFFERING
The following summary
contains basic information about the offering and is not intended to be complete. It does not contain all the information that
may be important to you. For a more complete understanding of the securities we are offering, you should read the section entitled
“Description of Securities We Are Offering.”
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Common stock we are offering
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105,731 shares.
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Offering price of common stock
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$2.60 per share.
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Pre-funded warrants offered by us
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We are also offering pre-funded
warrants to purchase up to 201,961 shares of common stock, in lieu of purchasing shares of common stock. The purchase price of
each pre-funded warrants will equal the price per share in this offering, minus $0.0001, and the exercise price of each pre-funded
warrants will be $0.0001 per share. Each pre-funded warrant will be exercisable immediately upon issuance and may be exercised
at any time until all of the pre-funded warrants are exercised in full, except that a holder will not have the right to exercise
any portion of the pre-funded warrants if the holder (together with its affiliates) would beneficially own in excess of 4.99%,
of the number of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership
is determined in accordance with the terms of the pre-funded warrants. This prospectus supplement also relates to the offering
of the shares of common stock issuable upon exercise of such pre-funded warrants. See “Description of Securities We are
Offering—Pre-Funded Warrants” for a discussion on the terms of the pre-funded warrants.
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Offering price of pre-funded warrants
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$2.5999 per pre-funded warrant.
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Common stock to be outstanding immediately
after this
offering (including the shares of common
stock underlying
the pre-funded warrants)
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2,321,088 shares of common stock (assuming the exercise in full of the pre-funded warrants and the issuance in full of the shares of common stock underlying the pre-funded warrants).
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Use of Proceeds
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We intend to use the net proceeds of this offering for working capital and general corporate purposes. See “Use of Proceeds.”
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Risk Factors
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Your investment in our securities involves substantial risks. You should consider the “Risk Factors” and the “Note Regarding Forward-Looking Statements” included and incorporated by reference in this prospectus supplement and the accompanying prospectus, including the risk factors incorporated by reference from our filings with the SEC.
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NASDAQ ticker symbol
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Our common stock is listed on The NASDAQ Capital Market under the symbol “SPEX.” The pre-funded warrants will not be listed for trading on any national securities exchange.
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The number of shares of common
stock shown above to be outstanding after this offering is based on the 2,013,396 shares outstanding as of June 6, 2019 and excludes
as of such date:
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107,370 shares of our common stock issuable upon exercise of outstanding options at a weighted average exercise price of $5.30
per share;
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285,273 shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $24.63
per share (without giving effect to any of the anti-dilution adjustment provisions thereof);
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688 shares of common stock issuable upon the conversion of our Series D and D-1 Preferred Stock; and
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12,585 shares of our common stock to be reserved for potential future issuance pursuant to our 2012, 2013 and 2014 Equity Incentive
Plans, combined.
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THE SECURITIES PURCHASE AGREEMENT
On May 29, 2019, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”)
with an accredited investor (the “Purchaser”) for the sale by the Company of 221,000 shares (the “Shares”)
of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) at a purchase price of $2.60
per share, and pre-funded common stock purchase warrants to purchase up to 86,692 shares of Common Stock (the “Warrants”)
at a purchase price of $2.5999 per Warrant, which represents the per Share purchase price, less a $0.0001 per share exercise price
for each of the Warrants. The Company sold the Shares and Warrants for aggregate gross proceeds of approximately $799,979
,
which transaction closed on May 31, 2019.
On June 6, 2019,
the Company entered into an amendment (the “Amendment”) to the Purchase Agreement, pursuant to which the Purchaser
shall surrender an aggregate of 115,269 Shares to the Company and the Company shall issue an aggregate of 115,269 Warrants to
the Purchaser in order to limit the Purchaser’s beneficial ownership in the Company to 4.99%. The Amendment represents the
mutual intent of the parties prior to the execution of the Purchase Agreement, which was to provide for a 4.99% beneficial ownership
limitation rather than a 9.99% limitation. The transaction is expected to close on June 7, 2019.
The Purchase Agreement, as amended,
contains customary representations and warranties of the Company, termination rights of the parties and certain covenants of the
Company.
The Warrants are immediately
exercisable for $0.0001 per share until exercised in full, except that a holder will not have the right to exercise any portion
of the Warrant if the holder (together with its affiliates) would beneficially own in excess of 4.99% of the number of shares of
Common Stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance
with the terms of the Warrants. However, any holder may increase or decrease such percentage to any other percentage upon notice
to the Company, but in no event in excess of 9.99%, provided that any increase in such percentage shall not be effective until
61 days after such notice. The Warrants may also be exercisable on a “cashless” basis.
The Company received
net proceeds of approximately $799,979 from the sale of the Shares and Warrants. The net proceeds will be used for working capital
purposes.
RISK FACTORS
Investing in our
securities involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully consider the
risk factors we describe in this prospectus supplement and in any related free writing prospectus that we may authorize to be provided
to you or in any report incorporated by reference into this prospectus supplement, including our Annual Report on Form 10-K for
the year ended December 31, 2018, or any Annual Report on Form 10-K or Quarterly Report on Form 10-Q that is incorporated
by reference into this prospectus supplement after the date of this prospectus supplement. Although we discuss key risks in
those risk factor descriptions, additional risks not currently known to us or that we currently deem immaterial also may impair
our business. Our subsequent filings with the SEC may contain amended and updated discussions of significant risks. We
cannot predict future risks or estimate the extent to which they may affect our financial performance.
Risks Related to This Offering
Management will have broad discretion
as to the use of the net proceeds from this offering, and we may not use these proceeds effectively.
We intend to use the
net proceeds from this offering for working capital and general corporate purposes. Our management will have broad discretion in
the application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our results of
operations or enhance the value of our common stock. Accordingly, you will be relying on the judgment of our management with regard
to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. Our failure to apply these funds effectively could have a material adverse effect on
our business, delay the development of our product candidates and cause the price of our common stock to decline.
We do not anticipate declaring any
cash dividends on our common stock which may adversely impact the market price of our stock.
During the last four
years, we have not declared or paid cash dividends on our common stock and do not plan to pay any cash dividends in the near future.
Investors must look solely to the potential for appreciation in the market price of the shares of our common stock to obtain a
return on their investment.
Sales of a significant number of
shares of our common stock in the public markets, or the perception that such sales could occur, could depress the market price
of our common stock.
Sales of a significant
number of shares of our common stock in the public markets, or the perception that such sales could occur could depress the market
price of our common stock and impair our ability to raise capital through the sale of additional equity securities. We cannot predict
the effect that future sales of our common stock or the market perception that we are permitted to sell a significant number of
our securities would have on the market price of our common stock.
The exercise of outstanding options and warrants to acquire
shares of our common stock would cause dilution, which could cause the price of our common stock to decline.
In the past, we have issued options and warrants to acquire shares of our common stock. As of the date
hereof, there were 107,370 shares of common stock issuable upon exercise of outstanding options at a weighted average exercise
price of $5.30 per share and 285,273 shares of common stock issuable upon exercise of outstanding warrants at a weighted average
exercise price of $24.63 per share, (excluding any pre-funded warrants issued in this offering), and we may issue additional options,
warrants and other types of equity in the future as part of stock-based compensation, capital raising transactions or other strategic
transactions. To the extent these options and warrants are ultimately exercised, existing holders of our common stock would experience
dilution which may cause the price of our common stock to decline.
Holders
of pre-funded warrants purchased in this offering will have no rights as holders of common stock until such holders exercise their
pre-funded warrants and acquire our common stock, except as set forth in the pre-funded warrants.
Until holders
of pre-funded warrants acquire shares of our common stock upon exercise of the pre-funded warrants, holders of pre-funded warrants
will have no rights with respect to the shares of our common stock underlying such pre-funded warrants, except as set forth in
the pre-funded warrants. Upon exercise of the pre-funded warrants, the holders will be entitled to exercise the rights of a holder
of common stock only as to matters for which the record date occurs after the exercise date.
There is no public market for the
pre-funded warrants being offered in this offering.
There
is no established public trading market for the pre-funded warrants being offered in this offering, and we do not expect a market
to develop. In addition, we do not intend to apply to list the pre-funded warrants on any securities exchange or nationally recognized
trading system, including Nasdaq. Without an active market, the liquidity of the pre-funded warrants will be limited.
USE OF PROCEEDS
We estimate that the
net proceeds from the sale of the securities offered by this prospectus supplement will be approximately $799,979. We intend to
use the net proceeds of this offering for working capital and general corporate purposes. As of the date of this prospectus supplement,
we cannot specify with certainty all of the particular uses for the net proceeds we will have upon completion of the offering.
Accordingly, we will retain broad discretion over the use of these proceeds.
DESCRIPTION OF SECURITIES WE ARE OFFERING
Common Stock
For
a description of the common stock being offered hereby, please see “Description of Securities We May Offer” in the
accompanying prospectus.
Pre-Funded Warrants
The following
is a brief summary of certain terms and conditions of the pre-funded warrants being offered by this prospectus
supplement. The following description is subject in all respects to the provisions contained in the Warrants.
Form
The Warrants
will be issued as individual warrant certificates to the investors. The form of pre-funded warrant will be
filed as an exhibit to our Current Report on Form 8-K that we will file with the SEC in connection with this
offering.
Term
The Warrants
do not have a termination date and will terminate only when they are exercised in full.
Exercisability
The Warrants are
exercisable at any time after their original issuance. The Warrants will be exercisable, at the option of each holder,
in whole or in part by delivering to us a duly executed exercise notice and by payment in full of the exercise price in immediately
available funds for the number of shares of common stock purchased upon such exercise. In addition, the holder may elect to exercise
the Warrants through a cashless exercise, in which the holder would receive upon such exercise the net number of shares of common
stock determined according to the formula set forth in the Warrant. No fractional shares of common stock will be
issued in connection with the exercise of a Warrant.
Exercise
limitations
Under the Warrants, we
may not effect the exercise of any Warrants, and a holder will not be entitled to exercise any portion of any pre-funded warrant, which,
upon giving effect to such exercise, would cause the holder, together with its affiliates, to beneficially own more than 4.99%
of the outstanding shares of our common stock immediately after such exercise, provided that a holder may increase or decrease
such beneficial ownership limitation
upon notice to us, but in no event in excess of 9.99%,
provided that any increase in such beneficial ownership limitation shall not be effective until 61 days following notice to us
.
Exercise
price
The exercise price
per share of our common stock purchasable upon the exercise of the Warrants is $0.0001 per share of common stock. The exercise
price of the Warrants and the number of shares of our common stock issuable upon exercise of the Warrants is subject
to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting our common stock and also upon any distributions of assets, including cash, stock or other property
to our stockholders.
Transferability
Subject to applicable
laws, the Warrants may be offered for sale, sold, transferred or assigned without our consent.
Exchange
listing
We do not plan
on applying to list the Warrants on Nasdaq, any other national securities exchange or any other nationally recognized
trading system.
Fundamental
transactions
In the event of
a fundamental transaction, as described in the Warrants and generally including any reorganization, recapitalization
or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties
or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common
stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock,
upon consummation of such a fundamental transaction, the holders of the Warrants will be entitled to receive upon
exercise of the Warrants the kind and amount of securities, cash or other property that the holders would have received
had they exercised the Warrants immediately prior to such fundamental transaction without regard to any limitations on exercised
contained in the Warrants.
No rights
as a stockholder
Except by virtue
of such holder’s ownership of shares of our common stock, the holder of a Warrant does not have the rights
or privileges of a holder of our common stock, including any voting rights, until the holder exercises the Warrant.
PLAN OF DISTRIBUTION
We are offering
105,731 shares
of our common stock and pre-funded warrants to purchase up to 201,961 shares of common stock, pursuant to the terms and conditions
of the Purchase Agreement, as amended by the Amendment on June 6, 2019.
Pursuant to the Purchase Agreement, as amended on June 6, 2019, and subject to the terms and conditions
therein, the Purchaser has agreed to purchase
105,731
shares of the Company’s common stock at a purchase price of $2.60 per share, and Warrants to purchase up to 201,961 shares
of Common Stock at a purchase price of $2.5999 per Warrant, which represents the per Share purchase price, less a $0.0001 per share
exercise price for each of the Warrants. The Company sold the Shares and Warrants for aggregate gross proceeds of approximately
$799,979, which transaction is expected to close on June 7, 2019. The Amendment represents the mutual intent of the parties prior to the execution of the Purchase Agreement,
which was to provide for a 4.99% beneficial ownership limitation rather than a 9.99% limitation.
We are registering
the Shares, the Warrants and the shares of common stock underlying the Warrants. The Shares and when issued, the shares of common
stock issuable upon exercise of the Warrants, will be freely tradeable securities. The Shares will be listed for trading on the
Nasdaq Capital Market and when issued, the shares of common stock issuable upon exercise of the Warrants will be listed for trading
on the Nasdaq Capital Market. The Warrants will not be listed for trading on any national securities exchange.
The Warrants are immediately
exercisable for $0.0001 per share until exercised in full, except that a holder will not have the right to exercise any portion
of the Warrant if the holder (together with its affiliates) would beneficially own in excess of 4.99% of the number of shares of
Common Stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance
with the terms of the Warrants. However, any holder may increase or decrease such beneficial ownership limitation to any other
percentage upon notice to the Company, but in no event in excess of 9.99%, provided that any increase in such beneficial ownership
limitation shall not be effective until 61 days after such notice. The Warrants may also be exercisable on a “cashless”
basis.
We expect to deliver
the shares of our common stock being offered pursuant to this prospectus supplement on or about June 7, 2019.
We
do not know of any existing agreements between any stockholder, broker, dealer, underwriter or agent relating to the sale or distribution
of the Shares and Warrants.
This
prospectus supplement shall not constitute an offer to sell or a solicitation of an offer to buy any securities other than the
Shares and Warrants issuable to the Purchaser, nor shall there be any offer, solicitation or sale of the securities in any state
or jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification of the securities
under the securities laws of such state or jurisdiction. We are not making the offering in any state or other jurisdiction in which
it is unlawful to do so, nor are we distributing or accepting any offers to purchase any common stock from securityholders who
are residents of those states or other jurisdictions or who are otherwise prohibited by federal, state or foreign laws or regulations
from accepting such offers.
LEGAL MATTERS
The validity of the
securities offered by this prospectus supplement will be passed upon for us by Ellenoff Grossman & Schole LLP, New York,
New York.
EXPERTS
Marcum LLP, an independent
registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K
for the year ended December 31, 2018, as set forth in their report dated March 12, 2019, which is incorporated by reference in
this prospectus and elsewhere in the registration statement. Our consolidated financial statements are incorporated by reference
in reliance on Marcum LLP’s report, given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement
is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information
set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or
other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by reference into this prospectus supplement for a copy of such
contract, agreement or other document. Because we are subject to the information and reporting requirements of the Securities Exchange
Act of 1934, as amended, or the Exchange Act, we file annual, quarterly and current reports, proxy statements and 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.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
We are “incorporating
by reference” certain documents we file with the SEC, which means that we can disclose important information to you by referring
you to those documents. The information in the documents incorporated by reference is considered to be part of this prospectus
supplement. Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus
supplement will automatically update and supersede information contained in this prospectus supplement, including information in
previously filed documents or reports that have been incorporated by reference in this prospectus supplement, to the extent the
new information differs from or is inconsistent with the old information. We have filed or may file the following documents with
the SEC and they are incorporated herein by reference as of their respective dates of filing:
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Our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 12, 2019;
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Our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2019, as filed with the SEC
on May 15, 2019;
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Our Current Reports on Form 8-K filed with the SEC on January
17, 2019, February 6, 2019, April
16, 2019, May 9, 2019, May
16, 2019 and May 31, 2019;
and
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The description of certain capital stock contained in our Registration Statement 8-A filed on January 30, 2013, as amended on June 12, 2017 and as it may further be amended from time to time.
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All documents that
we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities
offered under this prospectus supplement have been sold, or that deregisters all securities then remaining unsold, will be deemed
to be incorporated in this registration statement by reference and to be a part hereof from the date of filing of such documents.
Any statement contained
in a document incorporated or deemed to be incorporated by reference in this prospectus supplement shall be deemed modified, superseded
or replaced for purposes of this prospectus supplement to the extent that a statement contained in this prospectus supplement,
or in any subsequently filed document that also is deemed to be incorporated by reference in this prospectus supplement, modifies,
supersedes or replaces such statement. Any statement so modified, superseded or replaced shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this prospectus supplement. None of the information that we disclose under Items
2.02 or 7.01 of any Current Report on Form 8-K or any corresponding information, either furnished under Item 9.01 or included as
an exhibit therein, that we may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included
in, this prospectus supplement, except as otherwise expressly set forth in the relevant document. Subject to the foregoing, all
information appearing in this prospectus supplement is qualified in its entirety by the information appearing in the documents
incorporated by reference.
You may requests, orally
or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such exhibits are
specifically incorporate by reference), by contacting Anthony Hayes, c/o Spherix Corporation, at Spherix Incorporated, at One Rockefeller
Plaza, 11th Fl., New York, NY 10020. Our telephone number is (212) 745-1374. Information about us is also available at our website
at
http://www.spherix.com
. However, the information in our website is not a part of this prospectus and is not incorporated
by reference.
Prospectus
SPHERIX
INCORPORATED
$30,000,000
COMMON
STOCK
PREFERRED
STOCK
PURCHASE
CONTRACTS
WARRANTS
SUBSCRIPTION
RIGHTS
DEPOSITARY
SHARES
DEBT
SECURITIES
UNITS
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warrants
to purchase our securities;
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subscription
rights to purchase any of the foregoing securities;
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secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness
which may be senior debt securities, senior subordinated debt securities or subordinated
debt securities, each of which may be convertible into equity securities; or
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units
comprised of, or other combinations of, the foregoing securities.
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We
may offer and sell these securities separately or together, in one or more series or classes and in amounts, at prices and on
terms described in one or more offerings. We may offer securities through underwriting syndicates managed or co-managed
by one or more underwriters or dealers, through agents or directly to purchasers. The prospectus supplement for each offering
of securities will describe in detail the plan of distribution for that offering. For general information about the distribution
of securities offered, please see “Plan of Distribution” in this prospectus.
Each
time our securities are offered, we will provide a prospectus supplement containing more specific information about the particular
offering and attach it to this prospectus. The prospectus supplements may also add, update or change information contained in
this prospectus.
This prospectus may not be used to offer or sell securities without a prospectus supplement which includes
a description of the method and terms of this offering.
Our
common stock is quoted on the Nasdaq Capital Market under the symbol “SPEX.” The last reported sale price of our common
stock on The NASDAQ Capital Market on January 8, 2018 was $1.36 per share. The aggregate market value of our outstanding common
stock held by non-affiliates is $8,428,883 based on 6,234,898 shares of outstanding common stock, of which 6,197,708 shares are
held by non-affiliates, and a per share price of $1.36 which was the closing sale price of our common stock as quoted on the NASDAQ
Capital Market on January 8, 2018. During the 12 calendar month period that ends on, and includes, the date of this prospectus,
we have not offered and sold any of our securities pursuant to General Instruction I.B.6 of Form S-3.
If
we decide to seek a listing of any preferred stock, purchase contracts, warrants, subscriptions rights, depositary shares, debt
securities or units offered by this prospectus, the related prospectus supplement will disclose the exchange or market on which
the securities will be listed, if any, or where we have made an application for listing, if any.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 6 and the risk factors in our
most recent Annual Report on Form 10-K, which is incorporated by reference herein, as well as in any other recently filed
quarterly or current reports and, if any, in the relevant prospectus supplement. We urge you to carefully read this
prospectus and the accompanying prospectus supplement, together with the documents we incorporate by reference, describing
the terms of these securities before investing.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this Prospectus is January 19, 2018.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or
SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may offer and sell, either
individually or in combination, in one or more offerings, any of the securities described in this prospectus, for total gross
proceeds of up to $30,000,000. This prospectus provides you with a general description of the securities we may offer. Each time
we offer securities under this prospectus, we will provide a prospectus supplement to this prospectus that will contain more specific
information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you
that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus
or in the documents that we have incorporated by reference into this prospectus.
We
urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized
for use in connection with a specific offering, together with the information incorporated herein by reference as described under
the heading “Incorporation of Documents by Reference,” before investing in any of the securities being offered. You
should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus
supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with
a specific offering. We have not authorized anyone to provide you with different or additional information. This prospectus is
an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do
so.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of
the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the section entitled “Where You Can Find Additional Information.”
This
prospectus contains, or incorporates by reference, trademarks, tradenames, service marks and service names of Spherix Incorporated.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and any accompanying prospectus supplement and the documents incorporated by reference herein may contain forward looking
statements that involve risks and uncertainties. All statements other than statements of historical fact contained in this
prospectus and any accompanying prospectus supplement and the documents incorporated by reference herein, including statements
regarding future events, our future financial performance, business strategy, and plans and objectives of management for future
operations, are forward-looking statements. We have attempted to identify forward-looking statements by terminology including
“anticipates,” “believes,” “can,” “continue,” “could,” “estimates,”
“expects,” “intends,” “may,” “plans,” “potential,” “predicts,”
“should,” or “will” or the negative of these terms or other comparable terminology. Although we do not
make forward looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy.
These statements are only predictions and involve known and unknown risks, uncertainties and other factors, including the risks
outlined under “Risk Factors” or elsewhere in this prospectus and the documents incorporated by reference herein,
which may cause our or our industry’s actual results, levels of activity, performance or achievements expressed or implied
by these forward-looking statements. Moreover, we operate in a highly regulated, very competitive, and rapidly changing environment.
New risks emerge from time to time and it is not possible for us to predict all risk factors, nor can we address the impact of
all factors on our business or the extent to which any factor, or combination of factors, may cause our actual results to differ
materially from those contained in any forward-looking statements.
We
have based these forward-looking statements largely on our current expectations and projections about future events and financial
trends that we believe may affect our financial condition, results of operations, business strategy, short term and long term
business operations, and financial needs. These forward-looking statements are subject to certain risks and uncertainties that
could cause our actual results to differ materially from those reflected in the forward looking statements. Factors that could
cause or contribute to such differences include, but are not limited to, those discussed in this prospectus, and in particular,
the risks discussed below and under the heading “Risk Factors” and those discussed in other documents we file with
the SEC. The following discussion should be read in conjunction with the consolidated financial statements for the fiscal years
ended December 31, 2016 and 2015 and notes incorporated by reference herein. We undertake no obligation to revise or publicly
release the results of any revision to these forward-looking statements, except as required by law. In light of these risks, uncertainties
and assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could
differ materially and adversely from those anticipated or implied in the forward-looking statement.
You
should not place undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus.
Except as required by law, we undertake no obligation to update or revise publicly any of the forward-looking statements after
the date of this prospectus to conform our statements to actual results or changed expectations.
Any
forward-looking statement you read in this prospectus, any prospectus supplement or any document incorporated by reference reflects
our current views with respect to future events and is subject to these and other risks, uncertainties and assumptions relating
to our operations, operating results, growth strategy and liquidity. You should not place undue reliance on these forward-looking
statements because such statements speak only as to the date when made. We assume no obligation to publicly update or revise these
forward-looking statements for any reason, or to update the reasons actual results could differ materially from those anticipated
in these forward-looking statements, even if new information becomes available in the future, except as otherwise required by
applicable law. You are advised, however, to consult any further disclosures we make on related subjects in our reports on Forms
10-Q, 8-K and 10-K filed with the SEC. You should understand that it is not possible to predict or identify all risk factors.
Consequently, you should not consider any such list to be a complete set of all potential risks or uncertainties.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the
information that you should consider before investing in our Company. You should carefully read the entire prospectus,
including all documents incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,”
“Information With Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and the financial statements and related notes thereto contained herein or otherwise incorporated
by reference hereto, before making an investment decision.
As
used herein, and any amendment or supplement hereto, unless otherwise indicated, “we,” “us,” “our,”
the “Company,” or “Spherix” means Spherix Incorporated and its wholly-owned subsidiaries. Unless
otherwise indicated, all references in this prospectus to “dollars” or “$” refer to US dollars.
Business
Overview
Spherix
Incorporated is a technology development company committed to the fostering of innovative ideas. To that end, we own patented
and unpatented intellectual property in the technology sphere. Spherix Incorporated was formed in 1967 as a scientific
research company and for much of our history pursued drug development, including through Phase III clinical studies, which were
largely discontinued in 2012. In 2012 and 2013, we shifted our focus to being a firm that owns, develops, acquires
and monetizes intellectual property assets. Such monetization includes, but is not limited to, acquiring IP from patent holders
in order to maximize the value of the patent holdings by conducting and managing a licensing campaign, commercializing the IP,
or through the settlement and litigation of patents. We intend to generate revenues and related cash flows from the
granting of intellectual property rights for the use of patented technologies that we own, that we manage for others, or that
others manage on our behalf by agreement. To date, we have generated minimal revenues and no assurance can be provided that our
business model will be successful.
In
July 2013, we acquired 7 patents in the field of mobile communications from Rockstar Consortium US LP (“Rockstar”). This
acquisition represented the first transaction believed to have been completed by Rockstar with any publicly traded company. Rockstar
was launched in 2011 as an intellectual property licensing company to manage a patent portfolio related to the pre-bankruptcy
technology and businesses of Nortel Networks (“Nortel”). Rockstar was formed by Apple, Inc., Microsoft
Corporation, Sony Corporation, Blackberry Limited and LM Ericsson Telephone Company.
In
September 2013, we acquired North South Holdings, Inc. (“North South”) and its 222 patents in the fields of wireless
communications, satellite, solar, and radio frequency and 2 patents in the field of pharmaceutical distribution. The 222 patents
were developed by Harris Corporation, a leader in defense communications and electronics and acquired by North South prior to
our acquisition of North South.
In
December 2013, we acquired an additional 101 patents and patent applications from Rockstar in consideration for approximately
$60 million of our securities consisting of common stock and preferred stock. The patents had been developed by Nortel
and acquired by Rockstar following Nortel’s bankruptcy in 2011. The December 2013 acquisition included patents
covering internet access and video and data transmission, among other things. We believe that many of these Nortel/Rockstar
patents are standard essential patents, meaning they potentially cover various industry standards in wide use (although there
is no assurance that a court or third-party would agree with such description).
Since
our shift in focus to an intellectual property monetization platform, we have not generated any significant revenues. We
have incurred losses from operations for the years ended December 31, 2016 and 2015 of $8.6 million and $52.0 million, respectively. Our
net income attributable to common stockholders was approximately $25.0 million, including $31.5 million of deemed capital contribution
on extinguishment of preferred stock for the year ended December 31, 2016. Our accumulated deficit was $141.7 million
at December 31, 2016.
On
November 23, 2015, we and RPX Corporation (“RPX”) entered into a Patent License Agreement (the “RPX License
Agreement”) under which the Company granted RPX the right to sublicense various patent license rights to certain RPX clients.
The consideration to the Company included: (i) the transfer to the Company for cancellation of its remaining outstanding Series
I Redeemable Convertible Preferred Stock (the “Series I Preferred Stock”) then held by RPX, as to which a $5,000,000
mandatory redemption payment would have been due from the Company on or by December 31, 2015; (ii) the transfer to the Company
for cancellation of 13%, or 57,076 shares, of its Series H Convertible Preferred Stock (the “Series H Preferred Stock”)
then held by RPX, having a total carrying amount of $4,765,846 at the time the stock was issued to Rockstar; (iii) cancellation
of the only outstanding security interest on 101 of the Company’s patents and patent applications acquired from Rockstar
that originated at Nortel, which security interest had previously been transferred to RPX by Rockstar (“RPX Security Interest”);
and (iv) $300,000 in cash to the Company.
In
consideration of the above, we granted RPX the rights to grant: (i) to Juniper Networks, Inc. (“Juniper”), a non-sublicensable,
non-transferrable sublicense solely to use the six patents that had been asserted against Juniper by the Company (“Asserted
Patents”); and (ii) to Apple, Blackberry, Cisco, Google, Huawei, Ericsson, Microsoft and Sony, to the extent those parties
did not already have licenses to our patents, a non-sublicensable, non-transferrable sublicense to use our existing portfolio.
Prior to our ownership of the patents originating at Nortel, each of Apple, Blackberry, Ericsson, Microsoft and Sony had previously
been granted full licenses to those patents. In addition, we separately granted Huawei a license with respect to Huawei’s
network routers and switches. We also granted RPX the rights to grant Cisco and Google a sublicense under patents transferred
to us through November 23, 2017. We have since dismissed our then-existing litigations against Cisco and Juniper and Cisco requested
dismissal of its two petitions requesting
inter partes
re-examination (“IPR”) of certain of our patents
at the Patent Trial and Appeal Board of the United States Patent and Trademark Office.
Further,
we agreed, until May 23, 2016 (the “Standstill Period”) that: (a) we and RPX would engage in good faith negotiations
for the grant of additional license rights to RPX’s other members in exchange for additional consideration to us; (b) we
would not divest, transfer, or exclusively license any of our current patents; (c) neither RPX nor any RPX affiliate would challenge,
or knowingly and intentionally assist others in challenging, the validity, enforceability, or patentability of any of our patents
in any court or administrative agency having jurisdiction to consider the issue; and (d) we would not bring an action against
current RPX clients for patent infringement.
Following
the Standstill Period, as a result of the release of the RPX Security Interest, the patents may be leveraged, divested, transferred
or exclusively licensed in a manner that is beneficial to us and our stockholders. We retained the right to bring claims under
the patents at any time against other parties who are not licensees or beneficiaries under the RPX License. We also retained rights,
following the Standstill Period, to bring claims under the patents against current RPX clients who did not become licensees or
beneficiaries during the Standstill Period and, with respect to Juniper, under all of the patents other than the six Asserted
Patents.
In
March 2016, we entered into an agreement (which was subsequently amended in April and May 2016) with Equitable IP Corporation
(“Equitable”) to facilitate the monetization of our patents (the “Monetization Agreement”). Pursuant to
the Monetization Agreement, the Company is working together with Equitable to further develop and revise our ongoing litigation
plan. See Note 4 to the Company’s audited financial statements for additional details surrounding the Monetization Agreement.
On
May 23, 2016, we and RPX, entered into a second, separate Patent License Agreement (the “Second RPX License”) under
which we granted RPX the right to sublicense various patent rights only to current RPX clients (as of May 23, 2016). In exchange
for the rights we granted under the Second RPX License, we received the following consideration: (i) a cash payment made to us
in May 2016 in the amount of $4,355,000; and (ii) cancellation of the remaining 381,967 shares of our outstanding Series H Convertible
Preferred Stock currently held by RPX, having a total carrying amount of $31,894,244 at the time the stock was issued to Rockstar.
In
consideration of the above, we granted RPX the rights to grant to its current clients: (i) a fully paid portfolio license, to
the extent such parties did not already have licenses to the Company’s patents; (ii) a covenant-not-to-sue current RPX clients
for supply of chipsets; (iii) a standstill of litigation involving any patents acquired in the next five years.
In
connection with the Second RPX License, we also granted to Alcatel-Lucent a license to the portfolio acquired from North South.
Under
a separate agreement between us and RPX, we granted RPX the ability to grant to VTech Telecommunications Ltd. (“VTech”)
a sublicense for a fully paid portfolio license in exchange for an additional $20,000 in cash consideration.
The
license granted under the terms of the RPX License described herein does not extend to entities/companies that are not clients
of RPX and provide chipsets or other hardware to current RPX clients.
In
January of 2017, we settled our patent litigation against Uniden Corporation and Uniden America Corporation (collectively “Uniden”)
and granted Uniden a license limited to the patents we originally asserted against Uniden and VTech, including U.S. Patent Nos.
5,581,599 (the “599 Patent”); 5,752,195; 5,892,814; 6,614,899; and 6,965,614. On July 25, 2017, after full briefing
and oral argument, the Federal Circuit issued an order affirming the PTAB’s decision relating to the ‘599 Patent.
Recent
Developments
On
June 30, 2017, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Hoth Therapeutics,
Inc., a Nevada corporation (“Hoth”), for the purchase of an aggregate of 6,800,000 shares of common stock, par value
$0.0001 (the “Shares”), of Hoth, for a purchase price of $675,000. As of June 30, 2017, Hoth had a total of 17,000,000
shares of common stock issued and outstanding. Hoth is a development stage biopharmaceutical company focused on unique targeted
therapeutics for patients suffering from indications such as atopic dermatitis, also known as eczema. Hoth’s primary asset
is a sublicense agreement with Chelexa Biosciences, Inc. (“Chelexa”) pursuant to which Chelexa has granted Hoth an
exclusive sublicense to use its BioLexa products for the treatment of eczema. Hoth intends to develop BioLexa’s applications
in the aesthetic dermatology field to help treat and reduce post-procedure infections, accelerate healing and improve clinical
outcomes for patients undergoing procedures. Hoth will be implementing FDA testing procedures for BioLexa. In addition to the
Purchase Agreement, the Company and Hoth entered into a Registration Rights Agreement, pursuant to which Hoth is obligated to
register for resale on a registration statement on Form S-1 under the Securities Act of 1933, as amended, or the Securities Act,
all of the shares, no later than June 30, 2018. Further, the Company, Hoth and Hoth’s existing shareholders have entered
into a Shareholders Agreement, pursuant to which Spherix shall have a right to appoint one director to the board of directors
of Hoth for so long as the Company holds at least 10% of the issued and outstanding common stock of Hoth.
On
July 18, 2017, the Company entered into an underwriting agreement with Laidlaw & Company (UK) Ltd. with respect to the issuance
and sale of an aggregate of 1,250,000 shares of the Company’s common stock, par value $0.0001 per share, in a firm commitment
underwritten public offering which closed on July 24, 2017. Each share was sold for a price of $2.00 for aggregate gross proceeds
of $2,500,000, with net proceeds of approximately $2.1 million, after deducting the underwriting discounts and commissions (equivalent
to 8% of gross proceeds) and estimated offering expenses.
Corporate
Information
Our
principal executive offices are located at One Rockefeller Plaza, New York, NY 10020, our telephone number is (212) 745-1374,
and our Internet website address www.spherix.com. The information on our website is not a part of, or incorporated in, this prospectus
supplement.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully
consider the risk factors we describe in any prospectus supplement and in any related free writing prospectus for a specific offering
of securities, as well as those incorporated by reference into this prospectus or such prospectus supplement. You should
also carefully consider other information contained and incorporated by reference in this prospectus and any applicable prospectus
supplement, including our financial statements and the related notes thereto incorporated by reference in this prospectus. The
risks and uncertainties described in the applicable prospectus supplement and our other filings with the SEC incorporated by reference
herein are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently consider
immaterial may also adversely affect us. If any of the described risks occur, our business, financial condition or results of
operations could be materially harmed. In such case, the value of our securities could decline and you may lose all or part of
your investment.
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from these sales for working capital and general
corporate purposes, which includes, without limitation, investing in or acquiring companies that are synergistic with or complimentary
to our technologies, licensing activities related to our current and future product candidates and working capital, the development
of emerging technologies, investing in or acquiring companies that are developing emerging technologies, licensing activities,
or the acquisition of other businesses. The amounts and timing of these expenditures will depend on numerous factors, including
the development of our current business initiatives.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time to or through underwriters or dealers, through agents, or directly to one or more purchasers.
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities,
including without limitation, warrants, rights to purchase and subscriptions. In addition, the manner in which we may sell
some or all of the securities covered by this prospectus includes, without limitation, through:
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a
block trade in which a broker-dealer will attempt to sell as agent, but may position
or resell a portion of the block, as principal, in order to facilitate the transaction;
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purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; or
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ordinary
brokerage transactions and transactions in which a broker solicits purchasers.
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A
prospectus supplement or supplements with respect to each series of securities will describe the terms of the offering, including,
to the extent applicable:
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the
terms of the offering;
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the
name or names of the underwriters or agents and the amounts of securities underwritten
or purchased by each of them, if any;
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the
public offering price or purchase price of the securities or other consideration therefor,
and the proceeds to be received by us from the sale;
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any
delayed delivery requirements;
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any
over-allotment options under which underwriters may purchase additional securities from
us;
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any
underwriting discounts or agency fees and other items constituting underwriters’
or agents’ compensation
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any
discounts or concessions allowed or re-allowed or paid to dealers; and
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any
securities exchange or market on which the securities may be listed.
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The
offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may
be effected from time to time in one or more transactions, including privately negotiated transactions, either:
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at
a fixed price or prices, which may be changed;
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in
an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities
Act;
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at
prices related to such prevailing market prices; or
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Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
Underwriters
and Agents; Direct Sales
If
underwriters are used in a sale, they will acquire the offered securities for their own account and may resell the offered securities
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. We may offer the securities to the public through underwriting syndicates represented
by managing underwriters or by underwriters without a syndicate.
Unless
the prospectus supplement states otherwise, the obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will
be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment
option. Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may change from time
to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming
the underwriter, the nature of any such relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from
us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we
must pay for solicitation of these contracts in the prospectus supplement.
Dealers
We
may sell the offered securities to dealers as principals. The dealer may then resell such securities to the public either at varying
prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale.
Institutional
Purchasers
We
may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed
delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable
prospectus supplement or other offering materials, as the case may be, will provide the details of any such arrangement, including
the offering price and commissions payable on the solicitations.
We
will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial
and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification;
Other Relationships
We
may provide agents, underwriters, dealers and remarketing firms with indemnification against certain civil liabilities, including
liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect
to these liabilities. Agents, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with,
or perform services for, us in the ordinary course of business. This includes commercial banking and investment banking
transactions.
Market-Making;
Stabilization and Other Transactions
There
is currently no market for any of the offered securities, other than our common stock, which is quoted on the Nasdaq Capital Market.
If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price,
depending upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter
could inform us that it intends to make a market in the offered securities, such underwriter would not be obligated to do so,
and any such market-making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether
an active trading market will develop for the offered securities. We have no current plans for listing of the debt securities,
preferred stock, warrants or subscription rights on any securities exchange or quotation system; any such listing with respect
to any particular debt securities, preferred stock, warrants or subscription rights will be described in the applicable prospectus
supplement or other offering materials, as the case may be.
Any
underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales
in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions
involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution
is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters
may discontinue any of the activities at any time.
Any
underwriters or agents that are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions
in our common stock on the Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business
day prior to the pricing of the offering, before the commencement of offers or sales of our common stock. Passive market makers
must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered
when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above
that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Fees
and Commissions
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA
Rule 5121.
DESCRIPTION
OF SECURITIES WE MAY OFFER
General
This
prospectus describes the general terms of our capital stock. The following description is not complete and may not contain all
the information you should consider before investing in our capital stock. For a more detailed description of these securities,
you should read the applicable provisions of Delaware law and our amended and restated certificate of incorporation, as amended,
referred to herein as our certificate of incorporation, and our amended and restated bylaws, referred to herein as our bylaws.
When we offer to sell a particular series of these securities, we will describe the specific terms of the series in a supplement
to this prospectus. Accordingly, for a description of the terms of any series of securities, you must refer to both the prospectus
supplement relating to that series and the description of the securities described in this prospectus. To the extent the information
contained in the prospectus supplement differs from this summary description, you should rely on the information in the prospectus
supplement.
The
total number of shares of capital stock we are authorized to issue is 150,000,000 shares, of which (a) 100,000,000 are common
stock and (b) 50,000,000 are preferred stock.
We,
directly or through agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately,
up to $30,000,000 in the aggregate of:
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warrants
to purchase our securities;
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subscription
rights to purchase our securities;
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secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness
which may be senior debt securities, senior subordinated debt securities or subordinated
debt securities, each of which may be convertible into equity securities; or
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units
comprised of, or other combinations of, the foregoing securities.
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We
may issue the debt securities as exchangeable for or convertible into shares of common stock, preferred stock or other securities
that may be sold by us pursuant to this prospectus or any combination of the foregoing. The preferred stock may also be exchangeable
for and/or convertible into shares of common stock, another series of preferred stock or other securities that may be sold by
us pursuant to this prospectus or any combination of the foregoing. When a particular series of securities is offered, a
supplement to this prospectus will be delivered with this prospectus, which will set forth the terms of the offering and sale
of the offered securities.
Amended
and Restated Certificate of Incorporation
On
April 24, 2014, we filed an Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware,
which was previously approved by our stockholders at our annual meeting held on February 6, 2014. The Amended and Restated Certificate
of Incorporation, among other things, increased our authorized number of shares of common stock to 200,000,000 shares from 50,000,000
shares.
Additionally,
on April 23, 2014, we filed a Certificate of Elimination with the Secretary of State of the State of Delaware eliminating our
Series B Convertible Preferred Stock, Series E Convertible Preferred Stock and Series F Convertible Preferred Stock and returning
them to authorized but undesignated shares of our preferred stock.
On
March 4, 2016, the Company implemented a reverse stock split with a ratio of 1-for-19. The par value and other terms of the common
stock were not affected by the reverse stock split. In addition, the amendment to the Company’s certificate of incorporation
that effected the reverse stock split simultaneously reduced the number of authorized shares of common stock from 200,000,000
to 100,000,000.
Common
Stock
As
of January 8, 2018, there were 6,234,910 shares of common stock issued and 6,234,898 shares of common stock outstanding, held
of record by approximately 121 stockholders. Subject to preferential rights with respect to any outstanding preferred stock, all
outstanding shares of common stock are of the same class and have equal rights and attributes.
Subject
to the rights of the preferred stock, holders of common stock are entitled to receive such dividends as are declared by our board
of directors out of funds legally available for the payment of dividends. We presently intend to retain any earnings to fund the
development of our business. Accordingly, we do not anticipate paying any dividends on our common stock for the foreseeable future.
Any future determination as to declaration and payment of dividends will be made at the discretion of our board of directors.
In
the event of the liquidation, dissolution, or winding up of the Company, each outstanding share of our common stock will be entitled
to share equally in any of our assets remaining after payment of or provision for our debts and other liabilities.
Holders
of common stock are entitled to one vote per share on matters to be voted upon by stockholders. There is no cumulative voting
for the election of directors, which means that the holders of shares entitled to exercise more than fifty percent (50%) of the
voting rights in the election of directors are able to elect all of the directors.
Holders
of common stock have no preemptive rights to subscribe for or to purchase any additional shares of common stock or other obligations
convertible into shares of common stock which we may issue after the date of this prospectus.
All
of the outstanding shares of common stock are fully paid and non-assessable. Holders of our common stock are not liable for further
calls or assessments.
The
rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights
of the holders of shares of any series of preferred stock that we may designate in the future.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is VStock Transfer, LLC, with an address at 18 Lafayette Place, Woodmere, NY
11598.
Listing
Our
common stock is listed on the NASDAQ Capital Market under the symbol “SPEX”. We have not applied to list our common
stock on any other exchange or quotation system.
Limitations
on Directors’ Liability
Our
certificate of incorporation and bylaws contain provisions indemnifying our directors and officers to the fullest extent permitted
by Delaware law.
In
addition, as permitted by Delaware law, our certificate of incorporation provides that no director will be liable to us or our
stockholders for monetary damages for breach of the director’s fiduciary duty as a director. The effect of this provision
is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director
for breach of the director’s fiduciary duty as a director, except that a director will be personally liable for:
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any breach of his
or her duty of loyalty to us or our stockholders;
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acts or omissions
not in good faith which involve intentional misconduct or a knowing violation of law;
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the payment of dividends
or the redemption or purchase of stock in violation of Delaware law; or
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any transaction
from which the director derived an improper personal benefit.
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This
provision does not affect a director’s liability under the federal securities laws.
To
the extent that our directors, officers and controlling persons are indemnified under the provisions contained in our amended
and restated certificate of incorporation or Delaware law against liabilities arising under the Securities Act, we have 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.
Provisions
of our Certificate of Incorporation and Bylaws, our Shareholder Rights Plan, and Delaware Law that May Have an Anti-Takeover Effect
Certain
provisions set forth in our certificate of incorporation and bylaws, our Amended and Restated Shareholder Rights Plan, and Delaware
law could have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a
change in control, including changes a stockholder might consider favorable. Such provisions may also prevent or frustrate attempts
by our stockholders to replace or remove our management.
Certificate
of Incorporation and Bylaws
In
particular, our certificate of incorporation and bylaws, among other things:
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authorize our board
of directors to issue, without further action by the stockholders, up to 50,000,000 shares of undesignated preferred stock;
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provide that stockholders
must provide advance notice to nominate persons for election to our board of directors or submit proposals for consideration
at stockholder meetings;
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specify that special
meetings of our stockholders can be called only by our board of directors or by any officer instructed by the board of directors
to a call a special meeting;
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provide that vacancies
on the board of directors may be filled by a majority of directors in office, although less than a quorum, or by the sole
remaining director; and
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provide the board
of directors with the ability to alter the bylaws without stockholder approval.
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Shareholder
Rights Plan
On
January 1, 2013, and as amended and restated on June 9, 2017, we adopted a stockholder rights plan in which rights to purchase
shares of Series A Preferred Stock were distributed as a dividend at the rate of one right for each share of common stock. The
rights are designed to guard against partial tender offers and other abusive and coercive tactics that might be used in an attempt
to gain control of Spherix or to deprive our stockholders of their interest in the long-term value of Spherix. These rights seek
to achieve these goals by forcing a potential acquirer to negotiate with our board of directors (or go to court to try to force
the Board of Directors to redeem the rights), because only the Board of Directors can redeem the rights and allow the potential
acquirer to acquire our shares without suffering very significant dilution. However, these rights also could deter or prevent
transactions that stockholders deem to be in their interests, and could reduce the price that investors or an acquirer might be
willing to pay in the future for shares of our common stock.
Each
right entitles the registered holder to purchase one nineteen-hundredth of a share (a “Unit”) of our Series A Preferred
Stock. Each Unit of Series A Preferred Stock will be entitled to an aggregate dividend of 100 times the dividend declared per
share of common stock. In the event of liquidation, the holders of the Units of Series A Preferred Stock will be entitled to an
aggregate payment of 100 times the payment made per share of common stock. Each Unit of Series A Preferred Stock will have 100
votes, voting together with the common stock. Finally, in the event of any merger, consolidation or other transaction in which
shares of common stock are exchanged, each Unit of Series A Preferred Stock will be entitled to receive 100 times the amount received
per share of common stock. These rights are protected by customary anti-dilution provisions.
The
rights will be exercisable only if a person or group acquires ten percent (10%) or more of our common stock (subject to certain
exceptions stated in the plan) or announces a tender offer the consummation of which would result in ownership by a person or
group of ten percent (10%) or more of our common stock. Our board of directors may redeem the rights at a price of $0.001 per
right. The stockholder rights plan provides that the rights will expire at the close of business on December 31, 2020 unless the
expiration date is extended or unless the rights are earlier redeemed or exchanged by the Company.
Delaware
Takeover Statute
Section
203 of the DGCL prohibits a Delaware corporation that is a public company from engaging in any “business combination”
(as defined below) with any “interested stockholder” (defined generally as an entity or person beneficially owning
15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with such entity or person)
for a period of three years following the date that such stockholder became an interested stockholder, unless:
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before such date,
the board of directors of the corporation approved either the business combination or the transaction that resulted in the
stockholder becoming an interested stockholder;
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upon consummation
of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the number of shares outstanding those shares owned by persons who are directors and also officers and by employee
stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to
the plan will be tendered in a tender or exchange offer; or
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on or subsequent
to such date, the business combination is approved by the board of directors and authorized at an annual or special meeting
of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that
is not owned by the interested stockholder.
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Section
203 of the DCGL defines “business combination” to include:
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any merger or consolidation
involving the corporation and the interested stockholder;
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any sale, transfer,
pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject to certain
exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to
the interested stockholder;
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any transaction
involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of
the corporation beneficially owned by the interested stockholder; or
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the receipt by the
interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by
or through the corporation.
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Preferred
Stock
Our
amended and restated certificate of incorporation empowers our board of directors, without action by our shareholders, to issue
up to 50,000,000 shares of preferred stock from time to time in one or more series, which preferred stock may be offered by this
prospectus and supplements thereto.
The
Delaware General Corporation Law provides that the holders of preferred stock will have the right to vote separately as a class
on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any
voting rights provided for in the applicable certificate of designation.
We will fix the rights,
preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation relating to that
series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from a current report on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the terms
of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include any or all of the following, as required:
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the
title and stated value;
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the
number of shares we are offering;
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the
liquidation preference per share;
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the
dividend rate, period and payment date and method of calculation for dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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any
contractual limitations on our ability to declare, set aside or pay any dividends;
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the
procedures for any auction and remarketing, if any;
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the
provisions for a sinking fund, if any;
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and
repurchase rights;
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any
listing of the preferred stock on any securities exchange or market;
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be
calculated, and the conversion period;
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period;
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voting
rights, if any, of the preferred stock;
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preemptive
rights, if any;
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restrictions
on transfer, sale or other assignment, if any;
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whether
interests in the preferred stock will be represented by depositary shares;
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a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
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any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
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If
we issue shares of preferred stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and
non-assessable.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect
the voting power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed
to delay or prevent a change in control of our Company or make removal of management more difficult. Additionally, the issuance
of preferred stock could have the effect of decreasing the market price of our common stock.
Existing
Preferred Stock
The
Company had designated separate series of its capital stock as of September 30, 2017, December 31, 2016 and December 31, 2015
as summarized below:
|
|
|
Number
of Shares Issued
and Outstanding as of
|
|
|
|
|
|
|
|
|
|
September
30, 2017
|
|
|
December
31,
2016
|
|
|
December
31,
2015
|
|
|
Par
Value
|
|
|
Conversion
Ratio
|
|
Series
“A”
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
0.0001
|
|
|
N/A
|
|
Series
“C”
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0001
|
|
|
0.05:1
|
|
Series
“D”
|
|
|
4,725
|
|
|
|
4,725
|
|
|
|
4,725
|
|
|
|
0.0001
|
|
|
0.53:1
|
|
Series “D-1”
|
|
|
834
|
|
|
|
834
|
|
|
|
834
|
|
|
|
0.0001
|
|
|
0.53:1
|
|
Series “F-1”
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0001
|
|
|
0.05:1
|
|
Series
“H”
|
|
|
—
|
|
|
|
—
|
|
|
|
381,967
|
|
|
|
0.0001
|
|
|
0.53:1
|
|
Series
“I”
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0001
|
|
|
1.05:1
|
|
Series
“J”
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0001
|
|
|
0.05:1
|
|
Series
“K”
|
|
|
—
|
|
|
|
—
|
|
|
|
1,240
|
|
|
|
0.0001
|
|
|
263.16:1
|
On
April 23, 2014, the Company filed a Certificate of Elimination with the Secretary of State of the State of Delaware eliminating
its Series B Convertible Preferred Stock, Series E Convertible Preferred Stock and Series F Convertible Preferred Stock and returning
them to authorized but undesignated shares of preferred stock. No shares of the foregoing series of preferred stock are outstanding
as of the date hereof.
The
Company previously designated, authorized and issued shares of Series C Preferred Stock, Series F-1 Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock and Series J Preferred Stock that have since been converted into shares of the Company’s
common stock or have been cancelled and are no longer outstanding.
Series
A Preferred Stock
Our
board of directors has designated 500,000 shares of our preferred stock as Series A Participating Preferred Stock (“Series
A Preferred Stock”).
On
January 1, 2013, and as amended and restated on June 9, 2017, we adopted a stockholder rights plan in which rights to purchase
shares of Series A Preferred Stock were distributed as a dividend at the rate of one right for each share of common stock. The
rights are designed to guard against partial tender offers and other abusive and coercive tactics that might be used in an attempt
to gain control of Spherix or to deprive our stockholders of their interest in the long-term value of Spherix. These rights seek
to achieve these goals by forcing a potential acquirer to negotiate with our board of directors (or go to court to try to force
the Board of Directors to redeem the rights), because only the Board of Directors can redeem the rights and allow the potential
acquirer to acquire our shares without suffering very significant dilution. However, these rights also could deter or prevent
transactions that stockholders deem to be in their interests, and could reduce the price that investors or an acquirer might be
willing to pay in the future for shares of our common stock.
Each
right entitles the registered holder to purchase one one-hundredth of a share (a “Unit”) of our Series A Preferred
Stock. Each Unit of Series A Preferred Stock will be entitled to an aggregate dividend of 100 times the dividend declared per
share of common stock. In the event of liquidation, the holders of the Units of Series A Preferred Stock will be entitled to an
aggregate payment of 100 times the payment made per share of common stock. Each Unit of Series A Preferred Stock will have 100
votes, voting together with the common stock. Finally, in the event of any merger, consolidation or other transaction in which
shares of common stock are exchanged, each Unit of Series A Preferred Stock will be entitled to receive 100 times the amount received
per share of common stock. These rights are protected by customary anti-dilution provisions.
The
rights will be exercisable only if a person or group acquires ten percent (10%) or more of our common stock (subject to certain
exceptions stated in the plan) or announces a tender offer the consummation of which would result in ownership by a person or
group of ten percent (10%) or more of our common stock. Our board of directors may redeem the rights at a price of $0.001 per
right. The rights will expire at the close of business on December 31, 2020 unless the expiration date is extended or unless the
rights are earlier redeemed or exchanged by the Company.
As
of September 30, 2017, December 2016, and December 2015, no shares of Series A Preferred Stock were issued and outstanding.
Series
D Convertible Preferred Stock
In
connection with the acquisition of North South’s patent portfolio in September 2013, the Company issued 1,379,685 shares
of its Series D Convertible Preferred Stock (“Series D Preferred Stock”) to the stockholders of North South. Each
share of Series D Preferred Stock has a stated value of $0.0001 per share and is convertible into ten-nineteenths of a share of
common stock. Upon the liquidation, dissolution or winding up of the Company’s business, each holder of Series
D Preferred Stock shall be entitled to receive, for each share of Series D Preferred Stock held, a preferential amount in cash
equal to the greater of (i) the stated value or (ii) the amount the holder would receive as a holder of common stock on an “as
converted” basis. Each holder of Series D Preferred Stock shall be entitled to vote on all matters submitted
to its stockholders and shall be entitled to such number of votes equal to the number of shares of common stock such shares of
Series D Preferred Stock are convertible into at such time, taking into account the beneficial ownership limitations set forth
in the governing Certificate of Designation and the conversion limitations described below. At no time may shares of
Series D Preferred Stock be converted if such conversion would cause the holder to hold in excess of 4.99% of issued and outstanding
common stock, subject to an increase in such limitation up to 9.99% of the issued and outstanding common stock on 61 days’
written notice to the Company. The conversion ratio of the Series D Preferred Stock is subject to adjustment in the
event of stock splits, stock dividends, combination of shares and similar recapitalization transactions.
As
of September 30, 2017, December 2016, and December 2015, 4,725 shares of Series D Preferred Stock remained issued and outstanding.
Series
D-1 Convertible Preferred Stock
The
Company’s Series D-1 Convertible Preferred Stock (“Series D-1 Preferred Stock”) was established on November
22, 2013. Each share of Series D-1 Preferred Stock has a stated value of $0.0001 per share and is convertible into ten-nineteenths
of a share of common stock. Upon the liquidation, dissolution or winding up of the Company’s business, each holder
of Series D-1 Preferred Stock shall be entitled to receive, for each share of Series D-1 Preferred Stock held, a preferential
amount in cash equal to the greater of (i) the stated value or (ii) the amount the holder would receive as a holder of common
stock on an “as converted” basis. Each holder of Series D-1 Preferred Stock shall be entitled to vote on
all matters submitted to the Company’s stockholders and shall be entitled to such number of votes equal to the number of
shares of common stock such shares of Series D-1 Preferred Stock are convertible into at such time, taking into account the beneficial
ownership limitations set forth in the governing Certificate of Designation. At no time may shares of Series D-1 Preferred
Stock be converted if such conversion would cause the holder to hold in excess of 9.99% of issued and outstanding common stock. The
conversion ratio of the Series D-1 Preferred Stock is subject to adjustment in the event of stock splits, stock dividends, combination
of shares and similar recapitalization transactions. The Company commenced an exchange with holders of Series D Convertible
Preferred Stock pursuant to which the holders of the Company’s outstanding shares of Series D Preferred Stock acquired in
the Merger could exchange such shares for shares of the Company’s Series D-1 Preferred Stock on a one-for-one basis.
As
of September 30, 2017, December 2016, and December 2015, 834 shares of Series D-1 Preferred Stock remained issued and outstanding.
Purchase
Contracts
We
may issue purchase contracts, representing contracts obligating holders to purchase from us, and us to sell to the holders, a
specific or varying number of common stock, preferred stock, warrants, depositary shares, debt securities, warrants or any combination
of the above, at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate
holders to sell to us, a specific or varying number of common stock, preferred stock, warrants, depositary shares, debt securities,
or any combination of the above. The price of the securities and other property subject to the purchase contracts may be fixed
at the time the purchase contracts are issued or may be determined by reference to a specific formula set forth in the purchase
contracts. The purchase contracts may be issued separately or as a part of a unit that consists of (a) a purchase contract
and (b) one or more of the other securities that may be sold by us pursuant to this prospectus or any combination of the
foregoing, which may secure the holders’ obligations to purchase the securities under the purchase contract. The purchase
contracts may require us to make periodic payments to the holders or require the holders to make periodic payments to us. These
payments may be unsecured or prefunded and may be paid on a current or on a deferred basis. The purchase contracts may require
holders to secure their obligations under the contracts in a manner specified in the applicable prospectus supplement.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, forms of the purchase contracts and purchase contract agreement, if any.
The applicable prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is
being delivered, including, to the extent applicable, the following:
|
|
●
|
|
whether
the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to
purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining
those amounts;
|
|
|
●
|
|
whether
the purchase contracts are to be prepaid or not;
|
|
|
●
|
|
whether
the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the
securities subject to purchase under the purchase contract;
|
|
|
●
|
|
any
acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; and
|
|
|
●
|
|
whether
the purchase contracts will be issued in fully registered or global form.
|
Warrants
We
may issue warrants to purchase our securities or other rights, including rights to receive payment in cash or securities based
on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the
foregoing. Warrants may be issued independently or together with any other securities that may be sold by us pursuant to this
prospectus or any combination of the foregoing and may be attached to, or separate from, such securities. To the extent warrants
that we issue are to be publicly-traded, each series of such warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement
relating to any warrants that we may offer will contain the specific terms of the warrants and a description of the material provisions
of the applicable warrant agreement, if any. These terms may include the following:
|
|
●
|
|
the
title of the warrants;
|
|
|
●
|
|
the
price or prices at which the warrants will be issued;
|
|
|
●
|
|
the
designation, amount and terms of the securities or other rights for which the warrants are exercisable;
|
|
|
●
|
|
the
designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants
issued with each other security;
|
|
|
●
|
|
the
aggregate number of warrants;
|
|
|
●
|
|
any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
|
|
|
●
|
|
the
price or prices at which the securities or other rights purchasable upon exercise of the warrants may be purchased;
|
|
|
●
|
|
if applicable,
the date on and after which the warrants and the securities or other rights purchasable upon exercise of the warrants will
be separately transferable;
|
|
|
●
|
|
a discussion
of any material U.S. federal income tax considerations applicable to the exercise of the warrants;
|
|
|
●
|
|
the
date on which the right to exercise the warrants will commence, and the date on which the right will expire;
|
|
|
●
|
|
the
maximum or minimum number of warrants that may be exercised at any time;
|
|
|
●
|
|
information
with respect to book-entry procedures, if any; and
|
|
|
●
|
|
any
other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
|
Exercise
of Warrants.
Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights,
at the exercise price stated or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time
up to the close of business on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in
such prospectus supplement. After the close of business on the expiration date, if applicable, unexercised warrants will become
void. Warrants may be exercised in the manner described in the applicable prospectus supplement. When the warrant holder makes
the payment and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent, if any,
or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the securities or other rights
that the warrant holder has purchased. If the warrant holder exercises less than all of the warrants represented by the warrant
certificate, we will issue a new warrant certificate for the remaining warrants.
Existing
Warrants
A
summary of warrant activity for the nine months ended September 30, 2017 is presented below:
|
|
|
|
Warrants
|
|
|
Weighted
Average Exercise Price
|
|
|
Total
Intrinsic Value
|
|
|
Weighted
Average Remaining Contractual Life
(in years)
|
|
|
Outstanding
as of December 31, 2016
|
|
|
|
1,250,311
|
|
|
$
|
9.21
|
|
|
$
|
—
|
|
|
|
3.91
|
|
|
Expired
|
|
|
|
(557
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding as of September
30, 2017
|
|
|
|
1,249,754
|
|
|
$
|
8.98
|
|
|
|
|
|
|
|
3.17
|
|
|
Exercisable as of September
30, 2017
|
|
|
|
1,249,754
|
|
|
$
|
8.98
|
|
|
$
|
—
|
|
|
|
3.17
|
|
Subscription
Rights
We
may issue rights to purchase our securities. The rights may or may not be transferable by the persons purchasing or receiving
the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or
more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities
remaining unsubscribed for after such rights offering. In connection with a rights offering to holders of our capital stock a
prospectus supplement will be distributed to such holders on the record date for receiving rights in the rights offering set by
us.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, forms of the subscription rights, standby underwriting agreement or other
agreements, if any. The prospectus supplement relating to any rights that we offer will include specific terms relating to the
offering, including, among other matters:
|
|
●
|
|
the
date of determining the security holders entitled to the rights distribution;
|
|
|
●
|
|
the
aggregate number of rights issued and the aggregate amount of securities purchasable upon exercise of the rights;
|
|
|
●
|
|
the
conditions to completion of the rights offering;
|
|
|
●
|
|
the
date on which the right to exercise the rights will commence and the date on which the rights will expire; and
|
|
|
●
|
|
any
applicable federal income tax considerations.
|
Each
right would entitle the holder of the rights to purchase the principal amount of securities at the exercise price set forth in
the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for
the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised
rights will become void.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate
properly completed and duly executed at the corporate trust office of the rights agent, if any, or any other office indicated
in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. If
less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to
persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including
pursuant to standby underwriting arrangements, as described in the applicable prospectus supplement.
Depositary
Shares
General.
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we decide to offer
fractional shares of our preferred stock, we will issue receipts for depositary shares. Each depositary share will represent a
fraction of a share of a particular series of our preferred stock, and the applicable prospectus supplement will indicate that
fraction. The shares of preferred stock represented by depositary shares will be deposited under a deposit agreement between us
and a depositary that is a bank or trust company that meets certain requirements and is selected by us. The depositary will be
specified in the applicable prospectus supplement. Each owner of a depositary share will be entitled to all of the rights and
preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional
shares of our preferred stock in accordance with the terms of the offering. We will file as exhibits to the registration statement
of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC,
forms of the deposit agreement, form of certificate of designation of underlying preferred stock, form of depositary receipts
and any other related agreements.
Dividends
and Other Distributions
.
The depositary will distribute all cash dividends or other cash distributions received
by it in respect of the preferred stock to the record holders of depositary shares relating to such preferred shares in proportion
to the numbers of depositary shares held on the relevant record date.
In
the event of a distribution other than in cash, the depositary will distribute securities or property received by it to the record
holders of depositary shares in proportion to the numbers of depositary shares held on the relevant record date, unless the depositary
determines that it is not feasible to make such distribution. In that case, the depositary may make the distribution by such method
as it deems equitable and practicable. One such possible method is for the depositary to sell the securities or property and then
distribute the net proceeds from the sale as provided in the case of a cash distribution.
Redemption
of Depositary Shares
.
Whenever we redeem the preferred stock, the depositary will redeem a number of depositary
shares representing the same number of shares of preferred stock so redeemed. If fewer than all of the depositary shares are to
be redeemed, the depositary shares to be redeemed will be selected by lot, pro rata or by any other equitable method as the depositary
may determine.
Voting
of Underlying Shares
. Upon receipt of notice of any meeting at which the holders of our preferred stock of any series
are entitled to vote, the depositary will mail the information contained in the notice of the meeting to the record holders of
the depositary shares relating to that series of preferred stock. Each record holder of the depositary shares on the record date
will be entitled to instruct the depositary as to the exercise of the voting rights represented by the number of shares of preferred
stock underlying the holder’s depositary shares. The depositary will endeavor, to the extent it is practical to do so, to
vote the number of whole shares of preferred stock underlying such depositary shares in accordance with such instructions. We
will agree to take all action that the depositary may deem reasonably necessary in order to enable the depositary to do so. To
the extent the depositary does not receive specific instructions from the holders of depositary shares relating to such preferred
shares, it will abstain from voting such shares of preferred stock.
Withdrawal
of Shares
. Upon surrender of depositary receipts representing any number of whole shares at the depositary’s office,
unless the related depositary shares previously have been called for redemption, the holder of the depositary shares evidenced
by the depositary receipts will be entitled to delivery of the number of whole shares of the related series of preferred stock
and all money and other property, if any, underlying such depositary shares. However, once such an exchange is made, the preferred
stock cannot thereafter be re-deposited in exchange for depositary shares. Holders of depositary shares will be entitled to receive
whole shares of the related series of preferred stock on the basis set forth in the applicable prospectus supplement. If the depositary
receipts delivered by the holder evidence a number of depositary shares representing more than the number of whole shares of preferred
stock of the related series to be withdrawn, the depositary will deliver to the holder at the same time a new depositary receipt
evidencing the excess number of depositary shares.
Amendment
and Termination of Depositary Agreement
.
The form of depositary receipt evidencing the depositary shares and
any provision of the applicable depositary agreement may at any time be amended by agreement between us and the depositary. We
may, with the consent of the depositary, amend the depositary agreement from time to time in any manner that we desire. However,
if the amendment would materially and adversely alter the rights of the existing holders of depositary shares, the amendment would
need to be approved by the holders of at least a majority of the depositary shares then outstanding.
The
depositary agreement may be terminated by us or the depositary if:
|
|
●
|
|
all
outstanding depositary shares have been redeemed; or
|
|
|
●
|
|
there
has been a final distribution in respect of the shares of preferred stock of the applicable series in connection with our
liquidation, dissolution or winding up and such distribution has been made to the holders of depositary receipts.
|
Resignation
and Removal of Depositary.
The depositary may resign at any time by delivering to us notice of its election to do so.
We may remove a depositary at any time. Any resignation or removal will take effect upon the appointment of a successor depositary
and its acceptance of appointment.
Charges
of Depositary.
We will pay all transfer and other taxes and governmental charges arising solely from the existence
of any depositary arrangements. We will pay all charges of each depositary in connection with the initial deposit of the preferred
shares of any series, the initial issuance of the depositary shares, any redemption of such preferred shares and any withdrawals
of such preferred shares by holders of depositary shares. Holders of depositary shares will be required to pay any other transfer
taxes.
Notices
.
Each depositary will forward to the holders of the applicable depositary shares all notices, reports and communications
from us which are delivered to such depositary and which we are required to furnish the holders of the preferred stock represented
by such depositary shares.
Miscellaneous
.
The depositary agreement may contain provisions that limit our liability and the liability of the depositary to the holders of
depositary shares. Both the depositary and we are also entitled to an indemnity from the holders of the depositary shares prior
to bringing, or defending against, any legal proceeding. We or any depositary may rely upon written advice of counsel or accountants,
or information provided by persons presenting preferred shares for deposit, holders of depositary shares or other persons believed
by us to be competent and on documents believed by us or them to be genuine.
Debt
Securities
As
used in this prospectus, the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness
that we may issue from time to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated
debt securities. We may also issue convertible debt securities. Debt securities may be issued under an indenture (which we refer
to herein as an Indenture), which are contracts entered into between us and a trustee to be named therein. The Indenture has been
filed as an exhibit to the registration statement of which this prospectus forms a part. We may issue debt securities and incur
additional indebtedness other than through the offering of debt securities pursuant to this prospectus. It is likely that convertible
debt securities will not be issued under an Indenture.
The
debt securities may be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more
guarantors, if any. The obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee
from constituting a fraudulent conveyance under applicable law. In the event that any series of debt securities will be subordinated
to other indebtedness that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus
supplement relating to the subordinated debt securities.
We
may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or
at a discount. Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without
the consent of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional
debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities
under the applicable Indenture and will be equal in ranking.
Should
an Indenture relate to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution
of assets to satisfy our outstanding indebtedness or an event of default under a loan agreement relating to secured indebtedness
of our company or its subsidiaries, the holders of such secured indebtedness, if any, would be entitled to receive payment of
principal and interest prior to payments on the unsecured indebtedness issued under an Indenture.
Each
prospectus supplement will describe the terms relating to the specific series of debt securities. These terms will include some
or all of the following:
|
|
●
|
|
the
title of debt securities and whether the debt securities are senior or subordinated;
|
|
|
●
|
|
any
limit on the aggregate principal amount of debt securities of such series;
|
|
|
●
|
|
the
percentage of the principal amount at which the debt securities of any series will be issued;
|
|
|
●
|
|
the
ability to issue additional debt securities of the same series;
|
|
|
●
|
|
the
purchase price for the debt securities and the denominations of the debt securities;
|
|
|
●
|
|
the
specific designation of the series of debt securities being offered;
|
|
|
●
|
|
the
maturity date or dates of the debt securities and the date or dates upon which the debt securities are payable and the rate
or rates at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method
by which such rate shall be determined;
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the
basis for calculating interest;
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the
date or dates from which any interest will accrue or the method by which such date or dates will be determined;
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the
duration of any deferral period, including the period during which interest payment periods may be extended;
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whether
the amount of payments of principal of (and premium, if any) or interest on the debt securities may be determined with reference
to any index, formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the
manner of determining the amount of such payments;
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the
dates on which we will pay interest on the debt securities and the regular record date for determining who is entitled to
the interest payable on any interest payment date;
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the
place or places where the principal of (and premium, if any) and interest on the debt securities will be payable, where any
securities may be surrendered for registration of transfer, exchange or conversion, as applicable, and notices and demands
may be delivered to or upon us pursuant to the applicable Indenture;
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the
rate or rates of amortization of the debt securities;
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any
terms for the attachment to the debt securities of warrants, options or other rights to purchase or sell our securities;
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if
the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms and
provisions of such collateral security, pledge or other agreements;
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if
we possess the option to do so, the periods within which and the prices at which we may redeem the debt securities, in whole
or in part, pursuant to optional redemption provisions, and the other terms and conditions of any such provisions;
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our
obligation or discretion, if any, to redeem, repay or purchase debt securities by making periodic payments to a sinking fund
or through an analogous provision or at the option of holders of the debt securities, and the period or periods within which
and the price or prices at which we will redeem, repay or purchase the debt securities, in whole or in part, pursuant to such
obligation, and the other terms and conditions of such obligation;
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the
terms and conditions, if any, regarding the option or mandatory conversion or exchange of debt securities;
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the
period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of
the series may be redeemed, in whole or in part at our option and, if other than by a board resolution, the manner in which
any election by us to redeem the debt securities shall be evidenced;
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any
restriction or condition on the transferability of the debt securities of a particular series;
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the
portion, or methods of determining the portion, of the principal amount of the debt securities which we must pay upon the
acceleration of the maturity of the debt securities in connection with any event of default;
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the
currency or currencies in which the debt securities will be denominated and in which principal, any premium and any interest
will or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities
will be denominated;
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provisions,
if any, granting special rights to holders of the debt securities upon the occurrence of specified events;
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any
deletions from, modifications of or additions to the events of default or our covenants with respect to the applicable series
of debt securities, and whether or not such events of default or covenants are consistent with those contained in the applicable
Indenture;
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any
limitation on our ability to incur debt, redeem stock, sell our assets or other restrictions;
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the
application, if any, of the terms of the applicable Indenture relating to defeasance and covenant defeasance (which terms
are described below) to the debt securities;
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what
subordination provisions will apply to the debt securities;
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the
terms, if any, upon which the holders may convert or exchange the debt securities into or for our securities or property;
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whether
we are issuing the debt securities in whole or in part in global form;
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any
change in the right of the trustee or the requisite holders of debt securities to declare the principal amount thereof due
and payable because of an event of default;
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the
depositary for global or certificated debt securities, if any;
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any
material federal income tax consequences applicable to the debt securities, including any debt securities denominated and
made payable, as described in the prospectus supplements, in foreign currencies, or units based on or related to foreign currencies;
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any
right we may have to satisfy, discharge and defease our obligations under the debt securities, or terminate or eliminate restrictive
covenants or events of default in the Indentures, by depositing money or U.S. government obligations with the trustee of the
Indentures;
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the
names of any trustees, depositories, authenticating or paying agents, transfer agents or registrars or other agents with respect
to the debt securities;
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to
whom any interest on any debt security shall be payable, if other than the person in whose name the security is registered,
on the record date for such interest, the extent to which, or the manner in which, any interest payable on a temporary global
debt security will be paid;
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if
the principal of or any premium or interest on any debt securities is to be payable in one or more currencies or currency
units other than as stated, the currency, currencies or currency units in which it shall be paid and the periods within and
terms and conditions upon which such election is to be made and the amounts payable (or the manner in which such amount shall
be determined);
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the
portion of the principal amount of any debt securities which shall be payable upon declaration of acceleration of the maturity
of the debt securities pursuant to the applicable Indenture;
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if
the principal amount payable at the stated maturity of any debt security of the series will not be determinable as of any
one or more dates prior to the stated maturity, the amount which shall be deemed to be the principal amount of such debt securities
as of any such date for any purpose, including the principal amount thereof which shall be due and payable upon any maturity
other than the stated maturity or which shall be deemed to be outstanding as of any date prior to the stated maturity (or,
in any such case, the manner in which such amount deemed to be the principal amount shall be determined); and
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any
other specific terms of the debt securities, including any modifications to the events of default under the debt securities
and any other terms which may be required by or advisable under applicable laws or regulations.
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Unless
otherwise specified in the applicable prospectus supplement, we do not anticipate the debt securities will be listed on any securities
exchange. Holders of the debt securities may present registered debt securities for exchange or transfer in the manner described
in the applicable prospectus supplement. Except as limited by the applicable Indenture, we will provide these services without
charge, other than any tax or other governmental charge payable in connection with the exchange or transfer.
Debt
securities may bear interest at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified
in the prospectus supplement, we may sell debt securities bearing no interest or interest a t a rate that at the time of issuance
is below the prevailing market rate, or at a discount below their stated principal amount. We will describe in the applicable
prospectus supplement any special federal income tax considerations applicable to these discounted debt securities.
We
may issue debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on
any interest payment date, to be determined by referring to one or more currency exchange rates, commodity prices, equity indices
or other factors. Holders of such debt securities may receive a principal amount on any principal payment date, or interest payments
on any interest payment date, that are greater or less than the amount of principal or interest otherwise payable on such dates,
depending upon the value on such dates of applicable currency, commodity, equity index or other factors. The applicable prospectus
supplement will contain information as to how we will determine the amount of principal or interest payable on any date, as well
as the currencies, commodities, equity indices or other factors to which the amount payable on that date relates and certain additional
tax considerations.
Units
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series.
We may evidence each series of units by unit certificates that we may issue under a separate agreement. We may enter into unit
agreements with a unit agent. Each unit agent, if any, may be a bank or trust company that we select. We will indicate the name
and address of the unit agent, if any, in the applicable prospectus supplement relating to a particular series of units. Specific
unit agreements, if any, will contain additional important terms and provisions. We will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate by reference from a current report that we file with the SEC,
the form of unit and the form of each unit agreement, if any, relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including,
without limitation, the following, as applicable
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the
title of the series of units;
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identification
and description of the separate constituent securities comprising the units;
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the
price or prices at which the units will be issued;
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the
date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion
of certain United States federal income tax considerations applicable to the units; and
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any
other material terms of the units and their constituent securities.
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FORMS
OF SECURITIES
Each
security may be represented either by a certificate issued in definitive form to a particular investor or by one or more global
securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will
be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer
or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically
deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary
or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains
a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained
by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the securities in the form of one or more fully registered global securities that will be deposited with a depositary
or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In
those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless
and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors
of the depositary or those nominees.
The
specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security
will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will
apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the
depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective
principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by
the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons
holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of
these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered
global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee,
as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security
for all purposes under the applicable indenture, warrant agreement or unit agreement.
Except
as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities
represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery
of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture,
warrant agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the
procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable
indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action
of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder
is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered
global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the
participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments
to holders with respect to securities represented by a registered global security registered in the name of a depositary or its
nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security.
None of the Company, the trustees, the warrant agents, the unit agents or any other agent of the Company, agent of the trustees,
the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments
made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment
of principal, premium, interest or other payment or distribution to holders of that registered global security, will immediately
credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global
security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers or registered in “street name,” and will
be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for
the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for
a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant
agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based
upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered
global security that had been held by the depositary.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus will be
passed upon for us by Ellenoff Grossman & Schole LLP, New York, New York. If legal matters in connection with offerings
made by this prospectus are passed on by counsel for the underwriters, dealers or agents, if any, that counsel will be named in
the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of Spherix Incorporated and subsidiaries as of and for the years ended December 31, 2016 and
2015 have been incorporated by reference in the registration statement in reliance upon the report of Marcum LLP, independent
registered public accounting firm, and upon the authority of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarter and periodic reports, proxy statements and other information with the Securities and Exchange Commission
using the Commission’s EDGAR system. You may inspect these documents and copy information from them at the Commission’s
offices at public reference room at 100 F Street, NE, Washington, D.C. 20549. You may obtain information on the operation of the
public reference room by calling the SEC at 1-800-SEC-0330. The Commission maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file electronically with the Commission. The address of
such site is http//www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this prospectus certain documents we file with the SEC, which means that we can
disclose important information to you by referring you to those documents. The information in the documents incorporated
by reference is considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that
are incorporated by reference in this prospectus will automatically update and supersede information contained in this prospectus,
including information in previously filed documents or reports that have been incorporated by reference in this prospectus, to
the extent the new information differs from or is inconsistent with the old information. We have filed or may file the following
documents with the SEC and they are incorporated herein by reference as of their respective dates of filing.
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1.
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Our
Annual Report on Form 10-K for the year ended December 31, 2016, filed with the SEC on
March 31, 2017;
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2.
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Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, June 30, 2017 September
30, 2017, as filed with the SEC on May 12, 2017, August 11, 2017 and November 14, 2017,
respectively;
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3.
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Our
Current Reports on Form 8-K filed with the SEC on February 9, 2017, March 15, 2017, June
12, 2017, June 20, 2017, July 3, 2017, July 24, 2017, October 25, 2017 and December 13,
2017; and
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4.
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The
description of certain capital stock contained in our Registration Statement 8-A filed
on January 30, 2013, as amended on June 12, 2017 and as it may further be amended from
time to time.
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All documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the
date of this registration statement and prior to the filing of a post-effective amendment to this registration statement that
indicates that all securities offered under this prospectus have been sold, or that deregisters all securities then remaining
unsold, will be deemed to be incorporated in this registration statement by reference and to be a part hereof from the date of
filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any
subsequently filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced,
to constitute a part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report
on Form 8-K or any corresponding information, either furnished under Item 9.01 or included as an exhibit therein, that we may
from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus, except
as otherwise expressly set forth in the relevant document. Subject to the foregoing, all information appearing in this prospectus
is qualified in its entirety by the information appearing in the documents incorporated by reference.
You
may requests, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits,
unless such exhibits are specifically incorporate by reference), by contacting Anthony Hayes, c/o Spherix Corporation, at Spherix
Incorporated , at One Rockefeller Plaza, 11th Fl., New York, NY 10020. Our telephone number is (212) 745-1374. Information about
us is also available at our website at
http://www.spherix.com
. However, the information in our website is not a part of
this prospectus and is not incorporated by reference.
SPHERIX INCORPORATED
105,731 Shares of Common Stock
Pre-funded Warrants to Purchase 201,961
Shares of Common Stock
PROSPECTUS SUPPLEMENT
June 7, 2019
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