As
Filed with the Securities and Exchange Commission on January 11, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Enveric
Biosciences, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Delaware |
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95-4484725 |
(State
or other jurisdiction of
incorporation
or organization) |
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(I.R.S.
Employer
Identification
No.) |
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
(239)
302-1707
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Joseph
Tucker
Chief
Executive Officer
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
(239)
302-1707
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Bradley
J. Wyatt, Esq.
Adin
J. Tarr, Esq.
Dickinson
Wright PLLC
1850
N. Central Avenue, Suite 1400
Phoenix,
AZ 85004
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b–2 of the Exchange Act.
Large
accelerated filer |
☐ |
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Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
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Smaller
reporting company |
☒ |
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Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective
on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a) may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholders named in this prospectus may not sell these
securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
Subject
to Completion, dated January [●], 2024
PROSPECTUS
Enveric
Biosciences Inc.
2,244,000
Shares of Common Stock
This
prospectus relates to the resale of up to 2,244,000 shares of Enveric Biosciences, Inc. (the “Company,” “we,”
or “us”) common stock, par value $0.01 per share, by the selling stockholders named in this prospectus or its permitted transferees.
The shares of common stock registered for resale pursuant to this prospectus include 2,244,000 shares of common stock (the “Warrant
Shares”) issuable upon exercise of common warrants (the “Warrants”) issued to the selling stockholders in the private
placement offering (the “Private Placement”) which closed on December 28, 2023.
For
additional information about the Private Placement, see the section of this prospectus entitled “Private Placement” on page
8 of this prospectus.
The
Warrants have an exercise price of $1.37 per share and will expire five years from the initial exercise date.
We
are registering the shares on behalf of the selling stockholders, to be offered and sold by it from time to time. We are not selling
any securities under this prospectus and will not receive any of the proceeds from the sale of shares by the selling stockholders. Our
registration of the shares of common stock covered by this prospectus does not mean that the selling stockholders will offer or sell
any of such shares of common stock. The selling stockholders named in this prospectus, or their donees, pledgees, transferees or other
successors-in-interest, may resell the shares of common stock covered by this prospectus through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at privately negotiated prices. For additional information on the possible
methods of sale that may be used by the selling stockholders, you should refer to the section of this prospectus entitled “Plan
of Distribution” on page 12 of this prospectus.
No
underwriter or other person has been engaged to facilitate the sale of the common stock in the Private Placement. We will pay the expenses
incurred in registering the shares, including legal and accounting fees. See “Plan of Distribution” on page 12 of this prospectus.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “ENVB.” On January 8, 2024, the closing sale
price of our Common Stock on The Nasdaq Capital Market was $1.29 per share.
Investment
in our common stock involves risk. See “Risk Factors” contained on page 4 in this prospectus, in our periodic reports filed
from time to time with the Securities and Exchange Commission, which are incorporated by reference in this prospectus and in any applicable
prospectus supplement. You should carefully read this prospectus and the accompanying prospectus supplement, together with the documents
we incorporate by reference, before you invest in our common stock.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or the accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of the registration statement that we filed with the Securities and Exchange Commission (the “SEC”) pursuant
to which the selling stockholders named herein may, from time to time, offer and sell or otherwise dispose of the shares of our common
stock covered by this prospectus. As permitted by the rules and regulations of the SEC, the registration statement filed by us includes
additional information not contained in this prospectus.
This
prospectus and the documents incorporated by reference into this prospectus include important information about us, the securities being
offered and other information you should know before investing in our securities. You should not assume that the information contained
in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this prospectus or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though
this prospectus is delivered or shares of common stock are sold or otherwise disposed of on a later date. It is important for you to
read and consider all information contained in this prospectus, including the documents incorporated by reference therein, in making
your investment decision. You should also read and consider the information in the documents to which we have referred you under “Where
You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus.
You
should rely only on this prospectus and the information incorporated or deemed to be incorporated by reference in this prospectus. We
have not, and the selling stockholders have not, authorized anyone to give any information or to make any representation to you other
than those contained or incorporated by reference in this prospectus. If anyone provides you with different or inconsistent information,
you should not rely on it. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless
otherwise indicated, information contained or incorporated by reference in this prospectus concerning our industry, including our general
expectations and market opportunity, is based on information from our own management estimates and research, as well as from industry
and general publications and research, surveys and studies conducted by third parties. Management estimates are derived from publicly
available information, our knowledge of our industry and assumptions based on such information and knowledge, which we believe to be
reasonable. In addition, assumptions and estimates of our and our industry’s future performance are necessarily uncertain due to
a variety of factors, including those described in “Risk Factors” beginning on page 4 of this prospectus. These and
other factors could cause our future performance to differ materially from our assumptions and estimates.
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and related notes that are incorporated by reference in this prospectus. In this prospectus,
unless the context indicates otherwise, “Enveric,” the “Company,” the “registrant,” “we,”
“us,” “our,” or “ours” refer to Enveric Biosciences, Inc. and its subsidiaries.
Overview
We
are biotechnology company dedicated to the development of novel neuroplastogenic small-molecule therapeutics for the treatment of depression,
anxiety, and addiction disorders. Leveraging our unique discovery and development platform, The Psybrary™, we have created a robust
intellectual property portfolio of New Chemical Entities for specific mental health indications. Our lead program, the EVM201 Series,
comprises next generation synthetic prodrugs of the active metabolite, psilocin. We are developing the first product from the EVM201
Series – EB-373 – for the treatment of psychiatric disorders. We are also advancing our second program, the EVM301 Series,
expected to offer a first-in-class, new approach to the treatment of difficult-to-address mental health disorders, mediated by the promotion
of neuroplasticity without also inducing hallucinations in the patient.
Corporate
Information
We
were incorporated under the laws of the State of Delaware in February 1994 as Spatializer Audio Laboratories, Inc., which was a shell
company immediately prior to the completion of a “reverse merger” transaction on May 26, 2015, whereby Ameri100 Acquisition,
Inc., a Delaware corporation and newly created, wholly owned subsidiary, was merged with and into Ameri and Partners Inc. (“Ameri
and Partners”), a Delaware corporation (the “2015 Merger”). In connection with the 2015 Merger, we changed our name
to AMERI Holdings, Inc.
The
Ameri business ceased to be part of the Company on December 30, 2020, pursuant to a spin-off transaction. On December 30, 2020, we completed
a tender offer to purchase all of the outstanding common shares of Jay Pharma Inc., a Canada corporation, for shares of Company common
stock or certain preferred stock, and changed our name to “Enveric Biosciences, Inc.”
On
May 24, 2021, we entered into an Amalgamation Agreement (the “Amalgamation Agreement”) with 1306432 B.C. Ltd., a corporation
existing under the laws of the Province of British Columbia and a wholly-owned subsidiary of the Company (“HoldCo”), 1306436
B.C. Ltd., a corporation existing under the laws of the Province of British Columbia and a wholly-owned subsidiary of HoldCo (“Purchaser”),
and MagicMed Industries Inc., a corporation existing under the laws of the Province of British Columbia (“MagicMed”), pursuant
to which, among other things, the Company, indirectly through Purchaser, acquired all of the outstanding securities of MagicMed in exchange
for securities of the Company by way of an amalgamation under the British Columbia Business Corporations Act, upon the terms and conditions
set forth in the Amalgamation Agreement, such that, upon completion of the Amalgamation, the amalgamated corporation (“Amalco”)
will be an indirect wholly-owned subsidiary of the Company. The Amalgamation was completed on September 16, 2021.
Our
principal corporate office is located at Enveric Biosciences, Inc., 4851 Tamiami Trail N, Suite 200, Naples, Florida 34103, telephone
(239) 302-1707. Our internet address is https://www.enveric.com/, and the information included in, or linked to our website is not part
of this prospectus. We have included our website address in this prospectus solely as a textual reference. Our trademarks and trade names
include, but may not be limited to, “Enveric,” and the Enveric logo.
The
Private Placement
Common
Stock to be Offered by the Selling stockholders |
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2,244,000
shares of common stock consisting of 2,244,000 Warrant Shares. |
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Use
of Proceeds |
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We
are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of the shares of common
stock covered hereby by the selling stockholders. |
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Plan
of Distribution |
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The
selling stockholders named in this prospectus, or their pledgees, donees, transferees, distributees,
beneficiaries or other successors-in-interest, may offer or sell the shares of common stock
from time to time through public or private transactions at prevailing market prices, at
prices related to prevailing market prices or at privately negotiated prices. The selling
stockholders may also resell the shares of common stock to or through underwriters, broker-dealers
or agents, who may receive compensation in the form of discounts, concessions or commissions.
See
“Plan of Distribution” beginning on page 12 of this prospectus for additional information on the methods of sale that
may be used by the selling stockholders. |
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Nasdaq
Capital Market Symbol |
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Our
common stock is listed on The Nasdaq Capital Market under the symbol “ENVB.” |
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Risk
Factors |
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Investing
in our common stock involves significant risks. Before making a decision whether to invest in our common stock, please read the information
contained in or incorporated by reference under the heading “Risk Factors” on page 4 of this prospectus, the documents
we have incorporated by reference herein, and under similar headings in other documents filed after the date hereof and incorporated
by reference into this prospectus. See “Incorporation of Certain Information by Reference” and “Where You Can Find
More Information” on page 16 of this prospectus. |
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to purchase our securities, including the shares
of common stock offered by this prospectus, you should carefully consider the risks and uncertainties described under “Risk Factors”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and any amendment, any subsequent Quarterly Report on Form
10-Q and our other filings with the SEC, all of which are incorporated by reference herein. If any of these risks actually occur, our
business, financial condition and results of operations could be materially and adversely affected and we may not be able to achieve
our goals, the value of our securities could decline and you could lose some or all of your investment. Additional risks not presently
known to us or that we currently believe are immaterial may also significantly impair our business operations. If any of these risks
occur, our business, results of operations or financial condition and prospects could be harmed. In that event, the market price of our
common stock, and you could lose all or part of your investment.
Risks
Related to This Offering and our Common Stock
You
may experience future dilution as a result of future equity offerings and other issuances of our securities.
In
order to raise additional capital, we may in the future offer additional shares of common stock or other securities convertible into
or exchangeable for our common stock prices that may not be the same as the price per share paid by the investors in this offering. We
may not be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price
per share paid by the investors in this offering, and investors purchasing shares or other securities in the future could have rights
superior to existing stockholders. The price per share at which we sell additional shares of common stock or securities convertible into
shares of common stock in future transactions may be higher or lower than the price per share paid to the selling stockholders. Our stockholders
will incur dilution upon exercise of any outstanding stock options, warrants or other convertible securities or upon the issuance of
shares of common stock under our stock incentive programs.
We
expect to require additional capital in the future in order to develop our product candidates, which are in early stages of development.
If we do not obtain any such additional financing, it may be difficult to effectively realize our long-term strategic goals and objectives.
Our
current cash resources will not be sufficient to fund the development of our product candidates through all of the required clinical
trials to receive regulatory approval and commercialization. If we cannot secure this additional funding when such funds are required,
we may fail to develop our product candidates or be forced to forego certain strategic opportunities.
Any
additional capital raised through the sale of equity or equity-backed securities may dilute our stockholders’ ownership percentages
and could also result in a decrease in the market value of our equity securities.
The
terms of any securities issued by us in future capital transactions may be more favorable to new investors, and may include preferences,
superior voting rights and the issuance of warrants or other derivative securities, which may have a further dilutive effect on the holders
of any of our securities then outstanding.
In
addition, we may incur substantial costs in pursuing future capital financing, including investment banking fees, legal fees, accounting
fees, securities law compliance fees, printing and distribution expenses and other costs. We may also be required to recognize non-cash
expenses in connection with certain securities we issue, such as convertible notes and warrants, which may adversely impact our financial
condition.
The
trading price of our common stock could be highly volatile, which could result in substantial losses for purchasers of our common stock
in this offering. Securities class action or other litigation involving our company or members of our management team could also substantially
harm our business, financial condition and results of operations.
Our
stock price is volatile. The stock market in general and the market for pharmaceutical and biotechnology companies in particular have
experienced extreme volatility that has often been unrelated to the operating performance of particular companies. As a result of this
volatility, you may not be able to sell your common stock at or above the public offering price and you may lose some or all of your
investment. The market price for our common stock may be influenced by many factors, including:
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the
success of existing or new competitive products or technologies; |
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regulatory
actions with respect to our products or our competitors’ products and product candidates; |
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announcements
by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, collaborations or capital commitments; |
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results
of clinical trials of product candidates of our competitors; |
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regulatory
or legal developments in the United States and other countries; |
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developments
or disputes concerning patent applications, issued patents or other proprietary rights; |
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the
recruitment or departure of key personnel; |
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the
extent to which we in-license, acquire or invest in other indications or product candidates; |
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actual
or anticipated changes in estimates as to financial results or development timelines; |
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announcement
or expectation of additional financing efforts; |
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sales
of our common stock by us, our insiders or other stockholders; |
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variations
in our financial results or those of companies that are perceived to be similar to us; |
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changes
in estimates or recommendations by securities analysts, if any, that cover us; |
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changes
in the structure of healthcare payment systems; |
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market
conditions in the pharmaceutical and biotechnology sectors; and |
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general
economic, industry and market conditions. |
In
the past, securities class action litigation has often been brought against a company following a decline in the market price of its
securities. This risk is especially relevant for pharmaceutical and biotechnology companies, which have experienced significant stock
price volatility in recent years.
Substantial
future sales or other issuances of our common stock could depress the market for our common stock.
Sales
of a substantial number of shares of our common stock and any future sales of a substantial number of shares of common stock in the public
market, including the issuance of shares or any shares issuable upon exercise of the Warrants, or the perception by the market that those
sales could occur, could cause the market price of our common stock to decline or could make it more difficult for us to raise funds
through the sale of equity and equity-related securities in the future at a time and price that our management deems acceptable, or at
all. In addition, as opportunities present themselves, we may enter into financing or similar arrangements in the future, including the
issuance of debt securities, preferred stock or common stock, which could also depress the market for our common stock. We cannot predict
the effect, if any, that market sales of those shares of common stock or the availability of those shares for sale will have on the market
price of our common stock.
Our
stock price may be subject to substantial volatility, and stockholders may lose all or a substantial part of their investment.
Our
common stock currently trades on The Nasdaq Capital Market. There is limited public float, and trading volume historically has been low
and sporadic. As a result, the market price for our common stock may not necessarily be a reliable indicator of our fair market value.
The price at which our common stock trades may fluctuate as a result of a number of factors, including the number of shares available
for sale in the market, quarterly variations in our operating results, actual or anticipated announcements of new releases by us or competitors,
the gain or loss of significant customers, changes in the estimates of our operating performance, market conditions in our industry and
the economy as a whole.
In
the event that we fail to regain compliance with the listing requirements of The Nasdaq Capital Market (“Nasdaq”) or satisfy
any of the listing requirements of Nasdaq, our common stock may be delisted, which could affect our market price and liquidity.
Our
common stock is listed on Nasdaq. For continued listing on Nasdaq, we will be required to comply with the continued listing requirements,
including the minimum market capitalization standard, the stockholders’ equity requirement, the corporate governance requirements
and the minimum closing bid price requirement, among other requirements. On November 21, 2023, we received a letter from the Nasdaq staff
indicating that, based on our reported stockholders’ equity of $2,435,646 reported on Form 10-Q for the period ended September
30, 2023, we were not in compliance with the stockholders’ equity requirement of at least $2,500,000 pursuant to Listing Rule 5550(b)(1).
We intend to regain compliance with Listing Rule 5550(b)(1).
In
the event that we fail to regain compliance with Listing Rule 5550(b)(1) or satisfy any of the listing requirements of Nasdaq, our common
stock may be delisted. If we are unable to list on Nasdaq, we would likely be more difficult to trade in or obtain accurate quotations
as to the market price of our common stock. If our common stock is delisted from trading on Nasdaq, and we are not able to list our common
stock on another exchange or to have it quoted on Nasdaq, our securities could be quoted on the OTC Bulletin Board or on the “pink
sheets.” As a result, we could face significant adverse consequences including, without limitation:
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a
limited availability of market quotations for our securities; |
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a
determination that our common stock is a “penny stock” which will require brokers trading in our common stock to adhere
to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities; |
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a
limited amount of news and analyst coverage for our Company; and |
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a
decreased ability to issue additional securities (including pursuant to short-form registration statements on Form S-3 or obtain
additional financing in the future). |
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
Except
for historical information, this prospectus and any documents we incorporate by reference contain forward-looking statements within the
meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. Such forward-looking statements include, among others,
those statements including the words “believes,” “anticipates,” “expects,” “intends,”
“estimates,” “plans,” and words of similar import. Such forward-looking statements involve known and unknown
risks, uncertainties and other factors that may cause our actual results, performance or achievements, or industry results, to be materially
different from any future results, performance or achievements expressed or implied by such forward-looking statements.
Forward-looking
statements are based on our current expectations and assumptions regarding our business, potential target businesses, the economy and
other future conditions. Because forward-looking statements relate to the future, by their nature, they are subject to inherent uncertainties,
risks and changes in circumstances that are difficult to predict. Our actual results may differ materially from those contemplated by
the forward-looking statements. We caution you therefore that you should not rely on any of these forward-looking statements as statements
of historical fact or as guarantees or assurances of future performance. You should understand that many important factors, in addition
to those discussed in this prospectus, the accompanying prospectus and any documents we incorporate by reference, could cause our results
to differ materially from those expressed in the forward-looking statements. Important factors that could cause actual results to differ
materially from those in the forward-looking statements include changes in local, regional, national, or global political, economic,
business, competitive, market (supply and demand) and regulatory conditions and the following:
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our
dependence on the success of our prospective product candidates, which are in early stages of development and may not reach a particular
stage in development, receive regulatory approval or be successfully commercialized; |
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potential
difficulties that may delay, suspend, or scale back our efforts to advance additional early research programs through preclinical
development and investigational new drug application filings and into clinical development; |
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the
risk that the cost savings, synergies and growth from our combination with MagicMed Industries Inc. and the successful use of the
rights and technologies acquired in the combination may not be fully realized or may take longer to realize than expected; |
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the
impact of the novel coronavirus (COVID-19) on our business, including our current plans for product development, as well as any currently
ongoing preclinical studies and clinical trials and any future studies or other development or commercialization activities; |
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the
limited study on the effects of medical cannabinoids and psychedelics, and the chance that future clinical research studies may lead
to conclusions that dispute or conflict with our understanding and belief regarding the medical benefits, viability, safety, efficacy,
dosing, and social acceptance of cannabinoids or psychedelics; |
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the
expensive, time-consuming, and uncertain nature of clinical trials, which are susceptible to change, delays, termination, and differing
interpretations; |
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the
ability to establish that potential products are efficacious or safe in preclinical or clinical trials; |
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the
fact that our current and future preclinical and clinical studies may be conducted outside the United States, and the United States
Food and Drug Administration may not accept data from such studies to support any new drug applications we may submit after completing
the applicable developmental and regulatory prerequisites; |
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our
ability to effectively and efficiently build, maintain and legally protect our molecular derivatives library so that it can be an
essential building block from which those in the biotech industry can develop new patented products; |
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our
ability to establish or maintain collaborations on the development of therapeutic candidates; |
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our
ability to obtain appropriate or necessary governmental approvals to market potential products; |
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our
ability to manufacture product candidates on a commercial scale or in collaborations with third parties; |
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our
significant and increasing liquidity needs and potential requirements for additional funding; |
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our
ability to obtain future funding for developing products and working capital and to obtain such funding on commercially reasonable
terms; |
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legislative
changes related to and affecting the healthcare system, including, without limitation, changes and proposed changes to the Patient
Protection and Affordable Care Act; |
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the
intense competition we face, often from companies with greater resources and experience than us; |
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our
ability to retain key executives and scientists; |
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the
ability to secure and enforce legal rights related to our products, including intellectual property rights and patent protection; |
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political,
economic, and military instability in Israel which may impede our development programs; as well as |
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our
ability to successfully spin off our cannabinoid assets. |
Other
sections of this prospectus and any documents we incorporate by reference describe additional risk factors that could adversely impact
our business and financial performance. Moreover, we operate in an evolving environment. New risk factors and uncertainties emerge from
time to time, and it is not possible for our management to predict all risk factors and uncertainties, nor are we able to assess the
impact of all of these risk factors on our business or the extent to which any risk factor, or combination of risk factors, may cause
actual results to differ materially from those contained in any forward-looking statements. These risks and others described under the
section “Risk Factors” in this prospectus and any documents we incorporate by reference are not exhaustive.
Given
these uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. We disclaim any obligation to
update any such factors or to publicly announce the result of any revisions to any of the forward-looking statements contained herein
to reflect future events or developments.
PRIVATE
PLACEMENT
On
December 28, 2023, we entered into warrant exercise inducement offer letters (the “Inducement Letters”) with certain
holders (the “Holders”) of warrants to purchase shares of our common stock (the “Existing Warrants”)
pursuant to which the Holders agreed to exercise for cash their Existing Warrants to purchase 1,122,000 shares of our common stock,
in the aggregate, at a reduced exercised price of $1.37 per share, in exchange for our agreement to issue new warrants (the
“Warrants”) on substantially the same terms as the Existing Warrants as described below, to purchase up to 2,244,000
shares of our common stock (the “Warrant Shares”) and a cash payment of $0.125 per Warrant Share which was paid in full
upon the exercise of the Existing Warrants. The Existing Warrants consist of certain warrant shares and preferred investment
options obtained by the selling stockholders in previous transactions with us. These previous transactions with the selling
stockholders are described under the section “Selling Stockholders” in this prospectus and in other documents we filed
previously, including, but not limited to, the Current Report on Form 8-K filed with the SEC on July 26, 2022. We received
aggregate gross proceeds of approximately $1.8 million from the exercise of the Existing Warrants by the Holders and the sale of the
Warrants. We engaged Roth Capital Partners, LLC (“Roth”) to act as our financial advisor in connection with the
transactions summarized above and paid Roth $108,000 for its services.
USE
OF PROCEEDS
The
common stock to be offered and sold using this prospectus will be offered and sold by the selling stockholders named in this prospectus.
Accordingly, we will not receive any proceeds from any sale of shares of common stock in this offering. We will pay all of the fees and
expenses incurred by us in connection with this registration.
SELLING
STOCKHOLDERS
This
prospectus relates to the sale from time to time by the selling stockholders of up to 2,244,000 shares of our common stock. When we refer
to the “selling stockholders” in this prospectus, we mean the persons and entities listed in the table below, and their respective
pledgees, donees, permitted transferees, assignees, successors and others who later come to hold any of the selling stockholders’
interests in shares of our common stock other than through a public sale.
The
selling stockholders may sell some, all or none of its shares. We do not know how long the selling stockholders will hold the shares
before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the
sale of any of the shares.
The
following table presents information regarding the selling stockholders and the shares that they may offer and sell from time to time
under this prospectus. The number of shares common stock beneficially owned by the selling stockholders is determined under rules promulgated
by the SEC. Except as described below, there are currently no agreements, arrangements or understandings with respect to the resale
of any of the securities covered by this prospectus.
| |
Shares Beneficially Owned Prior to this | | |
Maximum Number of Shares Being Offered Pursuant to this | | |
Shares Beneficially Owned After this Offering(3) | |
Name of Selling Stockholder | |
Offering(1)(2)(3) | | |
Prospectus | | |
Number(3) | | |
Percent(4) | |
Armistice Capital, LLC (5) | |
| 2,931,000 | (7) | |
| 1,954,000 | (9) | |
| 977,000 | (10) | |
| 18.1 | % |
Intracoastal Capital LLC (6) | |
| 397,126 | (8) | |
| 290,000 | (9) | |
| 107,126 | (10) | |
| 3.5 | % |
(1) |
Except
as noted below, beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment
power with respect to securities. All entries exclude beneficial ownership of shares issuable pursuant to warrants, options or other
derivative securities that have not vested or that are not otherwise exercisable as of the date hereof or which will not become vested
or exercisable within 60 days of January 8, 2024. |
|
|
(2) |
Based
upon the internal books and records of the Company. |
|
|
(3) |
Includes
shares of common stock which are not being offered pursuant to this prospectus. |
|
|
(4)
|
All
percentage calculations are based on 2,739,315 shares of common stock outstanding as of January 8, 2024 and
are rounded to the nearest tenth of a percent. Warrants, options or other derivative securities that are presently exercisable or
exercisable within 60 days are deemed to be beneficially owned by the person holding such securities for the purpose of calculating
the percentage ownership of that person, but are not treated as outstanding for the purpose of calculating the percentage ownership
of any other person. |
|
|
(5) |
The
securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”),
and may be deemed to be indirectly beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment
manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The Warrants are subject to a beneficial
ownership limitation of 4.99%, which such limitation restricts the selling stockholders from exercising that portion of the warrants
that would result in the selling stockholders and its affiliates owning, after exercise, a number of shares of common stock in excess
of the beneficial ownership limitation. Upon at least 61 days’ prior notice, the holder may increase the beneficial ownership
limitation provided that in no event it exceeds 9.99% of the number of shares of the common stock outstanding immediately after giving
effect to the issuance of shares of common stock upon exercise of the Warrant. The address of Armistice Capital Master Fund Ltd.
is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. |
|
|
(6) |
These
shares are directly held by Intracoastal Capital LLC (“Intracoastal”), and may be deemed to be indirectly beneficially
owned by Mitchell P. Kopin, a manager of Intracoastal, and Daniel B. Asher, a manager of Intracoastal (collectively, with Intracoastal,
the “Intracoastal Owners”). The Warrants are subject to a beneficial ownership limitation of 4.99%,
which such limitation restricts the selling stockholders from exercising that portion of the warrants that would result in the selling
stockholders and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership
limitation. Upon at least 61 days’ prior notice, the holder may increase the beneficial ownership limitation provided that
in no event it exceeds 9.99% of the number of shares of the common stock outstanding immediately after giving effect to the issuance
of shares of common stock upon exercise of the Warrant. The address of Intracoastal is 245 Palm Trail, Delray Beach, Florida 33483. |
|
|
(7)
|
The
number of shares of common stock owned by the selling stockholder prior to this offering consists of (i) 977,000 shares
of common stock, 704,000 of which are being held in abeyance; and (ii) Warrants issued in the Private Placement to purchase up to an
aggregate of 1,954,000 shares of common stock (without giving effect to the 4.99% beneficial ownership limitation contained in such
Warrants). |
|
|
(8) |
The
number of shares of common stock owned by the selling stockholder prior to this offering consists of (i) 107,126 shares of common stock and (ii) Warrants issued in the Private Placement to purchase up to an aggregate
of 290,000 shares of common stock (without giving effect to the 4.99% beneficial ownership limitation contained in such Warrants). |
(9) |
The
maximum number of shares being offered pursuant to this prospectus consists of Warrants issued in the Private Placement to purchase
up to an aggregate of 2,244,000 shares of Common Stock (without giving effect to the 4.99% beneficial ownership limitation contained
in such Warrants). |
|
|
(10) |
The
shares beneficially owned after this Private Placement give effect to the 4.99% beneficial ownership limitation contained in the
Warrants held by the selling stockholders. |
Issuances
of our common stock to the selling stockholders will not affect the rights or privileges of our existing stockholders, except that the
economic and voting interests of each of our existing stockholders will be diluted as a result of any such issuance. Although the number
of shares of common stock that our existing stockholders own will not decrease, the shares owned by our existing stockholders will represent
a smaller percentage of our total outstanding shares after any such issuance to the selling stockholders identified herein.
Relationships
with the Selling Stockholders
Except
as described below, none of the selling stockholders has, or within the past three years has had, any position, office or other material
relationship with us.
Armistice
Capital Master Fund Ltd. purchased securities pursuant to the July 2022 PIPE Purchase Agreement (“July 2022 PIPE”), July
2022 RD Purchase Agreement (“July 2022 RD Offering”), and our registered direct offering in February 2022 (the “February
2022 RD Offering”).
Intracoastal Capital, LLC purchased securities in the July 2022 PIPE and the February 2022 RD Offering.
Each
of Armistice Capital Master Fund Ltd. and Intracoastal Capital, LLC entered into warrant amendment agreements with us in connection with the July 2022 PIPE and July 2022 RD Offering.
Each
of Armistice Capital Master Fund Ltd. and Intracoastal Capital, LLC entered into a warrant exercise inducement offer letter with us pursuant
to which it agreed to exercise for cash its Existing Warrants (acquired as warrants and preferred investment options in connection
with the July 2022 PIPE, July 2022 RD Offering, and February 2022 RD Offering), to purchase an aggregate of 1,122,000 shares of common
stock at a reduced exercise price of $1.37 per share in exchange for our agreement to issue new warrants on substantially the same terms
as the existing warrants to purchase up to an aggregate of 2,244,000 shares of our common stock and a cash payment of $0.125 per New
Warrant share, which was paid in full upon the exercise of Existing Warrants.
PLAN
OF DISTRIBUTION
Each
selling stockholders of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any
or all of their securities covered hereby on The Nasdaq Capital Market or any other stock exchange, market or trading facility on which
the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholders may use
any one or more of the following methods when selling securities:
|
● |
ordinary
brokerage transactions and transactions in which the broker dealer solicits purchasers; |
|
● |
block
trades in which the broker dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction; |
|
● |
purchases
by a broker dealer as principal and resale by the broker dealer for its account; |
|
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
|
● |
privately
negotiated transactions; |
|
● |
settlement
of short sales; |
|
● |
in
transactions through broker dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated
price per security; |
|
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
|
● |
a
combination of any such methods of sale; or |
|
● |
any
other method permitted pursuant to applicable law. |
The
selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker
dealers engaged by the selling stockholders may arrange for other brokers dealers to participate in sales. Broker dealers may receive
commissions or discounts from the selling stockholders (or, if any broker dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction
not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup
or markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify
the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect
or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar
effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon for us by Dickinson Wright PLLC, Phoenix, Arizona.
EXPERTS
The
consolidated financial statements as of and for the year ended December 31, 2022 incorporated by reference in this prospectus have been
audited by Marcum LLP, an independent registered public accounting firm, as stated in their report (the report on the consolidated financial
statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern). Such financial statements
are incorporated by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The
consolidated financial statements as of and for the year ended December 31, 2021 incorporated by reference in this prospectus have been
audited by Friedman LLP, an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated
by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this
prospectus. This prospectus, filed as part of the registration statement, does not contain all the information set forth in the registration
statement and its exhibits and schedules, portions of which have been omitted as permitted by the rules and regulations of the SEC. For
further information about us, we refer you to the registration statement and to its exhibits and schedules.
We
are subject to the informational requirements of the Exchange Act and in accordance therewith we file annual, quarterly, and other reports,
proxy statements and other information with the Commission under the Exchange Act. Such reports, proxy statements and other information,
including the Registration Statement, and exhibits and schedules thereto, are available to the public through the Commission’s
website at www.sec.gov.
We
make available free of charge on or through our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, as soon as reasonably practicable after we electronically file such material with or otherwise furnish it to the Commission.
The registration statement and the documents referred to under “Incorporation of Certain Information by Reference” are also
available on our website enveric.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
following documents filed with the SEC are incorporated by reference into this prospectus:
|
● |
our
Annual Report on Form 10-K for the year ended December 31, 2022, filed on March
31, 2023 (“Annual Report”), and an amendment to the Annual Report filed on June 9, 2023; |
|
|
|
|
● |
our
Quarterly Reports on Form 10-Q for the quarters ended March
31, 2023, June
30, 2023, and September 30, 2023, filed with the SEC on May 15, 2023, August 11, 2023, and November 13, 2023, respectively; |
|
|
|
|
● |
our
Current Reports on Form 8-K, filed on February
28, 2023, May
24, 2023, September
1, 2023, November
2, 2023, November
6, 2023, November
22, 2023, December
29, 2023, and January 8, 2024 (other than any portions thereof deemed furnished and not filed); and |
|
|
|
|
● |
the
description of our common stock contained in our Form 8-A12B, filed with the Commission on November 9, 2017 (File No. 001-38286),
amended and supplemented by the description of our common stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the
fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023, and any amendment or report filed with the Commission
for purposes of updating such description. |
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made (i) on or after the date of the initial filing of the
registration statement of which this prospectus forms a part and prior to effectiveness of such registration statement, and (ii) on or
after the date of this prospectus but prior to the termination of the offering (i.e., until the earlier of the date on which all of the
securities registered hereunder have been sold or the registration statement of which this prospectus forms a part has been withdrawn).
Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future
filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is
incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace
such earlier statements.
We
will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request,
a copy of any or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including
exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents to:
Enveric
Biosciences, Inc.
4851
Tamiami Trail N,
Suite
200 Naples, FL
Telephone
(239) 302-1707
Attention:
Corporate Secretary
You
may also access these documents, free of charge, on the SEC’s website at www.sec.gov or on our website at https://www.enveric.com/investors/filings/.
The information contained in, or that can be accessed through, our website is not incorporated by reference in, and is not part of, this
prospectus or any accompanying prospectus supplement.
In
accordance with Rule 412 of the Securities Act, any statement contained in a document incorporated by reference herein shall be deemed
modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such statement.
You
should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference into
this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such an
offer or solicitation.
2,244,000
Shares of common stock
PROSPECTUS
[●],
2024
PART
II:
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various costs and expenses payable by us in connection with the sale of the securities being registered.
All such costs and expenses shall be borne by us. Except for the Securities and Exchange Commission registration fee, all the amounts
shown are estimates.
| |
Amount | |
Securities and Exchange Commission registration fee | |
$ | 423.95 | |
Accountants’ fees and expenses | |
$ | 5,000 | |
Legal fees and expenses | |
| 25,000 | |
Miscellaneous | |
| - | |
Total expenses | |
$ | 30,423.95 | |
Item
15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who were, are, or are threatened
to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation, or is or was serving at the request of such corporation as an officer, director, employee or agent
of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best
interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal.
A Delaware corporation may indemnify any persons who were, are, or are threatened to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful
on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses
(including attorneys’ fees) actually and reasonably incurred.
Our
amended and restated certificate of incorporation and amended and restated bylaws, each as amended, provide for the indemnification of
its directors and officers to the fullest extent permitted under the Delaware General Corporation Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duties as a director, except for liability for any:
|
● |
transaction
from which the director derives an improper personal benefit; |
|
|
|
|
● |
act
or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
unlawful
payment of dividends or redemption of shares; or |
|
|
|
|
● |
breach
of a director’s duty of loyalty to the corporation or its stockholders. |
Our
amended and restated certificate of incorporation, as amended, includes such a provision. Expenses incurred by any officer or director
in defending any such action, suit or proceeding in advance of its final disposition shall be paid by us upon delivery of an undertaking,
by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Company.
Item
16. Exhibits
(b) |
All
schedules have been omitted because they are not required, are not applicable or the information is otherwise set forth in the financial
statements and related notes thereto. |
Exhibit
No. |
|
Description |
2.1 |
|
Share Purchase Agreement, dated January 10, 2020, by and between AMERI Holdings, Inc. and Ameri100, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the Commission on January 13, 2020). |
2.2 |
|
Tender Offer Support Agreement and Termination of Amalgamation Agreement, dated August 12, 2020, by and among AMERI Holdings, Inc., Jay Pharma Merger Sub, Inc., Jay Pharma Inc., 1236567 B.C. Unlimited Liability Company and Barry Kostiner, as the Ameri representative (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Commission on August 12, 2020). |
2.3 |
|
Amendment No. 1 To Tender Offer Support Agreement and Termination of Amalgamation Agreement, dated December 18, 2020, by and among Ameri, Jay Pharma Merger Sub, Inc., Jay Pharma Inc., 1236567 B.C. Unlimited Liability Company and Barry Kostiner, as the Ameri representative (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Commission on December 18, 2020). |
2.4 |
|
Amalgamation Agreement, dated May 24, 2021, by and among Enveric Biosciences, Inc., 1306432 B.C. LTD., 1306436 B.C. LTD., and MagicMed Industries, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the Commission on May 24, 2021). |
4.1 |
|
Form of Warrant (issued in connection with December 2023 Warrant Exercise Inducement Offer Letter) (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the Commission on December 29, 2023). |
5.1* |
|
Opinion of Dickinson Wright PLLC. |
10.1 |
|
Form of Inducement Letter (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Commission on December 29, 2023). |
23.1* |
|
Consent of Marcum LLP, independent registered public accounting firm. |
23.2* |
|
Consent of Friedman LLP, independent registered public accounting firm. |
23.3* |
|
Consent of Dickinson Wright PLLC (included in Exhibit 5.1). |
24.1* |
|
Power of Attorney (contained in the signature page to this registration statement). |
107* |
|
Calculation of Filing Fee. |
|
|
|
* |
|
Filed
herewith |
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(a)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(b)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement.
(c)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided,
however, that paragraphs (1)(a), (1)(b) and (1)(c) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(a)
If the registrant is relying on Rule 430B (§230.430B of this chapter):
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10 (a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(b)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(a)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(b)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(c)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(d)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Naples, Florida, on the day of January 11, 2024.
|
Enveric
Biosciences, Inc. |
|
|
|
|
By: |
/s/
Joseph Tucker |
|
Name: |
Joseph
Tucker, PhD |
|
Title: |
Chief
Executive Officer |
POWER
OF ATTORNEY
We,
the undersigned officers and directors of Enveric Biosciences Inc., hereby severally constitute and appoint Kevin Coveney and Joseph Tucker, and each of them singly (with full power to each of them to act alone), to sign any and all amendments (including post-effective
amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to
all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents
or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
held on the dates indicated:
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Joseph Tucker |
|
Chief
Executive Officer and Director |
|
January
11, 2024 |
Joseph
Tucker, PhD |
|
(principal
executive officer) |
|
|
|
|
|
|
|
/s/
Kevin Coveney |
|
Chief
Financial Officer |
|
January
11, 2024 |
Kevin
Coveney |
|
(principal
financial and principal accounting officer) |
|
|
|
|
|
|
|
/s/
Peter Facchini |
|
Chief
Innovation Officer |
|
January
11, 2024 |
Peter
Facchini, Phd |
|
|
|
|
|
|
|
|
|
/s/
George Kegler |
|
Director |
|
January
11, 2024 |
George
Kegler |
|
|
|
|
|
|
|
|
|
/s/
Frank Pasqualone |
|
Director |
|
January
11, 2024 |
Frank
Pasqualone |
|
|
|
|
|
|
|
|
|
/s/
Michael Webb |
|
Director
(Chairman) |
|
January
11, 2024 |
Michael
Webb |
|
|
|
|
Exhibit
5.1
|
1850
N. Central Avenue
Suite
1400
Phoenix
AZ 85004
Telephone:
734-623-1905
Facsimile:
844-670-6009
http://www.dickinsonwright.com
|
January
11, 2024
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
Ladies
and Gentlemen:
We
have acted counsel to Enveric Biosciences, Inc., a Delaware corporation (the “Company”), in connection with the filing
with the Securities and Exchange Commission (the “SEC”) on the date hereof, under the Securities Act of 1933, as amended
(the “Securities Act”), of a registration statement on Form S-3 (the “Registration Statement”)
by the Company which registers the resale by the selling stockholders identified therein of up to 2,244,000 shares of the Company’s
common stock, par value $0.01 per share (the “Common Stock”). Such shares consist of shares of Common Stock (the “Warrant
Shares”) issuable upon exercise of warrants (the “Warrants”) issued to selling stockholder in the Private
Placement (as defined in the Registration Statement).
In
connection with our opinions expressed below, we have examined such documents and such other information as we have deemed advisable
or necessary for the purpose of rendering this opinion, including the following:
|
(i) |
a
copy of the Registration Statement and all exhibits thereto; |
|
|
|
|
(ii) |
a
copy of the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, as amended by Amendment No. 1 to the
Annual Report on Form 10-K (the “2023 Annual Report”); |
|
|
|
|
(iii) |
copies
of the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023
(the “2023 Quarterly Reports”); |
|
|
|
|
(iv) |
a
copy of the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Charter”), as
certified by the office of the Secretary of the State of Delaware on August 31, 2023, and the Company’s President on September
1, 2023; |
|
|
|
|
(v) |
a
copy of the Company’s bylaws (the “Bylaws”) as certified by the Company’s President on September 1,
2023; |
January
11, 2024
Page
2 |
|
|
(vi) |
a
copy of the minutes of a meeting of the Pricing Committee of the Board of Directors of the Company held on December 28, 2023; |
|
|
|
|
(vii) |
a
copy of the form of Inducement Letter between the Company and the selling stockholders; |
|
|
|
|
(viii) |
a
copy of the form of the Common Stock Purchase Warrant between the Company and the selling stockholders; and |
|
|
|
|
(ix) |
such
other corporate records of the Company as we have deemed necessary or appropriate for purposes of the opinions hereafter expressed. |
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deemed reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examinations, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
We
have also assumed that (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization;
(ii) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective; (iii)
no stop order of the SEC preventing or suspending the use of the prospectus contained in the Registration Statement or any prospectus
supplement will have been issued; (iv) a prospectus properly describing the Common Stock offered thereby will have been delivered to
the purchaser(s) of the Common Stock as required in accordance with applicable law; (v) all Common Stock will be offered, issued and
sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the prospectus
and any prospectus supplement; (vi) any definitive purchase, underwriting or similar agreement with respect to any Common Stock offered
will have been duly authorized and validly executed and delivered by the Company and the other parties thereto and will be an enforceable
obligation of the parties thereto; (vii) upon effectiveness of the Registration Statement, there will be sufficient shares of Common
Stock authorized under the Company’s Charter and not otherwise reserved for issuance; and (viii) there will not have occurred any
change in law or in the Company’s Charter of the Company adversely affecting the Common Stock or the rights of the holders thereof.
January
11, 2024
Page
3 |
|
Based
on the foregoing, we advise you that, in our opinion that when issued in accordance with the terms of the Warrants, the Warrant Shares
will be duly authorized, validly issued, fully paid, and non-assessable.
This
opinion is limited in all respects to matters arising under the law of the State of Delaware and federal law of the United States wherever
applicable. This opinion is predicated solely upon laws and regulations in existence as of the current date, as they currently apply,
and to the facts as they currently exist. We assume no obligation to revise or supplement this opinion should such matters change by
legislative action, judicial decision or otherwise. With regard to Delaware law, this opinion is limited in all respects to matters arising
under the Delaware General Corporation Law. Our review of matters arising under the Delaware General Corporation Law has been limited
to a review of the text of the Delaware General Corporation Law as set forth at 8 Del C. chapter 1, which is stated to include all acts
effective as of October 18, 2023, in each case without regard to any legislative history or judicial decisions or any rules, regulations,
guidelines, releases or interpretations thereof or any other review of the laws of the State of Delaware. We assume that such publication
accurately sets forth the provisions of the Delaware General Corporation Law as in effect on the date hereof. We disclaim any obligation
to revise or supplement the opinion rendered herein should the above-referenced laws be changed by legislative or regulatory action,
judicial decision or otherwise or any fact or circumstance changes that may hereafter be brought to our attention whether or not such
occurrence would affect or modify the opinion expressed herein.
We
hereby consent to the filing of this opinion with the SEC as Exhibit 5.1 to the Registration Statement and to the reference to our firm
under the heading “Legal Matters” in the prospectus constituting part of such Registration Statement. In giving such consent,
we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the SEC thereunder.
|
Very
truly yours, |
|
|
|
|
|
Dickinson Wright PLLC |
Exhibit
23.1
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of Enveric Biosciences, Inc. on Form S-3 of our report dated
March 31, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect
to our audit of the consolidated financial statements of Enveric Biosciences, Inc. as of and for the year ended December 31, 2022 appearing
in Amendment No. 1 of the Annual Report on Form 10-K of Enveric Biosciences, Inc. for the year ended December 31, 2022. We also consent
to the reference to our firm under the heading “Experts” in this Registration Statement.
/s/
Marcum llp
Marcum
llp
East
Hanover, New Jersey
January
11, 2024
Exhibit
23.2
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of Enveric Biosciences, Inc. on Form S-3 of our report dated
March 31, 2022, with respect to our audit of the consolidated financial statements of Enveric Biosciences, Inc. as of and for the year
ended December 31, 2021 appearing in Amendment No. 1 of the Annual Report on Form 10-K of Enveric Biosciences, Inc. for the year ended
December 31, 2022. We also consent to the reference to our firm under the heading “Experts” in this Registration Statement.
We were dismissed as auditors on September 20, 2022 and, accordingly, we have not performed any audit or review procedures with respect
to any financial statements incorporated by reference for the periods after the date of our dismissal.
/s/
Friedman llp
Friedman
llp
East
Hanover, New Jersey
January
11, 2024
Exhibit
107
Calculation
of Filing Fee Tables
FORM
S-3
ENVERIC
BIOSCIENCES, INC.
Table
1: Newly Registered and Carry Forward Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
Rule |
|
Amount
Registered(1) |
|
Proposed
Maximum
Offering Price
Per Unit |
|
Maximum
Aggregate
Offering Price |
|
Fee
Rate |
|
Amount
of
Registration Fee |
|
Fees
to Be Paid |
|
Equity |
|
Common
Stock, par value $0.01 per share |
|
Other |
|
|
2,244,000
|
|
$ |
1.29
(2) |
|
$ |
2,894,760 |
|
|
0.0001476 |
|
$ |
427.27 |
|
|
|
Total
Offering Amounts |
|
|
|
|
$ |
2,894,760 |
|
|
|
|
$ |
427.27 |
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
|
|
|
$ |
427.27 |
|
(1) |
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares of common stock issuable
upon the conversion or exercise, as applicable, of the Preferred Stock and Warrants offered hereby also include an indeterminate
number of additional shares of common stock as may from time to time become issuable by reason of stock splits, stock dividends,
recapitalizations or other similar transactions. |
(2) |
With
respect to the shares of common stock offered by the selling stockholders, estimated at $1.29 per share, the average of the
high ($1.33) and low ($1.25) prices as reported on The Nasdaq Capital Market on January 8, 2024, for the purpose of
calculating the registration fee in accordance with Rule 457(c) under the Securities Act. |
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