As
filed with the Securities and Exchange Commission on January 26, 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
Cardio
Diagnostics Holdings, Inc.
(Exact
name of registrant as specified in its charter)
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| Delaware |
87-0925574 |
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(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
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311
W. Superior Street, Suite 444
Chicago, IL 60654
Telephone: (855) 226-9991
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Meeshanthini
V. Dogan, Ph.D.
Chief Executive Officer
Cardio Diagnostics Holdings, Inc.
311
W. Superior Street, Suite 444
Chicago, IL 60654
Telephone: (855) 226-9991
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
P. Rupert Russell, Esq.
Shartsis Friese LLP
425 Market Street, 11th Floor
San Francisco, CA 94105
(415) 421-6500
Approximate date of commencement of proposed sale
to the public: From time to time after the effective date hereof.
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, 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, 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 |
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| Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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. ☐
EXPLANATORY NOTE
This Registration Statement contains two prospectuses:
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A base prospectus which covers the offering, issuance and sale by us of up to $17.0 million in the aggregate of the securities identified below from time to time in one or more offerings; and |
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A sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $17.0 million of our common stock that may be issued and sold under a sales agreement with Craig-Hallum Capital Group LLC. |
The base prospectus immediately follows this explanatory note. The specific
terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus.
The sales agreement prospectus immediately follows the base prospectus.
The aggregate market value of our outstanding common stock held
by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 was $17,106,491, which was calculated based on 20,540,409 shares of
common stock outstanding as of January 25, 2024, of which 3,832,134 shares were held by affiliates, and a price of $3.06 per share, which
was the closing price of our common stock on Nasdaq on January 2, 2024. We have not offered any securities pursuant to General Instruction
I.B.6 of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
The $17.0 million in aggregate amount of common stock that may be offered,
issued and sold under the sales agreement prospectus is the full amount of securities that may be offered, issued and sold by us under
the base prospectus, but if no shares are sold under the sales agreement, the full $17.0 million of securities may be sold in other offerings
pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this preliminary prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED JANUARY 26, 2024
PRELIMINARY PROSPECTUS
Cardio Diagnostics
Holdings, Inc.
Up to $17,000,000
Common Stock
Preferred Stock
Warrants
Units
Subscription Rights
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We may offer and sell from time to time shares
of common stock, shares of preferred stock, warrants to purchase shares of common stock, units, subscription rights or any combination
thereof (the “Securities”) up to an aggregate initial offering price of up to $17.0 million in one or more transactions under
this shelf prospectus. The securities may be offered separately or together, at times, in amounts, at prices and on terms that will be
determined based on market conditions at the time of sale and set forth in an accompanying shelf prospectus supplement. We will provide
specific terms of any offering in supplements to this prospectus. The prospectus supplement will contain more specific information about
the offering and the securities being offered. The prospectus supplements may add, update or change information contained in this prospectus.
You should read this prospectus and any prospectus supplement carefully before you invest. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement.
We may offer securities for sale directly to
purchasers or through underwriters, dealers or agents to be designated at a future date. The supplements to this prospectus will provide
the names of any underwriters, the specific terms of the plan of distribution and the underwriter’s discounts and commissions.
This prospectus provides you with a general
description of the securities that we may offer. Each time we offer securities, we will provide you with a prospectus supplement that
describes specific information about the particular securities being offered and may add, update or change information contained or incorporated
by reference in this prospectus. You should read both this prospectus and the prospectus supplement, together with the additional information
that is incorporated by reference into this prospectus and any prospectus supplement.
Our common stock and our public warrants are
listed on the Nasdaq Capital Market, under the symbols “CDIO” and “CDIOW,” respectively. On January 25, 2024,
the closing price of our common stock and public warrants was $2.04 and $0.1684,
respectively.
We are an “emerging growth company,”
as defined under the federal securities laws, and, as such, may elect to comply with certain reduced public company reporting requirements
for this prospectus and for future filings.
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Investing in our securities involves a high
degree of risk. Before buying any securities, you should carefully read the discussion of the risks of investing in our securities in
“Risk Factors” as noted on page 6 of this prospectus and carefully consider the discussion of risks and uncertainties under
the heading “Risk Factors” contained in any applicable prospectus supplement and in the documents that are incorporated by
reference.
You should rely only on the information contained
in this prospectus or any prospectus supplement or amendment hereto. We have not authorized anyone to provide you with different information.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is [·], 2024.
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration
statement on Form S-3 that we have filed with the SEC utilizing a “shelf” registration process. Under this shelf registration
process, we may from time to time offer and sell the securities described in this prospectus in one or more offerings up to an aggregate
initial offering price of $17.0 million.
This prospectus provides you with a general
description of our securities. Each time we sell securities, we will provide a supplement to this prospectus that will contain specific
information about the securities being offered and the specific terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable
prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus and any prospectus
supplement together with additional information described under the headings “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference.”
We may offer and sell securities to or through
underwriting syndicates 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.
In connection with any offering of securities
(unless otherwise specified in a prospectus supplement), the underwriters or agents may over-allot or effect transactions which stabilize
or maintain the market price of the securities offered at a higher level than that which might exist in the open market. Such transactions,
if commenced, may be interrupted or discontinued at any time. See “Plan of Distribution.”
This prospectus and the documents incorporated
by reference in this prospectus contain forward-looking statements and forward-looking information within the meaning of the U.S. Private
Securities Litigation Reform Act of 1995. See “Cautionary Note Regarding Forward-Looking Statements.”
Prospective investors should be aware that the
ownership and disposition of the securities described herein may have tax consequences. You should read the tax discussion contained in
the applicable prospectus supplement and consult your tax advisor with respect to your own particular circumstances.
You should rely only on the information contained
or incorporated by reference in this prospectus and any applicable prospectus supplement. We have not authorized anyone to provide you
with different or additional information. If anyone provides you with different or additional information, you should not rely on it.
The distribution or possession of this prospectus in or from certain jurisdictions may be restricted by law. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted or where the person making the offer or sale is not qualified to do so or to any person to whom it is not permitted to make
such offer or sale. The information contained in this prospectus and any applicable prospectus supplement is accurate only as of the date
of such document and any information incorporated by reference is accurate only as of the date of that document, regardless of the time
of delivery of this prospectus or any applicable prospectus supplement or of any sale of our securities pursuant thereto. Our business,
financial condition, results of operations and prospects may have changed since those dates.
In this prospectus and in any prospectus supplement,
unless the context otherwise requires, references to:
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“Cardio,” the “Company,” “we,” “us” and “our” refer to Cardio Diagnostics Holdings, Inc., either alone or together with our wholly-owned subsidiary, as the context requires; |
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“Exchange Act” refers to the Securities Exchange Act of 1934, as amended; |
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“Securities Act” refers to the Securities Act of 1933, as amended; |
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“FINRA” refers to the Financial Industry Regulatory Authority; |
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“Nasdaq” refers to the Nasdaq Capital Market; and |
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“SEC” or “Commission” refers to the United States Securities and Exchange Commission. |
This prospectus and any applicable prospectus
supplement include references to trade names and trademarks of other companies, which trade names and trademarks are the property of
their respective owners.
Market data and certain industry forecasts included
in this prospectus, including any prospectus supplement or any document incorporated by reference herein or therein, are derived from
recognized industry reports published by industry analysts, industry associations and/or independent consulting and data compilation organizations.
Although we believe that these independent sources are generally reliable, the accuracy and completeness of the information from such
sources is not guaranteed and has not been independently verified by us, and we do not make any representation as to the accuracy of such
information.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements regarding, among other things, our plans, strategies and prospects,
both business and financial. These statements are based on the beliefs and assumptions of our management. Although we believe that our
plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, we cannot provide
assurance that we will achieve or realize these plans, intentions or expectations. Forward-looking statements are inherently subject
to risks, uncertainties and assumptions. Generally, statements that are not historical facts, including statements concerning possible
or assumed future actions, business strategies, events or results of operations, are forward-looking statements. The words “anticipates,”
“believe,” “continue,” “could,” “estimate,” “expect,” “intends,”
“may,” “might,” “plan,” “possible,” “potential,” “predicts,” “project,”
“should,” “would” and similar expressions may identify forward-looking statements, but the absence of these
words does not mean that a statement is not forward-looking. Investors should read statements that contain these words carefully because
they:
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discuss future expectations; |
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contain projections of future results of operations or financial condition; or; |
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state other “forward-looking” information. |
Below is a summary of material factors that
make an investment in our securities speculative or risky. Importantly, this summary does not address all of the risks and uncertainties
that the Company faces. Additional discussion of the risks and uncertainties summarized in this risk factor summary, as well as other
risks and uncertainties that the Company faces, can be found under the heading “Risk Factors” in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022, as updated by the Company’s subsequent filings under the Exchange Act,
including, without limitation, the Annual Report on Form 10-K for the year ended December 31, 2023, which the Company expects to file
on or about April 1, 2024, and, if applicable, in any accompany prospectus supplement. The below summary is qualified in its entirety
by those more complete discussions of such risks and uncertainties. You should consider carefully the risks and uncertainties described
under the heading “Risk Factors” in the Company’s most current Annual Report, as updated by the Company’s subsequent
filings under the Exchange Act and, if applicable, in any accompany prospectus supplement filed relating to a specific offering or sale,
as part of your evaluation of an investment in the Company’s Securities. Important factors that could cause such differences include,
among other things, the following:
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the possibility that we may be adversely impacted by economic, business, and/or competitive factors; |
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our limited operating history makes it difficult to evaluate our business and prospects; |
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the success, cost and timing of our product development and commercialization activities, including the degree to which Epi+Gen CHD™ and PrecisionCHD™, our currently-available tests, are accepted and adopted by patients, healthcare professionals and other participants in other key channels may not meet our current expectations; |
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changes in applicable laws or regulations could negatively our current business plans; |
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we may be unable to obtain and maintain regulatory clearance or approval for our tests, and any related restrictions and limitations of any cleared or approved product could negatively impact our financial condition; |
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the pricing of our products and services and reimbursement for medical tests conducted using our products and services may not be sufficient to achieve our financial goals; |
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we may be unable to successfully compete with other companies currently marketing or engaged in the development of products and services that could serve the same or similar functions as our products and services; |
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the size and growth potential of the markets for our products and services, and our ability to serve those markets, either alone or in partnership with others may not meet our current expectations; |
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we may be unable to maintain our existing or future licenses, or manufacturing, supply and distribution agreements; |
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we may be unable to identify, in-license or acquire additional technology needed to develop new products or services; |
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our estimates regarding expenses, future revenue, capital requirements and needs for additional financing may not be accurate; |
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we may be unable to raise needed financing in the future on acceptable terms, if at all; |
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we may be unable to maintain our listing on The Nasdaq Stock Market; |
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the ongoing or future impact from the coronavirus disease or other global health crises could cause significant economic and social disruption, and such impact on our business is uncertain; and |
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there are other risks and uncertainties indicated in this prospectus or included in any prospectus supplement, including those under the section entitled “Risk Factors” that will be included in any prospectus supplement, and other filings that have been made or will be made with the SEC by us that could materially alter our current expectations. |
These forward-looking statements are based on
information available as of the date of this prospectus, and our management’s current expectations, forecasts and assumptions, and
involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing
our views as of any subsequent date, and you should not place undue reliance on these forward-looking statements. We
do not undertake any obligation to update, add or to otherwise correct any forward-looking statements contained herein to reflect events
or circumstances after the date they were made, whether as a result of new information, future events, inaccuracies that become apparent
after the date hereof or otherwise, except as may be required under applicable securities laws.
All forward-looking statements attributable
to the Company or persons acting on its behalf are expressly qualified in their entirety by the foregoing cautionary statements. The Company
undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events
or otherwise, except as required by law.
The Company believes there is a reasonable basis
for its current expectations, views and assumptions, but they are inherently uncertain. The Company may not realize its expectations,
and its views and assumptions may not prove correct. Actual results could differ materially from those described or implied by such forward-looking
statements. In evaluating forward-looking statements, investors should specifically consider the following uncertainties and factors,
among others (including those set forth under the heading “Risk Factors” in the Company’s Annual Report on Form
10-K, as updated by the Company’s subsequent filings under the Exchange Act and, if applicable, in any accompanying prospectus supplement
filed relating to a specific offering or sale), that could affect future performance and cause actual results to differ materially from
those matters expressed in or implied by forward-looking statements.
Before you invest in our securities,
you should be aware that the occurrence of one or more of the events described in this prospectus and in any prospectus supplement, in
the section designated “Risk Factors” and elsewhere, may adversely affect us.
THE COMPANY
Cardio was formed to further develop and commercialize
a series of products for major types of cardiovascular disease and associated co-morbidities, including coronary heart disease (“CHD”),
stroke, heart failure and diabetes, by leveraging our Artificial Intelligence (“AI”)-driven Integrated Genetic-Epigenetic
Engine™. As a company, we aspire to give every American adult insight into their unique risk for various cardiovascular diseases.
Cardio aims to become one of the leading medical technology companies for enabling improved prevention, early detection and treatment
of cardiovascular disease. Cardio is transforming the approach to cardiovascular disease from reactive to proactive and hope to accelerate
the adoption of Precision Medicine for all. We believe that incorporating our solutions into routine practice in primary care and prevention
efforts can help alter the trajectory that nearly one in two Americans is expected to develop some form of cardiovascular disease by 2035.
According to the CDC, epigenetics is the study
of how a person’s behaviors and environment can cause changes that affect the way a person’s genes work. Unlike genetic changes,
epigenetic changes are reversible and do not change one’s DNA sequence, but they can change how a person’s body reads a DNA
sequence. We believe that we are the first company to develop and commercialize epigenetics-based clinical tests for cardiovascular disease
that have clear value propositions for multiple stakeholders including (i) patients, (ii) clinicians, (iii) hospitals/health systems,
(iv) employers and (v) payors.
An estimated 80% of cardiovascular disease
(“CVD”) is preventable, yet, it is responsible for one in every four deaths and remains the number one killer in the United
States for both men and women. Coronary heart disease is the most common type of CVD and the major cause of heart attacks. The enormous
number of unnecessary heart attacks and deaths associated with CHD is attributable to the failure of current primary prevention approaches
in clinical practice to effectively detect, reduce and monitor risk for CHD prior to life altering and costly health complications. Several
reasons for this failure include (i) the current in-person risk screening approach is incompatible with busy everyday life as demonstrated
by the COVID-19 associated decrease in primary care visits for preventive screening; (ii) even if the current risk screening tests are
taken, they only identify 44% and 32% of men and women at high risk, respectively; and (iii) the lack of patient care plan personalization.
A highly accessible, personalized and precise solution for CHD prevention is not currently available.
Due to the ongoing threat from the COVID-19
virus and other potential widespread health threats, preventable illnesses such as CHD are expected to spike. Therefore, now more than
ever, there is an urgent need for a highly sensitive, scalable, at-home risk screening tool that can help physicians better direct care
and allow patients to receive the help they need sooner.
Our first test, Epi+Gen CHD™, which was
introduced for market testing in 2021, is a three-year symptomatic CHD risk assessment test targeting CHD events, including heart attacks.
In March 2023, we announced the launch of our second product, PrecisionCHD™, an integrated
epigenetic-genetic blood test for the early detection of coronary heart disease. The Company earned only $950 and $[xx] in revenue
for the years ended December 31, 2022 and 2023, respectively, all of which was generated through a telemedicine platform. Rather than
expend our resources actively pursuing the telemedicine sales channel, in mid- to late 2022, we started focusing our efforts more heavily
on establishing relationships with potential customers, a process that can take many months and up to as much as a year or more to finalize,
depending on the sales channel. For example, hospitals routinely take a year or longer to make purchasing decisions. While these relationships
take considerable time to establish, we believe that they provide far greater revenue potential for our existing and future tests.
We believe that our Epi+Gen CHD™ and PrecisionCHD™
tests are categorized as laboratory-developed tests, or “LDTs.” Under current Food & Drug Administration (“FDA”)
policy, an LDT does not require premarket authorization or other FDA clearance or approval. As such, we believe that the Epi+Gen CHD™
and PrecisionCHD™ tests do not require FDA premarket evaluation of our performance claims or marketing authorization, and such premarket
review and authorization has not been obtained. However, in September 2023, the FDA announced a proposed rule aimed at helping to ensure
the safety and effectiveness of LDTs. The proposed regulation would alter the FDA’s historical position by classifying LDTs as medical
devices, which would likely require us to adhere to a more stringent regulatory framework, including pre-market clearance or approval
requirements, quality system regulations, and post-market surveillance obligations. If this regulations is finalized and implemented,
the regulatory burden on our Company will be substantial, both in terms of cost, diversion of Company resources and time to market. Although
submissions that are pending before the FDA or that have been denied are not publicly available, to the best of our knowledge, no epigenetic-based
clinical test for cardiovascular disease has, to date, been cleared or approved by the FDA.
As a company in the early stages of its development,
the Company continuously reevaluates its business, the market in which it operates and potential new opportunities. The Company may seek
other alternatives within the healthcare field in order to grow its business and increase revenues. Such alternatives may include, but
not be limited to, combinations or strategic partnerships with other laboratory companies or with medical practices such as hospitalists
or behavioral health.
Further details concerning our business, including
information with respect to our assets, operations and development history, are provided in our Annual Report on Form 10-K for
the year ended December 31, 2022 and, once filed on or about March 31, 2024, our Annual Report on Form 10-K for the year ended December
31, 2023, as revised or supplemented by our subsequent quarterly reports on Form 10-Q, and our current reports on Form 8-K,
all of which are incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports
we file with the SEC in the future. See “Incorporation of Certain Information by Reference.” You are encouraged to
thoroughly review the documents incorporated by reference into this prospectus as they contain important information concerning our business
and our prospects.
Recent Developments
In January 2024,
the American Medical Association granted and assigned dedicated Current Procedural Terminology (“CPT”®) Proprietary
Laboratory Analysis (“PLA”) codes, 0439U and 0440U, for our currently-available tests, Epi+Gen CHD™ and PrecisionCHD™,
respectively. Both CPT PLA codes will be effective on April 1, 2024. Receipt of these new CPT PLA
codes is a significant step toward payer billing and payment, which we believe will facilitate broader adoption of our tests.
In January 2024, India’s Patent Office
granted a patent to the University of Iowa Research Foundation (“UIRF”). The patent, which was co-invented by our founders,
Meeshanthini Dogan, Ph.D. and Robert Philibert, M.D. Ph.D., is exclusively licensed to Cardio by the UIRF.
Corporate Information
Mana Capital
Acquisition Corp. was formed on May 19, 2021 under the laws of the State of Delaware as a blank check company for the purpose of engaging
in a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination,
with one or more target businesses or entities. Cardio Diagnostics, Inc. (“Legacy Cardio”) was formed in January 2017
as an Iowa limited liability company (Cardio Diagnostics, LLC) and was subsequently incorporated as a Delaware C-Corp (Cardio Diagnostics,
Inc.) on September 6, 2019. Upon completion of the business combination between Mana Capital and Legacy Cardio on October 25, 2022, we
changed our name to Cardio Diagnostics Holdings, Inc.
Our corporate headquarters is located at 311
W. Superior Street, Suite 444, Chicago IL 60642. Our telephone number is (855) 226-9991 and our website address is cardiodiagnosticsinc.com.
The information contained on, or that can be accessed through, our website is not incorporated by reference in this prospectus and does
not form a part of this prospectus. The reference to our website address does not constitute incorporation by reference of the information
contained at or available through our website, and you should not consider it to be a part of this registration statement.
Emerging Growth Status
We are an “emerging growth company,”
as defined in Section 2(a) of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS
Act”), and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies
that are not emerging growth companies, including, but not limited to, not being required to comply with the auditor attestation requirements
of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”), reduced disclosure obligations
regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding
advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
Further, Section 102(b)(1) of the JOBS
Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies
(that is, those that have not had a registration statement under the Securities Act declared effective or do not have a class of securities
registered under the Securities Exchange Act of 1934, as amended the “Exchange Act”), are required to comply with the new
or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period
and comply with the requirements that apply to non-emerging growth companies but any such an election to opt out is irrevocable.
We have elected not to opt out of such extended transition period which means that when a standard is issued or revised and it has different
application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised standard at the time
private companies adopt the new or revised standard. This may make comparison of our financial statements with another public company
which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period
difficult or impossible because of the potential differences in accounting standards used.
We will remain an emerging growth company until
the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the completion of the IPO, (b) in
which we have total annual gross revenue of at least $1.07 billion, or (c) in which we are deemed to be a large accelerated
filer, which means the market value of our Common Stock held by non-affiliates equaled or exceeded $700 million as of the
prior June 30, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt securities
during the prior three-year period.
Additionally, we are a “smaller reporting
company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced
disclosure obligations, including, among other things, providing only two years of audited financial statements. We will remain a smaller
reporting company until the last day of the fiscal year in which (1) the market value of our Common Stock held by non-affiliates
equaled or exceeded $250 million as of the end of the prior June 30th, or (2) our annual revenues equaled or exceeded $100 million
during such completed fiscal year and the market value of our Common Stock held by non-affiliates equaled or exceeded $700 million
as of the prior June 30th.
RISK FACTORS
Investing in our securities is speculative and
involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully consider the specific
factors discussed under the heading “Risk Factors” in the any applicable prospectus supplement and any free writing
prospectus, together with all the information contained or incorporated by reference in the prospectus supplement or appearing or incorporated
by reference in this prospectus, including the risks, uncertainties and assumptions discussed under the heading “Risk Factors”
in our Annual Report, as revised or supplemented by our subsequent quarterly reports on Form 10-Q, or our current reports on Form 8-K,
which are incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we
file with the SEC in the future. These risks, as well as risks currently unknown to us, could materially adversely affect our future business,
operations and financial condition and could cause purchasers of securities to lose all or part of their investments. The risks and uncertainties
we have described are not the only risks we face; risks and uncertainties not currently known to us or that we currently deem to be immaterial
may also materially and adversely affect our business, financial condition, results of operations and prospects.
USE OF PROCEEDS
Except as otherwise provided in the applicable
Prospectus Supplement, we intend to use the net proceeds from the sale of the Securities covered by this Prospectus for general corporate
purposes, which may include working capital, capital expenditures, sales and marketing expenditures and research and development. Due
to the nature of our business and the current stage of our development, we had negative operating cash flow for our most recent interim
financial period and financial year. To the extent we have negative cash flows in future periods, we may use a portion of our general
working capital to fund such negative cash flow.
More detailed information regarding the use
of proceeds from the sale of securities will be described in any applicable prospectus supplement. Pending any such uses, we may temporarily
invest the net proceeds in short-term investments.
We may also, from time to time, issue securities
otherwise than pursuant to a prospectus supplement to this prospectus.
DIVIDEND POLICY
Our dividend policy is set forth under the heading
“Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities”
in our Annual Report on Form , which is incorporated in this prospectus by reference, as updated by our subsequent filings under the Exchange
Act.
SECURITIES TO
BE OFFERED
We may offer, from time to time and in one or
more offerings, shares of common stock, shares of preferred stock, warrants, units and/or subscription rights. Set forth herein and below
is a general description of the securities that we may offer hereunder. We will set forth in the applicable prospectus supplement a specific
description of the securities that may be offered under this prospectus. This prospectus provides you with a general description of the
Securities we may offer. Each time we offer Securities, we will provide a prospectus supplement that will describe the specific amounts,
prices or pricing method and other important terms of the Securities, including, to the extent applicable:
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designation or classification; |
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aggregate principal amount or aggregate offering price; |
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restrictive covenants, if any; |
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voting or other rights, if any; and |
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important United States federal income tax considerations. |
A prospectus supplement that we may authorize
to be provided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by
reference. However, no prospectus supplement will offer a security that is not registered and described in this prospectus at the time
of the effectiveness of the registration statement of which this prospectus is a part.
See “Description of Capital Stock”
and “Description of Other Securities that May Be Offered Under this Prospectus” as well as any applicable prospectus
supplement for more information about the securities that may offered under this prospectus.
DESCRIPTION OF CAPITAL
STOCK
The following is a description of our capital stock and certain
provisions of our certificate of incorporation, as amended and restated and currently in effect (our “certificate of incorporation”),
bylaws and certain provisions of applicable law. The following is only a summary and is qualified by applicable law and by the provisions
of our certificate of incorporation and bylaws, copies of which are included as exhibits to the registration statement of which this prospectus
forms a part. We are incorporated in the State of Delaware. The rights of our stockholders are generally covered by Delaware law and our
certificate of incorporation and bylaws. The terms of our capital stock are therefore subject to Delaware law.
Authorized and Outstanding Stock
The certificate of incorporation authorizes
the issuance of 400,000,000 shares, of which 300,000,000 shares are shares of common stock, par value $0.00001 per share, and 100,000,000
shares are shares of preferred stock, par value $0.00001 per share. As of January 25, 2024, we had outstanding 20,540,409 shares of common
stock and no outstanding shares of preferred stock.
Common Stock
We may offer shares of common stock from time
to time in one or more offerings. The terms of our common stock are as follows:
Voting Rights
Each holder of our common stock is entitled
to cast one vote per share. Holders of common stock are not entitled to cumulative voting rights. Except as otherwise required by law
or The Nasdaq Stock Market rules (or such other national stock exchange on which are common stock may then by listed), matters to be voted
on by stockholders must be approved by the vote of a majority of the votes cast with respect to the matter. Except as otherwise required
by the Delaware General Corporation Law (the “DGCL”), our certificate of incorporation or the voting rights granted to the
holders of any preferred stock we may subsequently issue, the holders of outstanding shares of common stock and preferred stock entitled
to vote thereon, if any, will vote as one class with respect to all matters to be voted on by our stockholders.
Dividend Rights
Each holder of our common stock is entitled
to the payment of dividends and other distributions (based on the number of shares of common stock held) as may be declared by our Board
of Directors out of our assets or funds legally available for dividends and other distributions. These rights are subject to the preferential
rights of the holders of our preferred stock, if any, and any contractual limitations on our ability to declare and pay dividends.
Liquidation, Dissolution and Winding Up
If we are involved in a voluntary or involuntary
liquidation, dissolution or winding up of our affairs or a similar event, each holder of our common stock will participate pro
rata in all assets remaining after payment of liabilities, subject to prior distribution rights of the holders of our preferred
stock, if any, then outstanding.
Other Matters
Holders of shares of our common stock do not
have subscription, redemption or conversion rights. All outstanding shares of our common stock are validly issued, fully paid and non-assessable.
Holders of our common stock are entitled to
one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election
of directors by our stockholders shall be determined, in an uncontested election, by a majority of the votes cast by the stockholders
entitled to vote on the election and,
in a contested election, by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock
are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend
rights of any series of preferred stock that we may designate and issue in the future.
Our stockholders have no redemption, preemptive
or other subscription rights and there are no sinking fund or redemption provisions applicable to the shares of common stock.
In the event of our liquidation or dissolution,
the holders of common stock are entitled to receive an amount of our net assets available for distribution to stockholders after the payment
of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no
preemptive, subscription, redemption or
conversion rights. Our outstanding shares of common stock are validly issued, fully paid and nonassessable. The rights, preferences and
privileges of 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 and issue in the future.
Preferred Stock
We may offer shares of our preferred stock from
time to time in one or more offerings. Our certificate of incorporation authorizes us to issue up to 10,000,000 shares of preferred stock,
par value $0.00001 per share. Our Board is authorized, subject to limitations prescribed by Delaware law and the certificate of incorporation,
to determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or
more series, the number of shares to be included in each series and the powers (including the voting power), designations, preferences
and rights of the shares. Our Board also is authorized to designate any qualifications, limitations or restrictions on the shares without
any further vote or action by the stockholders. The issuance of preferred stock may have the effect of delaying, deferring or preventing
a change in control of the Company and may adversely affect the voting and other rights of the holders of common stock, which could have
a negative impact on the market price of such common stock. We have no current plan to issue any shares of preferred stock, but we could
offer preferred stock under this prospectus in the future.
Public Warrants
Our public warrants are issued under that
certain warrant agreement dated November 22, 2021, by and between us and Continental Stock Transfer & Trust Company, as warrant agent.
Pursuant to the warrant agreement, each whole public warrant entitles the registered holder to purchase one whole share of our Common
Stock at a price of $11.50 per share, subject to adjustment as discussed below. The public warrants will expire on October 25, 2027, which
is five years after completion of our initial business combination, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
We will not be obligated to deliver any shares
of Common Stock pursuant to the exercise of a public warrant and will have no obligation to settle such warrant exercise unless a registration
statement under the Securities Act with respect to the shares of Common Stock underlying the warrants is then effective and a prospectus
relating thereto is current, subject to our satisfying our obligations described below with respect to registration. No public warrant
will be exercisable, and we will not be obligated to issue shares of Common Stock upon exercise of a public warrant, unless Common Stock
issuable upon such warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence
of the registered holder of the public warrants. In the event that the conditions in the two immediately preceding sentences are not satisfied
with respect to a public warrant, the holder of such warrant will not be entitled to exercise such warrant and such warrant may have no
value and expire worthless. In no event will we be required to net cash settle any public warrant.
We filed a registration statement covering the
shares of Common Stock issuable upon exercise of the public warrants, and such registration statement was declared effective on January
24, 2023. As specified in the warrant agreement, we are obligated to maintain a current prospectus relating to those shares of Common
Stock until the warrants expire or are redeemed. During any period when we will have failed to maintain an effective registration statement,
warrantholders may exercise public warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act
or another exemption. If that exemption, or another exemption, is not available, holders will not be able to exercise their public warrants
on a cashless basis.
We may call the warrants for redemption:
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in whole and not in part; |
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at a price of $0.01 per warrant; |
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upon not less than 30 days’ prior written notice of redemption (the “30-day redemption period”) to each warrantholder; |
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if, and only if, there is a current registration statement in effect with respect to the shares of Common Stock underlying such warrants at the time of redemption and for the entire 30-day trading period referred to above and continuing each day thereafter until the date of redemption; and |
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if, and only if, the reported last sale price of Common Stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading day period ending three business days before we send the notice of redemption to the warrantholders. |
We have established the last of the redemption
criteria discussed above to prevent a redemption call unless there is at the time of the call a significant premium to the warrant exercise
price. If the foregoing conditions are satisfied, and we issue a notice of redemption of the public warrants, each warrantholder will
be entitled to exercise its public warrants prior to the scheduled redemption date. However, the price of Common Stock may fall below
the $18.00 redemption trigger price (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) as
well as the $11.50 warrant exercise price after the redemption notice is issued.
If and when the public warrants become redeemable
by us, we may not exercise our redemption right if the issuance of shares of Common Stock upon exercise of the public warrants is not
exempt from registration or qualification under applicable state blue sky laws or we are unable to effect such registration or qualification.
If we call the public warrants for redemption,
they may be exercised, for cash or on a “cashless basis” in accordance with the warrant agreement, at the option of a holder,
at any time after notice of redemption. The notice of redemption will contain the information necessary to calculate the number of shares
of Common Stock to be received in the event the holder has elected to exercise on a cashless basis. If a record holder has not followed
the procedures specified in the notice of redemption and has not surrendered his, her or its public warrant before the redemption date,
then on and after the redemption date the holder will have no further rights except to receive, upon surrender of the public warrants,
the cash redemption price specified of $0.01.
A holder of a public warrants may notify us
in writing in the event it elects to be subject to a requirement that such holder will not have the right to exercise such public warrants,
to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the warrant agent’s
actual knowledge, would beneficially own in excess of 4.9% or 9.8% (or such other amount as a holder may specify) of the shares of Common
Stock outstanding immediately after giving effect to such exercise.
If the number of outstanding shares of Common
Stock is increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock or other similar
event, then, on the effective date of such stock dividend, split-up or similar event, the number of shares of Common Stock issuable on
exercise of each public warrant will be increased in proportion to such increase in the outstanding shares of Common Stock. In addition,
if we, at any time while the public warrants are outstanding and unexpired, pay a dividend or make a distribution in cash, securities
or other assets to the holders of Common Stock on account of such shares of Common Stock (or other shares of our capital stock into which
the public warrants are convertible), other than in certain circumstances as described in the warrant agreement, then the warrant exercise
price will be decreased, effective immediately after the effective date of such event, by the amount of cash and/or the fair market value
of any securities or other assets paid on each share of Common Stock in respect of such event.
If the number of outstanding shares of our Common
Stock is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Common Stock or other similar
event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each public warrant will be decreased in proportion to such decrease in outstanding
shares of Common Stock.
Whenever the number of shares of Common Stock
purchasable upon the exercise of the public warrants is adjusted, as described above, the warrant exercise price will be adjusted by multiplying
the warrant exercise price immediately prior to such adjustment by a fraction (x) the numerator of which will be the number of shares
of Common Stock purchasable upon the exercise of the public warrants immediately prior to such adjustment, and (y) the denominator of
which will be the number of shares of Common Stock so purchasable immediately thereafter.
In case of any reclassification or reorganization
of the outstanding shares of Common Stock (other than those described above or that solely affects the par value of such shares of Common
Stock), or in the case of any merger or consolidation of us with or into another corporation (other than a consolidation or merger in
which we are the continuing corporation and that does not result in any reclassification or reorganization of our outstanding shares of
Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of us as an entirety
or substantially as an entirety in connection with which we are dissolved, the holders of the public warrants will thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions specified in the public warrants and in lieu of the shares
of our Common Stock immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and
amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger
or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the public warrants would have received
if such holder had exercised their public warrants immediately prior to such event.
The public warrants have been issued in registered
form under the warrant agreement between Continental Stock Transfer & Trust Company, as warrant agent, and us. Investors should review
a copy of the warrant agreement, which is an exhibit to the registration statement of which this prospectus is a part, for a complete
description of the terms and conditions applicable to the public warrants. The warrant agreement provides that the terms of the public
warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision, but requires the approval
by the holders of at least a majority of the then outstanding public warrants to make any change that adversely affects the interests
of the registered holders of public warrants.
The public warrants may be exercised upon surrender
of the public warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise form on the
reverse side of the warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price (or on
a cashless basis, if applicable), by certified or official bank check payable to us, for the number of public warrants being exercised.
The warrantholders do not have the rights or privileges of holders of Common Stock and any voting rights until they exercise their public
warrants and receive shares of Common Stock. After the issuance of shares of Common Stock upon exercise of the public warrants,
each holder will be entitled to one vote for each share held of record on all matters to be voted on by stockholders.
No fractional shares will be issued upon exercise
of the public warrants. If, upon exercise of the public warrants, a holder would be entitled to receive a fractional interest in a share,
we will, upon exercise, round down to the nearest whole number the number of shares of Common Stock to be issued to the warrantholder.
Private Warrants and Options
In addition to our public warrants, as of January
25, 2024, we have the following privately-issued warrants and options to purchase common stock:
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2,500,000 warrants sold to our former sponsor, which are exercisable through October 25, 2027 at $11.50 per share, subject to adjustment for stock splits, reverse stock splits and other similar events of recapitalization; |
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931,265 warrants, exercisable at $3.90 per share, subject to adjustment for stock splits, reverse stock splits and other similar events of recapitalization, which were sold in a private placement by Legacy Cardio in 2021 and 2022, having an expiration date five years from the date of issuance; |
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1,173,362 warrants, exercisable at $6.21 per share, subject to adjustment for stock splits, reverse stock splits and other similar events of recapitalization, which were sold in a private placement by Legacy Cardio in 2022, having an expiration date five years from the date of issuance; and |
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2,952,886 options, which expire at various times between May 6, 2032 and June 23, 2033 and are exercisable at prices ranging from $1.26 to $3.90 per share. |
Listing of Securities
Our common stock
and public warrants are listed on the Nasdaq Capital Market under the symbols “CDIO” and “CDIOW,” respectively.
Our Transfer Agent and Warrant Agent
The
transfer agent for our Common Stock and warrant agent for our public warrants is Continental Stock
Transfer & Trust Company, 1 State Street Plaza, New York, New York 10004.
DESCRIPTION OF OTHER SECURITIES THAT MAY BE
OFFERED UNDER THIS PROSPECTUS
Warrants
We may issue other warrants in the future for
the purchase of common stock, preferred stock or units. Warrants may be issued independently or together with common stock, preferred
stock or units offered by any prospectus supplement and may be attached to or separate from any such offered securities. Each series of
warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent,
provided that we may also act as warrant agent and enter into warrant agreements directly with the purchasers of securities offered pursuant
to this prospectus. In each case, the terms of the warrants will be set forth in the prospectus supplement relating to the particular
issue of warrants. The warrant agent, if any, will act solely as our agent in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.
The following summary of certain provisions of
the warrants we may issue in the future does not purport to be complete and is subject to, and is qualified in its entirety by reference
to, all provisions of the warrant agreements.
Reference is made to the prospectus supplement
relating to the particular issue of warrants offered pursuant to such prospectus supplement for the terms of and information relating
to such warrants, including, where applicable:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants and the price at which such number of shares of common stock or preferred stock may be purchased upon such exercise; |
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the designation and number of units of other securities purchasable upon the exercise of warrants to purchase other securities and the price at which such number of units of such other securities may be purchased upon such exercise; |
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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U.S. federal income tax consequences applicable to such warrants; |
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the amount of warrants outstanding as of the most recent practicable date; and |
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any other terms of such warrants. |
Warrants will be issued in registered form only.
Each warrant will entitle the holder thereof to purchase such number of shares of common stock, preferred stock or units at such exercise
price as shall in each case be set forth in, or calculable from, the prospectus supplement relating to the warrants, which exercise price
may be subject to adjustment upon the occurrence of certain events as set forth in such prospectus supplement. After the close of business
on the expiration date, or such later date to which such expiration date may be extended by us, unexercised warrants will become void.
The place or places where, and the manner in which, warrants may be exercised shall be specified in the prospectus supplement relating
to such warrants.
Prior to the exercise of any warrants to purchase
common stock, preferred stock or units, holders of such warrants will not have any of the rights of holders of the underlying securities,
as the case may be, purchasable upon such exercise, including the right to receive payments of dividends, if any, on the common stock
or preferred stock purchasable upon such exercise, or to exercise any applicable right to vote.
Subscription Rights
We may issue subscription rights to purchase
common stock, preferred stock, warrants, units of other securities described in this
prospectus or any combination thereof. These subscription rights may be issued independently or together with any other security offered
by us and may or may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any
offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other investors pursuant to
which the underwriters or other investors may be required to purchase any securities remaining unsubscribed for after such offering.
To the extent appropriate, the applicable prospectus
supplement will describe the specific terms of the subscription rights to purchase shares of our securities offered thereby, including
the following:
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the date of determining the stockholders entitled to the rights distribution; |
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the price, if any, for the subscription rights; |
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the exercise price payable for the common stock, preferred stock, warrants, units or other securities upon the exercise of the subscription right; |
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the number of subscription rights issued to each stockholder; |
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the amount of common stock, preferred stock, warrants, units or other securities that may be purchased per each subscription right; |
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any provisions for adjustment of the amount of securities receivable upon exercise of the subscription rights or of the exercise price of the subscription rights; |
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the extent to which the subscription rights are transferable; |
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; |
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the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights; |
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any applicable federal income tax considerations; and |
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the transferability, exchange and exercise of the subscription rights. |
Units
As specified
in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, shares of preferred stock,
warrants, subscription rights or any combination of the foregoing.
The applicable
prospectus supplement will specify the following terms of the units:
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the terms of the underlying securities comprising the units, including whether and under what circumstances the underlying securities may be traded separate of the units; |
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a description of the terms of any unit agreement governing the units (if any); |
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if appropriate, a discussion of material U.S. federal income tax considerations; and |
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a description of the provisions for the payment, settlement, transfer or exchange of the units. |
OTHER INFORMATION RELEVANT TO OUR SECURITIES
HOLDERS
Certain Anti-Takeover Provisions of Delaware Law and our Amended
and Restated Certificate of Incorporation and By-Laws
We are subject to the provisions of Section 203
of the DGCL regulating corporate takeovers. This statute prevents certain Delaware corporations, under certain circumstances,
from engaging in a “business combination” with:
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a stockholder who owns 15% or more of our outstanding voting stock (otherwise known as an “interested stockholder”); |
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an affiliate of an interested stockholder; or |
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an associate of an interested stockholder, for three years following the date that the stockholder became an interested stockholder. |
A “business combination” includes
a merger or sale of more than 10% of our assets. However, the above provisions of Section 203 do not apply if:
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our board of directors approves the transaction that made the stockholder an “interested stockholder,” prior to the date of the transaction; |
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after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of common stock; or |
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on or subsequent to the date of the transaction, the business combination is approved by our board of directors and authorized at a meeting of our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder. |
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Our authorized but unissued common stock and
preferred stock are available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes,
including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means
of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum for Certain Lawsuits
Our certificate of incorporation requires that,
unless the company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall
be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought
on behalf of the company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee
of the company to the company or the company’s stockholders, (iii) any action asserting a claim against the company, its directors,
officers or employees arising pursuant to any provision of the DGCL or our amended and restated certificate of incorporation or the bylaws,
or (iv) any action asserting a claim against the company, its directors, officers or employees governed by the internal affairs doctrine,
except for, as to each of (i) through (iv) above, (a) any claim as to which the Court of Chancery determines that there is an indispensable
party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction
of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum
other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction, and (b) any action or
claim arising under the Exchange Act or Securities Act of 1933, as amended. This provision may limit a stockholder’s ability to
bring a claim in a judicial forum that it finds favorable for disputes with the company and its directors, officers, or other employees.
Special Meeting of Stockholders
Our
bylaws provide that special meetings of our stockholders may be called only by a majority vote of our board of directors, by our
chief executive officer or by our chairman.
Advance Notice Requirements for Stockholder Proposals and Director
Nominations; Conduct of Meetings
Our
bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election
as directors at our annual meeting of stockholders must provide timely notice of their intent in writing.
To be timely, a stockholder’s notice will need to be delivered to our principal executive offices not later than the close of business
on the 90th day nor earlier than the opening of business on the 120th day prior to the scheduled date of the annual meeting of stockholders.
Our bylaws also specify certain requirements as to the form and content of a stockholders’ meeting. These provisions may preclude
our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual
meeting of stockholders.
Our bylaws allow the chairman of the meeting
at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings which may have the effect of precluding
the conduct of certain business at a meeting if the rules and regulations are not followed. These provisions may also defer, delay
or discourage a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise
attempting to influence or obtain control of us.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may
bring an action in the Company’s name to procure a judgment in our favor, also known as a derivative action, provided that
the stockholder bringing the action is a holder of shares of our common stock at the time of the transaction to which the action relates
or such stockholder’s stock thereafter devolved by operation of law.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The applicable prospectus supplement may describe
certain U.S. federal income tax consequences of the ownership and disposition of any of our securities offered thereunder by an initial
investor who is a U.S. person (within the meaning of the U.S. Internal Revenue Code), including, to the extent applicable, such consequences
containing early redemption provisions or other special items.
PLAN OF DISTRIBUTION
We may sell securities in any one or more of
the following ways from time to time: (i) through agents; (ii) to or through underwriters; (iii) through brokers or dealers; (iv) directly
to purchasers, including through a specific bidding, auction or other process; (v) upon the exercise of subscription rights that may be
distributed to our stockholders; (vi) through a combination of any of these methods of sale or (vii) through any other methods described
in a prospectus supplement. The applicable prospectus supplement and/or other offering material will contain the terms of the transaction,
name or names of any underwriters, dealers, agents and the respective amounts of securities underwritten or purchased by them, the initial
public offering price of the securities, and the applicable agent’s commission, dealer’s purchase price or underwriter’s
discount. Any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation
received by them on resale of the securities may be deemed to be underwriting discounts.
Any initial offering price, dealer purchase
price, discount or commission may be changed from time to time.
The securities may be distributed from time
to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that may be subject to change), at market
prices prevailing at the time of sale, in at the market offerings, at various prices determined at the time of sale or at prices related
to prevailing market prices.
Offers to purchase securities may be solicited
directly by us or by agents designated by us from time to time. Any such agent may be deemed to be an underwriter, as that term is defined
in the Securities Act, of the securities so offered and sold.
If underwriters are utilized in the sale of
any securities in respect of which this prospectus is being delivered, such securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the time of sale. Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or directly by one or more underwriters. If any underwriter or underwriters
are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus supplement and/or other offering material,
the obligations of the underwriters are subject to certain conditions precedent, and that the underwriters will be obligated to purchase
all such securities if any are purchased.
If a dealer is utilized in the sale of the securities
in respect of which this prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell
such securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions through brokers or
dealers may include block trades in which brokers or dealers will attempt to sell shares as agent but may position and resell as principal
to facilitate the transaction or in crosses, in which the same broker or dealer acts as agent on both sides of the trade. Any such dealer
may be deemed to be an underwriter, as such term is defined in the Securities Act, of the securities so offered and sold. If we offer
securities in a subscription rights offering to our existing securityholders, we may enter into a standby underwriting agreement with
dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase
on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription
rights offering for us.
Offers to purchase securities may be solicited
directly by us and the sale thereof may be made directly to institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof.
If so indicated in the applicable prospectus
supplement and/or other offering material, we may authorize agents and underwriters to solicit offers by certain institutions to purchase
securities at the public offering price set forth in the applicable prospectus supplement and/or other offering material pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates stated in the applicable prospectus supplement and/or other
offering material. Such delayed delivery contracts will be subject only to those conditions set forth in the applicable prospectus supplement
and/or other offering material.
Agents, underwriters and dealers may be entitled
under relevant agreements to indemnification against certain liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, underwriters and dealers may be required to make in respect thereof. The terms and conditions
of any indemnification or contribution will be described in the applicable prospectus supplement and/or other offering material.
We may also sell shares of our Class A common
stock through various arrangements involving mandatorily or optionally exchangeable securities, and this prospectus may be delivered in
connection with those sales.
We may engage in at the market offerings into
an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. To the extent that we make sales through one or
more underwriters or agents in at the market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other
at the market offering arrangement between us and the underwriters or agents. If we engage in at the market sales pursuant to any such
agreement or arrangement, we will issue and sell our securities through one or more underwriters or agents, which may act on an agency
basis or a principal basis. During the term of any such agreement or arrangement, we may sell securities on a daily basis in exchange
transactions or otherwise as we agreement with the underwriters or agents. Any such agreement or arrangement will provide that any securities
sold will be sold at prices related to the then-prevailing market prices for our securities. Therefore, exact figures regarding proceeds
that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement or arrangement,
we may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase blocks of our common stock. The
terms of any such agreement or arrangement will be set forth in more detail in the applicable prospectus supplement.
We may enter into derivative, sale or forward
sale transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement and/or other offering material indicates, in connection with those transactions, the third parties
may sell securities covered by this prospectus and the applicable prospectus supplement and/or other offering material, including in short
sale transactions and by issuing securities not covered by this prospectus but convertible into, or exchangeable for or representing beneficial
interests in such securities covered by this prospectus, or the return of which is derived in whole or in part from the value of such
securities. The third parties may use securities received under derivative, sale or forward sale transactions, or securities pledged by
us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received
from us in settlement of those transactions to close out any related open borrowings of stock. The third party in such sale transactions
will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment) and/or other offering
material.
Underwriters, broker-dealers or agents may receive
compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or agents may also receive compensation
from the purchasers of shares for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular
underwriter, broker-dealer or agent might be in excess of customary commissions and will be in amounts to be negotiated in connection
with transactions involving shares. In effecting sales, broker-dealers may arrange for other broker-dealers to participate in the resales.
Each series of securities will be a new issue
and, other than the common stock, which is listed on The Nasdaq Stock Market, will have no established trading market. We may elect to
list any series of securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless otherwise specified
in the applicable prospectus supplement and/or other offering material, we shall not be obligated to do so. No assurance can be given
as to the liquidity of the trading market for any of the securities.
Agents, underwriters and dealers may engage
in transactions with, or perform services for us and our respective subsidiaries in the ordinary course of business.
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment
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. Short covering transactions involve purchases of the securities
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 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. An underwriter may carry out these transactions on The Nasdaq Stock Market in the over-the-counter
market or otherwise.
The place and time of delivery for securities
will be set forth in the accompanying prospectus supplement and/or other offering material for such securities.
LEGAL MATTERS
The validity of the securities offered hereby
has been passed upon for us by Shartsis Friese LLP. Any underwriters or agents will be advised about
other issues relating to the offering by counsel to be named in any applicable prospectus supplement.
EXPERTS
The audited financial statements incorporated
by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance on the
report of Prager Metis CPA’s LLC, independent registered public accountants, upon the authority of said firm 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 relating to securities offered by this prospectus. This prospectus, which constitutes a part of the
registration statement, does not contain all of the information set forth in the registration statement or the exhibits thereto. For more
information regarding us and the securities offered by this prospectus, we refer you to the full registration statement, including the
exhibits filed therewith. This prospectus summarizes certain provisions of certain contracts and other documents filed as exhibits to
which we refer you. Because the summaries may not contain all of the information that you may find important, you should review the full
text of those documents.
You may access our SEC filings, including this
registration statement, at the SEC’s website at www.sec.gov. We are subject to the information reporting requirements of the Exchange
Act and file reports, proxy statements, and other information with the SEC. These reports, proxy statements and other information will
be available for review at the SEC’s website referred to above.
We
also maintain an Internet website at www.cardiodiagnosticsinc.com. Through our website, we make or will make available, free of charge,
the following documents as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC: our Annual
Reports on Form 10-K; our proxy statements for our annual and special stockholder meetings; our Quarterly Reports
on Form 10-Q; our Current Reports on Form 8-K; Forms 3, 4 and 5 and Schedules 13D and 13G; and amendments to those
documents. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this
prospectus.
If you would like additional copies
of this prospectus, you should contact us by telephone or in writing:
Cardio
Diagnostics Holdings, Inc.
311 W. Superior Street, Suite 444
Chicago, IL 60654
Phone: (855) 226-9991
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference
much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus.
Because we are incorporating by reference future filings with the SEC,
this prospectus is continually updated, and those future filings may modify or supersede some of the information included or incorporated
in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the
statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus
incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering
of the securities under the registration statement is terminated or completed:
| • |
Annual report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 31, 2023; |
| • |
Quarterly reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed on May 15, 2023, August 14, 2023 and November 13, 2023, respectively; |
| • |
Current reports on Form 8-K filed on March 13, 2023 and subsequently amended on June 5, 2023 and September 14, 2023, May 30, 2023, June 22, 2023, September 25, 2023, November 22, 2023, December 6, 2023, December 19, 2023 and January 4, 2024; |
| • |
Definitive Proxy Statement for our 2023 Annual Meeting of Stockholders, filed on October 27, 2023 and amended on November 22, 2023; |
| • |
The description of the Common Stock contained in Exhibit 4.5 to our Annual Report on Form 10-K filed on March 31, 2023. |
All documents filed by us pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of the offering
of the securities offered by this prospectus are incorporated by reference into this prospectus and form part of this prospectus from
the date of filing or furnishing of these documents.
Any statement contained in a document that is
incorporated by reference into this prospectus will be deemed to be modified or superseded for the purposes of this prospectus to the
extent that a statement contained in this prospectus, or in any other subsequently filed document which also is or is deemed to be incorporated
by reference into this prospectus, modifies or supersedes that statement. The modifying or superseding statement does not need to state
that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes.
Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Upon request, we will provide, without charge, to each
person who receives this prospectus, a copy of any or all of the documents incorporated by reference (other than exhibits to the documents
that are not specifically incorporated by reference in the documents). Please direct written or oral requests for copies to our Corporate
Secretary at:
Cardio Diagnostics Holdings,
Inc.
Attention: Corporate Secretary
311
W. Superior Street, Suite 444
Chicago, IL 60654
Phone: (855) 226-9991
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising
under the Securities Act, as amended, may be permitted to directors, officers, and controlling persons of the registrant pursuant to the
Company’s constituent documents, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling
person in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person connected
with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
Cardio Diagnostics
Holdings, Inc.
Up to $17,000,000
Common Stock
Preferred Stock
Warrants
Units
Subscription Rights
PROSPECTUS
The date of this prospectus is ,
2024
We have not authorized any dealer, salesperson or
other person to give any information or represent anything not contained in this prospectus. You must not rely on any unauthorized information.
If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus does not offer to sell any
securities in any jurisdiction where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder, shall create
any implication that the information in this prospectus is correct after the date hereof.
The information in this preliminary prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED JANUARY 26, 2024
PRELIMINARY PROSPECTUS SUPPLEMENT
Cardio Diagnostics
Holdings, Inc.
Up to $17,000,000
Common Stock
_________________
We have entered into an at the market offering
agreement (the “Sales Agreement”) with Craig-Hallum Capital Group LLC (the “Sales Agent”), relating to the sale
of the shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms
of the Sales Agreement, under this prospectus supplement and the accompanying prospectus, we may offer and sell shares of our common stock,
$0.00001 par value, having an aggregate offering price of up to $17.0 million from time to time through or to the Sales Agent, acting
as our agent or as principal.
Our shares of common stock and public warrants
are listed on the Nasdaq Capital Market (“Nasdaq”) under the symbols “CDIO” and “CDIOW,” respectively.
On January 25, 2024, the closing sale price per share of our common stock and public warrants was $2.04 and $0.1684, respectively.
Sales of our common stock, if any, under this
prospectus supplement and the accompanying prospectus may be made in sales deemed to be “at the market offerings” as defined
in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including, without limitation,
in ordinary brokers’ transactions, to or through a market maker, on or through Nasdaq or any other trading market where common stock
may be traded, in the over-the-counter market, in privately negotiated transactions, or through a combination of any such methods of sale.
If we and the Sales Agent agree on any method of distribution other than sales of shares of common stock on or through Nasdaq or another
existing trading market in the United States at market prices, we will file a further prospectus supplement providing all information
about such offering as required by Rule 424(b) under the Securities Act. The Sales Agent is not required to sell any specific number or
dollar amount of shares but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales
practices, on mutually agreed terms between the Sales Agent and us. There is no arrangement for funds to be received in any escrow, trust
or similar arrangement.
The compensation to the Sales Agent for sales
of our common stock under the Sales Agreement will be an amount equal to 2.5% of the gross proceeds of any sale of shares of our common
stock under the Sales Agreement. The amount of net proceeds we will receive from this offering, if any, will depend upon the actual number
of shares of our common stock sold and the market price at which such shares are sold. Because there is no minimum offering amount required
as a condition of this offering, the actual total public offering amount, commissions and net proceeds to us, if any, are not determinable
at this time. See “Plan of Distribution” beginning on page S-10 for additional information regarding the compensation
to be paid to the Sales Agent.
In connection with the sale of our common stock
on our behalf, the Sales Agent may be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation
of the Sales Agent may be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution
to the Sales Agent with respect to certain civil liabilities, including liabilities under the Securities Act.
The aggregate market value of our outstanding
common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 was $17,106,491, which was calculated based on 20,540,409
shares of common stock outstanding as of January 25, 2024, of which 3,832,134 shares were held by affiliates, and a price of $3.06 per
share, which was the closing price of our common stock on Nasdaq on January 2, 2024. We have not offered any securities pursuant to General
Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
We are an “emerging growth company,”
as that term is used in the Jumpstart Our Business Startups Act of 2012 and are subject to reduced public company reporting requirements.
Investing in our common stock involves a high degree of risk.
You should read this prospectus supplement and the accompanying prospectus carefully before you make your investment decision. See “Risk Factors” beginning on page S-6 of this prospectus supplement, the accompanying prospectus, and the other documents we file or have
filed with the Securities and Exchange Commission that are incorporated by reference in this prospectus supplement and in the accompanying
prospectus, for a discussion of the factors you should consider before investing in our common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Craig-Hallum
The date of this prospectus supplement is [•],
2024.
TABLE OF CONTENTS
We are offering to sell, and are seeking offers to buy, the
securities only in jurisdictions where such offers and sales are permitted. The distribution of this prospectus supplement and the accompanying
prospectus and the offering of the securities in certain jurisdictions may be restricted by law. Persons outside the United States who
come into possession of this prospectus supplement and the accompanying prospectus must inform themselves about and observe any restrictions
relating to the offering of the securities and the distribution of this prospectus supplement and the accompanying prospectus outside
the United States. This prospectus supplement and the accompanying prospectus do not constitute, and may not be used in connection with,
an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying prospectus
to or by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus supplement relates to the offering
of shares of our common stock. Before buying any shares of common stock offered hereby, we urge you to read carefully this prospectus
supplement and the accompanying prospectus that we have authorized for use in connection with this offering, together with the documents
incorporated by reference herein, as described under the heading “Incorporation of Certain Information by Reference.”
These documents contain important information that you should consider when making your investment decision. This prospectus supplement
contains information about the common stock offered hereby.
This document is in two parts. The first part
is this prospectus supplement, which describes the specific terms of the securities we are offering. The second part is the accompanying
prospectus, including the documents incorporated by reference therein, which provides more general information, some of which may not
apply to this offering. This prospectus supplement and the information incorporated by reference in this prospectus supplement also may
add to, update and change information contained in, or incorporated by reference into, the accompanying prospectus. Generally, when we
refer to this prospectus, we are referring to both parts of this document combined. To the extent there is a conflict between (i) the
information contained in this prospectus supplement and (ii) the information contained in the accompanying prospectus or in any document
incorporated by reference that was filed with the Securities and Exchange Commission (the “SEC”) before the date of this prospectus
supplement, you should rely on the information in this prospectus supplement. If any statement in one of these documents is inconsistent
with a statement in another document having a later date, for example, a document incorporated by reference in this prospectus supplement
or the accompanying prospectus, the statement in the document having the later date modifies or supersedes the earlier statement.
The accompanying prospectus is part of a registration
statement that we filed with the SEC using a shelf registration process. Under the shelf registration process, from time to time, we may
offer and sell any of the securities described in the accompanying prospectus separately or together with other securities described therein.
You should rely only on the information contained
in, or incorporated by reference into, this prospectus supplement and the accompanying prospectus and any related free writing prospectus
that we authorized to be distributed to you. We have not authorized anyone to provide you with different or additional information. If
anyone provides you with different or additional information, you should not rely on it. Neither we nor anyone acting on our behalf is
making an offer to sell these shares of common stock in any jurisdiction where the offer or sale is not permitted, and you should not
consider this prospectus supplement or the accompanying prospectus to be an offer or solicitation relating to the securities in any jurisdiction
in which such an offer or solicitation relating to the securities is not authorized. You should assume that the information contained
in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein is accurate
only as of their respective dates, regardless of the time of delivery of such documents or of any sale of securities. Our business, financial
condition, results of operations and prospects may have changed since those dates. Furthermore, you should not consider this prospectus
supplement or the accompanying prospectus to be an offer or solicitation relating to the securities if the person making the offer or
solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer or solicitation.
For purposes of this prospectus supplement
and the accompanying prospectus, references to “Company,” “Cardio,” “Cardio Diagnostics Holdings, Inc.,”
“we,” “us,” “our,” and “ours” refer to Cardio Diagnostics Holdings, Inc. and its wholly-owned
subsidiary, unless otherwise indicated or the context otherwise requires.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements regarding, among other things, our plans, strategies and prospects,
both business and financial. These statements are based on the beliefs and assumptions of our management. Although we believe that our
plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, we cannot provide
assurance that we will achieve or realize these plans, intentions or expectations. Forward-looking statements are inherently subject
to risks, uncertainties and assumptions. Generally, statements that are not historical facts, including statements concerning possible
or assumed future actions, business strategies, events or results of operations, are forward-looking statements. The words “anticipates,”
“believe,” “continue,” “could,” “estimate,” “expect,” “intends,”
“may,” “might,” “plan,” “possible,” “potential,” “predicts,” “project,”
“should,” “would” and similar expressions may identify forward-looking statements, but the absence of these
words does not mean that a statement is not forward-looking. Investors should read statements that contain these words carefully because
they:
| • |
|
discuss future expectations; |
| • |
|
contain projections of future results of operations or financial condition; or; |
| • |
|
state other “forward-looking” information. |
Below is a summary of material factors that
make an investment in our securities speculative or risky. Importantly, this summary does not address all of the risks and uncertainties
that the Company faces. Additional discussion of the risks and uncertainties summarized in this risk factor summary, as well as other
risks and uncertainties that the Company faces, can be found under the heading “Risk Factors” and elsewhere in this
prospectus supplement, the prospectus and documents that are incorporated by reference into the prospectus. including those described
in the section titled “Risk Factors” and elsewhere in this prospectus and the documents incorporated by reference into
this prospectus. The below summary is qualified in its entirety by those more complete discussions of such risks and uncertainties. You
should consider carefully the risks and uncertainties described under the heading “Risk Factors” herein and elsewhere
in subsequently filed documents that are incorporated by reference into the prospectus and, if applicable, in any accompany prospectus
supplement filed relating to a specific offering or sale, as part of your evaluation of an investment in the Company’s Securities.
Important factors that could cause such differences include, among other things, the following:
| • |
|
the possibility that we may be adversely impacted by economic, business, and/or competitive factors; |
| • |
|
our limited operating history makes it difficult to evaluate our business and prospects; |
| • |
|
the success, cost and timing of our product development and commercialization activities, including the degree to which Epi+Gen CHD™ and PrecisionCHD™, our currently-available tests, are accepted and adopted by patients, healthcare professionals and other participants in other key channels may not meet our current expectations; |
| • |
|
changes in applicable laws or regulations could negatively our current business plans; |
| • |
|
we may be unable to obtain and maintain regulatory clearance or approval for our tests, and any related restrictions and limitations of any cleared or approved product could negatively impact our financial condition; |
| • |
|
the pricing of our products and services and reimbursement for medical tests conducted using our products and services may not be sufficient to achieve our financial goals; |
| • |
|
we may be unable to successfully compete with other companies currently marketing or engaged in the development of products and services that could serve the same or similar functions as our products and services; |
| • |
|
the size and growth potential of the markets for our products and services, and our ability to serve those markets, either alone or in partnership with others may not meet our current expectations; |
| • |
|
we may be unable to maintain our existing or future licenses, or manufacturing, supply and distribution agreements; |
| • |
|
we may be unable to identify, in-license or acquire additional technology needed to develop new products or services; |
| • |
|
our estimates regarding expenses, future revenue, capital requirements and needs for additional financing may not be accurate; |
| • |
|
we may be unable to raise needed financing in the future on acceptable terms, if at all; |
| • |
|
we may be unable to maintain our listing on The Nasdaq Stock Market; |
| • |
|
the ongoing or future impact from the coronavirus disease or other global health crises could cause significant economic and social disruption, and such impact on our business is uncertain; and |
| • |
|
there are other risks and uncertainties indicated in this prospectus or included in any prospectus supplement, including those under the section entitled “Risk Factors” that will be included in any prospectus supplement, and other filings that have been made or will be made with the SEC by us that could materially alter our current expectations. |
These forward-looking statements are based on
information available as of the date of this prospectus, and our management’s current expectations, forecasts and assumptions, and
involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing
our views as of any subsequent date, and you should not place undue reliance on these forward-looking statements. We
do not undertake any obligation to update, add or to otherwise correct any forward-looking statements contained herein to reflect events
or circumstances after the date they were made, whether as a result of new information, future events, inaccuracies that become apparent
after the date hereof or otherwise, except as may be required under applicable securities laws.
All forward-looking statements attributable
to the Company or persons acting on its behalf are expressly qualified in their entirety by the foregoing cautionary statements. The Company
undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events
or otherwise, except as required by law.
You should not rely upon forward-looking statements
as predictions of future events. Forward-looking statements are based on management’s current expectations, estimates, forecasts
and projections about our business and the industry in which we operate, and management’s beliefs and assumptions are not guarantees
of future performance or development and involve known and unknown risks, uncertainties and other factors that are in some cases beyond
our control. While the Company believes there is a reasonable basis for its current expectations, views and assumptions, they are inherently
uncertain. The Company may not realize its expectations, and its views and assumptions may not prove correct. Actual results could differ
materially from those described or implied by such forward-looking statements. In evaluating forward-looking statements, investors should
specifically consider the following uncertainties and factors, among others (including those set forth under the heading “Risk
Factors” herein and in documents incorporated by reference into the prospectus), that could affect future performance and cause
actual results to differ materially from those matters expressed in or implied by forward-looking statements.
Before you invest in our securities,
you should be aware that the occurrence of one or more of the events described in this prospectus supplement, in the section designated
“Risk Factors” and elsewhere, may adversely affect us.
PROSPECTUS SUPPLEMENT SUMMARY
The following summary highlights basic information about us,
this offering, and selected information contained elsewhere in or incorporated by reference into this prospectus supplement. This summary
is not complete and does not contain all of the information that you should consider before deciding whether to invest in our common stock.
Before making an investment decision, you should review this entire prospectus supplement and the accompanying prospectus carefully, including
our consolidated financial statements and other information incorporated by reference in this prospectus supplement and the accompanying
prospectus. In addition, please read the “Risk Factors” section beginning on page S-6 of this prospectus supplement.
Company Overview
Cardio was formed to further develop and commercialize
a series of products for major types of cardiovascular disease and associated co-morbidities, including coronary heart disease (“CHD”),
stroke, heart failure and diabetes, by leveraging our Artificial Intelligence (“AI”)-driven Integrated Genetic-Epigenetic
Engine™. As a company, we aspire to give every American adult insight into their unique risk for various cardiovascular diseases.
Cardio aims to become one of the leading medical technology companies for enabling improved prevention, early detection and treatment
of cardiovascular disease. Cardio is transforming the approach to cardiovascular disease from reactive to proactive and hope to accelerate
the adoption of Precision Medicine for all. We believe that incorporating our solutions into routine practice in primary care and prevention
efforts can help alter the trajectory that nearly one in two Americans is expected to develop some form of cardiovascular disease by 2035.
According to the CDC, epigenetics is the study
of how a person’s behaviors and environment can cause changes that affect the way a person’s genes work. Unlike genetic changes,
epigenetic changes are reversible and do not change one’s DNA sequence, but they can change how a person’s body reads a DNA
sequence. We believe that we are the first company to develop and commercialize epigenetics-based clinical tests for cardiovascular disease
that have clear value propositions for multiple stakeholders including (i) patients, (ii) clinicians, (iii) hospitals/health systems,
(iv) employers and (v) payors.
An estimated 80% of cardiovascular disease (“CVD”)
is preventable, yet, it is responsible for one in every four deaths and remains the number one killer in the United States for both men
and women. Coronary heart disease is the most common type of CVD and the major cause of heart attacks. The enormous number of unnecessary
heart attacks and deaths associated with CHD is attributable to the failure of current primary prevention approaches in clinical practice
to effectively detect, reduce and monitor risk for CHD prior to life altering and costly health complications. Several reasons for this
failure include (i) the current in-person risk screening approach is incompatible with busy everyday life as demonstrated by the COVID-19
associated decrease in primary care visits for preventive screening; (ii) even if the current risk screening tests are taken, they only
identify 44% and 32% of men and women at high risk, respectively; and (iii) the lack of patient care plan personalization. A highly accessible,
personalized and precise solution for CHD prevention is not currently available.
Due to the ongoing threat from the COVID-19
virus and other potential widespread health threats, preventable illnesses such as CHD are expected to spike. Therefore, now more than
ever, there is an urgent need for a highly sensitive, scalable, at-home risk screening tool that can help physicians better direct care
and allow patients to receive the help they need sooner.
Our first test, Epi+Gen CHD™, which was
introduced for market testing in 2021, is a three-year symptomatic CHD risk assessment test targeting CHD events, including heart attacks.
In March 2023, we announced the launch of our second product, PrecisionCHD™, an integrated
epigenetic-genetic blood test for the early detection of coronary heart disease. The Company earned only $950 and $901 in revenue
for the years ended December 31, 2022 and 2021, respectively, all of which was generated through a telemedicine platform. Rather than
expend our resources actively pursuing the telemedicine sales channel, in mid- to late 2022, we started focusing our efforts more heavily
on establishing relationships with potential customers, a process that can take many months and up to as much as a year or more to finalize,
depending on the sales channel. For example, hospitals routinely take a year or longer to make purchasing decisions. While these relationships
take considerable time to establish, we believe that they provide far greater revenue potential for our existing and future tests.
We believe that our Epi+Gen CHD™ and PrecisionCHD™
tests are categorized as laboratory-developed tests, or “LDTs.” Under current Food & Drug Administration (“FDA”)
policy, an LDT does not require premarket authorization or other FDA clearance or approval. As such, we believe that the Epi+Gen CHD™
and PrecisionCHD™ tests do not require FDA premarket evaluation of our performance claims or marketing authorization, and such premarket
review and authorization has not been obtained. However, in September 2023, the FDA announced a proposed rule aimed at helping to ensure
the safety and effectiveness of LDTs. The proposed regulation would alter the FDA’s historical position by classifying LDTs as medical
devices, which would likely require us to adhere to a more stringent regulatory framework, including pre-market clearance or approval
requirements, quality system regulations, and post-market surveillance obligations. If this regulation is finalized and implemented, the
regulatory burden on our Company will be substantial, both in terms of cost, diversion of Company resources and time to market. Although
submissions that are pending before the FDA or that have been denied are not publicly available, to the best of our knowledge, no epigenetic-based
clinical test for cardiovascular disease has, to date, been cleared or approved by the FDA.
As a company in the early stages of its development,
the Company continuously reevaluates its business, the market in which it operates and potential new opportunities. The Company may seek
other alternatives within the healthcare field in order to grow its business and increase revenues. Such alternatives may include, but
not be limited to, combinations or strategic partnerships with other laboratory companies or with medical practices such as hospitalists
or behavioral health.
Further details concerning
our business, including information with respect to our assets, operations and development history, are provided in our Annual Report
on Form 10-K for the year ended December 31, 2022 and, once filed on or about April 1, 2024, our Annual Report on Form 10-K for the
year ended December 31, 2023, as revised or supplemented by our subsequent quarterly reports on Form 10-Q, and our current reports
on Form 8-K, all of which are incorporated herein by reference, and which may be amended, supplemented or superseded from time to
time by other reports we file with the SEC in the future. See “Incorporation of Certain Documents by Reference.” You
are encouraged to thoroughly review the documents incorporated by reference into this prospectus as they contain important information
concerning our business and our prospects.
Additional information
about us can be found in our most recent annual report on Form 10-K incorporated by reference herein together with any material changes
thereto contained in subsequently filed quarterly reports on Form 10-Q.
Our Annual Report on Form
10-K for the year ended December 31, 2022 and the subsequent reports filed pursuant to the Exchange Act provide additional information
about our business, operations and financial condition.
Recent Developments
In January 2024,
the American Medical Association granted and assigned dedicated Current Procedural Terminology (“CPT”®) Proprietary
Laboratory Analysis (“PLA”) codes, 0439U and 0440U, for our currently-available tests, Epi+Gen CHD™ and PrecisionCHD™,
respectively. Both CPT PLA codes will be effective on April 1, 2024. Receipt of these new CPT PLA codes is a significant step
toward payer billing and payment, which we believe will facilitate broader adoption of our tests.
In January 2024, India’s Patent Office
granted a patent to the University of Iowa Research Foundation (“UIRF”). The patent, which was co-invented by our founders,
Meeshanthini Dogan, Ph.D. and Robert Philibert, M.D. Ph.D., is exclusively licensed to Cardio by the UIRF.
Corporate Information
Mana Capital
Acquisition Corp. was formed on May 19, 2021 under the laws of the State of Delaware as a blank check company for the purpose of engaging
in a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination,
with one or more target businesses or entities. Cardio Diagnostics, Inc. (“Legacy Cardio”) was formed in January 2017
as an Iowa limited liability company (Cardio Diagnostics, LLC) and was subsequently incorporated as a Delaware C-Corp (Cardio Diagnostics,
Inc.) on September 6, 2019. Upon completion of the business combination between Mana Capital and Legacy Cardio on October 25, 2022, we
changed our name to Cardio Diagnostics Holdings, Inc.
Our corporate headquarters is located at 311
W. Superior Street, Suite 444, Chicago IL 60642. Our telephone number is (855) 226-9991 and our website address is cardiodiagnosticsinc.com.
The information contained on, or that can be accessed through, our website is not incorporated by reference in this prospectus and does
not form a part of this prospectus. The reference to our website address does not constitute incorporation by reference of the information
contained at or available through our website, and you should not consider it to be a part of this registration statement.
Emerging Growth Status
We are an “emerging growth company,”
as defined in Section 2(a) of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS
Act”), and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies
that are not emerging growth companies, including, but not limited to, not being required to comply with the auditor attestation requirements
of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”), reduced disclosure obligations
regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding
advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
Further, Section 102(b)(1) of the JOBS
Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private
companies (that is, those that have not had a registration statement under the Securities Act declared effective or do not have a class
of securities registered under the Securities Exchange Act of 1934, as amended the “Exchange Act”), are required to comply
with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition
period and comply with the requirements that apply to non-emerging growth companies but any such an election to opt out is
irrevocable. We have elected not to opt out of such extended transition period which means that when a standard is issued or revised
and it has different application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised
standard at the time private companies adopt the new or revised standard. This may make comparison of our financial statements with another
public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition
period difficult or impossible because of the potential differences in accounting standards used.
We will remain an emerging growth company until
the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the completion of the IPO, (b) in
which we have total annual gross revenue of at least $1.07 billion, or (c) in which we are deemed to be a large accelerated
filer, which means the market value of our Common Stock held by non-affiliates equaled or exceeded $700 million as of the
prior June 30, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt securities
during the prior three-year period.
Additionally, we are a “smaller reporting
company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced
disclosure obligations, including, among other things, providing only two years of audited financial statements. We will remain a smaller
reporting company until the last day of the fiscal year in which (1) the market value of our Common Stock held by non-affiliates
equaled or exceeded $250 million as of the end of the prior June 30th, or (2) our annual revenues equaled or exceeded $100 million
during such completed fiscal year and the market value of our Common Stock held by non-affiliates equaled or exceeded $700 million
as of the prior June 30th.
THE OFFERING
| Issuer |
|
Cardio Diagnostics Holdings, Inc. |
| Common stock offered by us |
|
Shares of our common stock having a maximum aggregate offering price of $17.0 million |
| Common stock outstanding prior to the offering |
|
20,540,409 shares as of January 25, 2024 |
| Manner of offering |
|
“At the market offering” that may be made from time to time through or to the Sales Agent, as sales agent or principal. See “Plan of Distribution” on page S-10 of this prospectus supplement. |
| Use of proceeds |
|
We currently intend to use any net proceeds from this offering for general corporate purposes, including working capital. See “Use of Proceeds” on page S-10 for additional information. |
| Risk factors |
|
An investment in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-6 of this prospectus supplement, the “Risk Factors” section in our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports filed on Form 10-Q, and any amendment or update thereto reflected in subsequent filings with the SEC, all of which are incorporated by reference herein, and other information included in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference in this prospectus supplement and the accompanying prospectus for a discussion of factors you should carefully consider before deciding to invest in our common stock. |
| Market for our common stock and warrants |
|
Our common stock and public warrants are listed on the Nasdaq Capital Market under the symbols “CDIO” and “CDIOW,” respectively. |
Unless otherwise noted, the number of our shares
of common stock outstanding is based on 20,540,409 shares of outstanding as of January 25, 2024, and excludes:
| • |
|
|
2,952,886 options, which expire at various times between May 6, 2032 and June 23, 2033 and
are exercisable at prices ranging from $1.26 to $3.90 per share, subject to adjustment for stock splits, reverse stock splits and other
similar events of recapitalization; |
| • |
|
|
5,749,993 shares of our Common Stock issuable upon the exercise of 3,250,000 public warrants and 2,499,993 sponsor warrants, each with an exercise price of $11.50 per share, subject to adjustment for stock splits, reverse stock splits and other similar events of recapitalization; |
| • |
|
|
2,104,627 shares of our common stock issuable upon the exercise of private placement warrants with exercise prices ranging between $3.90 and $6.21 per share, subject to adjustment for stock splits, reverse stock splits and other similar recapitalization events; and |
| • |
|
|
3368,237 shares of our common stock reserved for future issuance under our 2022 Equity Incentive Plan. |
RISK FACTORS
An investment in our common stock involves
a high degree of risk. Prior to making a decision about investing in our common stock, you should consider carefully the specific risk
factors discussed in the sections entitled “Risk Factors” contained herein as well as in our most recent Annual Report on
Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 31, 2023, our Quarterly Reports on Form 10-Q for the quarter
ended March 31, 2023, filed on May 15, 2023, and for the quarter ended September 30, 2023, filed on November 13, 2023, all of which are
incorporated into this prospectus supplement and the accompanying prospectus by reference in their entirety, as updated or superseded
by the risks and uncertainties described under similar headings in the other documents that are filed after the date hereof and incorporated
by reference into this prospectus supplement and the accompanying prospectus, together with other information in this prospectus supplement
and the accompanying prospectus and the documents incorporated by reference. These risks and uncertainties are not the only risks and
uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also
impair our business. Past financial performance may not be a reliable indicator of future performance, and historical trends should not
be unduly relied upon to anticipate results or trends in future periods. If any of the risks or uncertainties described in our SEC filings
or any additional risks and uncertainties actually occur, our business, financial condition, results of operations and cash flow could
be materially and adversely affected. In that case, the trading price of our common stock could decline, and you might lose all or part
of your investment. Please also read carefully the section above titled “Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to this Offering and an Investment
in Our Common Stock
Cardio has a history of losses and
may be unable to achieve or sustain profitability.
We have experienced net losses since its inception.
In the years ended December 31, 2022 and 2021 and nine months ended September 30, 2023, we incurred net losses of approximately $4.66
million, $620,000 and $6.99 million, respectively. Cardio acknowledges that its operating expenses and capital expenditures may increase
in the foreseeable future as it continues to expand its product offerings, increase its customer base, expand marketing channels, hire
additional employees and enhance technology, production and testing capabilities. The efforts to grow may prove more expensive than anticipated,
and we may not succeed in increasing our revenues and margins sufficiently to offset the potentially increased expenses. Accordingly,
we may not be able to achieve or sustain profitability, and we may incur significant losses for the foreseeable future.
Our latest financial information
may not be available at the time of the offering.
The information provided in this prospectus
supplement and prospectus, including the documents incorporated by reference, is based on historical financial information available as
of our last audited financial statements, and there may be material changes or developments that are not reflected in the most recent
financial information.
Our most recently audited financial statements
were as of December 31, 2022 and our last quarterly financial information that has been disclosed was with respect to the period ended
September 30, 2023. Investors should be aware that as of the date of the offering described in this prospectus supplement, the latest
financial statements of the Company for the period ended December 31, 2023, including the full fiscal year ended December 31, 2023, may
not yet have been prepared or audited and as a result may not have been made available to investors or disclosed in any securities filing
of the Company. Our fiscal year is the calendar year ended December 31, and we typically provide audited financial statements in our annual
report on Form 10-K, which is not due for the year ended December 31, 2023 until April 1, 2024. Due to the timing of the at the market
offering described in this prospectus supplement, investors consequently may not have the most current financial information for the fiscal
year ended December 31, 2023. This absence of current financial information may limit investors’ ability to assess our financial
performance, liquidity and overall financial health accurately. Investors should exercise caution and consider this absence of the latest
financial information when making any investment decision.
Fluctuations in the price of our
common stock, including as a result of actual or anticipated sales of shares by us and/or our directors, officers or stockholders, may
make our common stock more difficult to resell.
The market price and trading volume of our common
stock have been, and may continue to be, subject to significant fluctuations due not only to general stock market conditions, but also
to changes in sentiment in the market regarding the industry in which we operate, our operations, business prospects or liquidity or this
offering. In addition to the risk factors discussed in our periodic reports and in this prospectus supplement, the price and volume volatility
of our common stock may be affected by actual or anticipated sales of common stock by us and/or our directors, officers or stockholders,
whether in the market, in connection with business acquisitions, in this offering or in subsequent offerings. Stock markets in general
have at times experienced extreme volatility unrelated to the operating performance of particular companies. These broad market fluctuations
may adversely affect the trading price of our common stock, regardless of our operating results.
As a result, these fluctuations in the market
price and trading volume of our common stock may make it difficult to predict the market price of our common stock in the future, cause
the value of your investment to decline and make it more difficult to resell our common stock.
We will have broad discretion in
how to use the net proceeds of this offering, and we may not use these proceeds in a manner desired by our investors.
We will have broad discretion as to the use
of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of this offering. 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 needs may change as the business
and the industry that we address evolves. As a result, the proceeds to be received in this offering may be used in a manner significantly
different from our current expectations. It is possible that the proceeds will be invested in a way that does not yield a favorable, or
any, return. The failure of our management to use such funds effectively could have a material adverse effect on our business, financial
condition, operating results and cash flow.
If you purchase our common stock
in this offering, you may incur immediate and substantial dilution in the net tangible book value of your shares.
The offering price per share of common stock
in this offering may exceed the net tangible book value per share outstanding prior to this offering. Because the sales of the common
stock offered hereby will be made directly into the market, the prices at which we sell these shares will vary, and these variations may
be significant. Purchasers of the common stock we sell, as well as holders of our existing shares of common stock, will experience significant
dilution if we sell common stock at prices significantly below the price at which they invested. See the section entitled “Dilution”
below for a more detailed discussion of the dilution you might incur if you purchase common stock in this offering.
You may experience future dilution
as a result of future equity offerings or acquisitions.
In order to raise additional capital, we may
in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at
prices that may not be the same as the price or prices per share in this offering. We may sell shares or other securities in any future
offering at a price per share that is less than the price per share paid by 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 our common stock, or securities convertible or exchangeable into our common stock, in future transactions or acquisitions may
be higher or lower than the price per share paid by investors in this offering.
In addition, we may engage in one or more potential
acquisitions in the future, which could involve issuing our common stock as some or all of the consideration payable by us to complete
such acquisitions. If we issue common stock or securities linked to our common stock, the newly issued securities may have a dilutive
effect on the interests of the holders of our common stock. Additionally, future sales of newly issued shares used to effect an acquisition
could depress the market price of our common stock.
It is not possible to predict the
number of shares of common stock that will be sold under the Sales Agreement.
Subject to certain limitations in the Sales
Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to the Sales Agent at any time throughout
the term of the Sales Agreement. The number of shares of common stock that are sold through the Sales Agent after our delivery of a placement
notice will fluctuate based on a number of factors, including the market price of our common stock during the sales period, any limits
we may set with the Sales Agent in any applicable placement notice and the demand for the shares of common stock. If the market price
of our common stock during the sales period declines, we would be able to potentially sell a higher number of shares than the number based
on the current market price of our common stock and, in any event, we may choose to sell a lower number of shares than the $17.0 million
of our shares set forth on the cover of this prospectus supplement.
The common stock offered hereby will
be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares of common stock
in this offering at different times likely will pay different prices, and accordingly may experience different levels of dilution and
different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and number
of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions we may
place in any applicable placement notice, there is no minimum or maximum sales price for shares to be sold in this offering. Investors
may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the
prices they paid.
Common stock representing a substantial
percentage of our outstanding shares may be sold in this offering and such shares will be freely tradable, which could cause the price
of the common stock to decline.
A substantial number of shares of common stock
may be sold in the public market in this offering, and all of the shares sold in the offering will be freely tradable without restriction
or further registration under the Securities Act. These sales, and any future sales of a substantial number of shares of common stock
in the public market, or the perception that such sales may occur, may cause the market price of the common stock to decline. This could
make it more difficult for you to sell your shares at a time and price that you deem appropriate and could impair our ability to raise
capital through the sale of additional equity securities.
Our common stock may become the target
of a “short squeeze.”
Recently, the securities of several companies
have increasingly experienced significant and extreme volatility in stock price due to short sellers of common stock and buy-and-hold
decisions of longer investors, resulting in what is sometimes described as a “short squeeze.” Short squeezes have caused extreme
volatility in those companies and in the market and have led to the price per share of those companies to trade at a significantly inflated
rate that is disconnected from the underlying value of the company. Sharp rises in a company’s stock price may force traders in
a short position to buy the shares to avoid even greater losses. Many investors who have purchased shares in those companies at an inflated
rate face the risk of losing a significant portion of their original investment as the price per share has declined steadily as interest
in those shares have abated. We may be a target of a short squeeze, and investors may lose a significant portion or all of their investment
if they purchase our shares at a rate that is significantly disconnected from our underlying value.
The Company has never declared dividends
and may not do so in the future.
Cardio has not declared or paid any cash dividends
on its common stock to date. The payment of dividends in the future will be dependent on our earnings and financial condition and on such
other factors as our Board considers appropriate. Unless and until Cardio pays dividends, stockholders may not receive a return on their
shares. There is no present intention by the Board to pay dividends on our common stock.
If we are unable to implement and
maintain effective internal controls over financial reporting in the future, we may not be able to report financial results accurately
or prevent fraud. In that case, investors may lose confidence in the accuracy and completeness of our financial reports and the market
price of our common stock may be negatively affected.
Maintaining effective internal control over
financial reporting is necessary for Cardio to produce reliable financial reports and is important in helping to prevent financial fraud.
If we are unable to maintain adequate internal controls, our business and operating results could be harmed.
Pursuant to Section 404(a) of the Sarbanes-Oxley
Act and the related rules of the SEC, our management is required to, among other things, assess annually the effectiveness of our internal
control over financial reporting and certify that we have established effective disclosure controls and procedures and internal controls
over financial reporting for the period covered by the respective report.
Preparing our consolidated financial statements
involves a number of complex manual and automated processes that are dependent on individual data input or review and require significant
management judgment. One or more of these elements may result in errors that may not be detected and could result in a material misstatement
of our consolidated financial statements. Management’s significant estimates and judgments with respect to financial reporting are
discussed and disclosed in the consolidated financial statements included in our Annual Report on Form 10-K for each fiscal year.
The process of designing and implementing effective
internal controls and procedures, and expanding our internal accounting capabilities, is a continuous effort that requires us to anticipate
and react to changes in our business and the economic and regulatory environments and expend significant resources to establish and maintain
a system of internal controls that is adequate to satisfy our reporting obligations as a public company. The standards that must be met
for management to assess the internal control over financial reporting as effective are complex and require significant documentation,
testing and possible remediation to meet the detailed standards. We cannot be certain at this time whether we will be able to successfully
complete the continuing implementation of controls and procedures or the certification and attestation requirements of Section 404(a)
of Sarbanes-Oxley on a continuous basis.
If a material misstatement occurs in the future,
we may fail to meet our future reporting obligations, we may need to restate our financial results, and the price of our common stock
may decline. Any failure of our internal controls could also adversely affect the results of the periodic management evaluations and any
future annual independent registered public accounting firm attestation reports regarding the effectiveness of our internal control over
financial reporting that may be required when Section 404 of Sarbanes-Oxley becomes fully applicable to us. Effective internal controls
are necessary for us to produce reliable financial reports and are important to helping prevent financial fraud. If we cannot provide
reliable financial reports or prevent fraud, our business and results of operations could be harmed, investors could lose confidence in
our reported financial information, and the trading price of our common stock could drop significantly.
Nasdaq may delist our securities
from trading on its exchange, which could limit investors’ ability to make transactions in our securities and subject us to additional
trading restrictions.
Our common stock and public warrants are currently
listed on the Nasdaq Capital Market. If Nasdaq delists our securities from trading on its exchange, we could face significant material
adverse consequences, including:
| • |
|
a limited availability of market quotations for our securities; |
| • |
|
reduced liquidity with respect to our securities; |
| • |
|
a determination that shares of our common stock are “penny stock,” which will require brokers trading in our shares to adhere to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market for our shares; |
| • |
|
a limited amount of news and analyst coverage; and |
| • |
|
a decreased ability to issue additional securities or obtain additional financing in the future. |
During 2023, the Company received two deficiency
letters from the Nasdaq Listing Qualifications Department notifying the Company that it was out of compliance with the minimum bid requirement
and the minimum stockholders equity requirement, respectively. In both instances, the Company was able to regain compliance within the
grace period provided by the Nasdaq listing rules. However, there is no assurance that in the future we will not once again fall out of
compliance with one or more Nasdaq listing requirements, and we cannot guarantee that we would be able to regain compliance within the
time period set forth in the applicable listing rule.
If our securities are delisted from Nasdaq due
to failure to satisfy any applicable Nasdaq listing requirement, such delisting would have a material adverse impact on the trading price
and ability to transfer our securities.
USE OF PROCEEDS
In accordance with the terms of the Sales Agreement,
under this prospectus supplement and the accompanying prospectus, we may issue and sell shares of our common stock having aggregate gross
sales proceeds of up to $17.0 million from time to time through or to the Sales Agent. The amount of net proceeds from this offering will
depend upon the number of shares of our common stock sold and the market prices at which they are sold. Further, because there is no minimum
offering amount required as a condition of this offering, the actual total public offering amount, commissions and net proceeds to us,
if any, are not determinable at this time. There can be no assurance that we will be able to sell any shares under or fully utilize the
Sales Agreement as a source of financing.
We currently intend to use any net proceeds
from this offering for general corporate purposes, including working capital. Our management will have broad discretion in the allocation
of the net proceeds of this offering for any purpose, and investors will be relying on the judgment of our management with regard to the
use of these net proceeds.
DILUTION
If you invest in our common stock, your interest
will be diluted to the extent the price per share you pay in this offering exceeds the net tangible book value per share of our common
stock immediately after you purchase shares in this offering. As of September 30, 2023, our net tangible book value was approximately
$2.26 million, or approximately $0.17 per share, based on 13,117,325 shares of our common stock outstanding as of September 30, 2023.
Our net tangible book value per share represents the amount of our total tangible assets reduced by the amount of our total liabilities,
divided by the total number of shares of our common stock outstanding as of September 30, 2023.
After giving effect to the sale of our common
stock in the assumed aggregate amount of $17.0 million at an assumed offering price of $2.04 per share, which is the last reported sale
price of our common shares on the Nasdaq on January 25, 2024 and after deducting estimated offering expenses and commissions payable by
us, our net tangible book value as of September 30, 2023 would have been approximately $18.59 million, or $0.87 per share. This would
represent an immediate increase in net tangible book value of $0.70 per share to our existing stockholders and an immediate dilution in
net tangible book value of $1.17 per share to new investors in this offering.
The following table illustrates this calculation
on a per common share basis:
| Assumed public offering price per share |
|
$ |
2.04 |
|
| Net tangible book value per share at September 30, 2023 |
|
$ |
0.17 |
|
| Increase in net tangible book value per share attributable to the offering |
|
$ |
0.70 |
|
| As adjusted net tangible book value per share after giving effect to the offering |
|
$ |
0.87 |
|
| Dilution in net tangible book value per share to new investors in this offering |
|
$ |
1.17 |
|
Notwithstanding the assumptions reflected in
this table, the shares sold in this offering, if any, will be sold from time to time at various prices. The dilution per share to new
investors purchasing our common stock in this offering will depend on the number and price of shares of our common stock that are sold
in this offering.
The number of common shares shown as outstanding
in the table above is based on 13,117,325 shares outstanding as of September 30, 2023 and excludes:
| • |
|
|
2,952,886 options which expire at various times between May 6, 2032 and June 23, 2033 and
are exercisable at prices ranging from $1.26 to $3.90 per share, subject to adjustment for stock splits, reverse stock splits and other
similar events of recapitalization; |
| • |
|
|
5,749,993 shares of our Common Stock issuable upon the exercise of 3,250,000 public warrants and 2,499,993 sponsor warrants, each with an exercise price of $11.50 per share, subject to adjustment for stock splits, reverse stock splits and other similar events of recapitalization, expiring on October 25, 2027; and |
| • |
|
|
2,104,627 shares of our common stock issuable upon the exercise of private placement warrants with exercise prices ranging between $3.90 and $6.21 per share, subject to adjustment for stock splits, reverse stock splits and other similar recapitalization events and expiring at various times in 2026 and 2027. |
Note that the above dilution information is
based on 13,117,325 shares of common stock outstanding at September 30, 2023. We issued an additional 7,423,084 shares of our common stock
in the fourth quarter of 2023 upon conversion of then-outstanding convertible debentures and settlement of vested restricted stock units.
Assuming solely for purposes of this dilution presentation that we had 20,540,409 shares of common stock outstanding at September 30,
2023, which is the actual shares outstanding total at December 31, 2023 and January 25, 2024, and the net tangible book value per share
at September 30, 2023 remained as set forth above, the dilution in net tangible book value per share to new investors in this offering
would have been $1.40.
To the extent that outstanding options are exercised
or other shares are issued, investors purchasing our common stock in this offering may experience further dilution. In addition, we may
choose to issue additional common shares, or securities convertible into or exchangeable for common shares, in the future. The issuance
of these securities could result in further dilution for investors purchasing our common stock in this offering.
PLAN OF DISTRIBUTION
We have entered into an at the market offering
agreement (the “Sales Agreement”) with Craig-Hallum Capital Group LLC (the “Sales Agent”), under which we may
issue and sell from time to time up to $17.0 million of our common stock through or to the Sales Agent as our sales agent or principal.
Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an “at the market offering”
as defined in Rule 415 under the Securities Act, including, without limitation, in ordinary brokers’ transactions, to or through
a market maker, on or through Nasdaq or any other trading market where common stock may be traded, in the over-the-counter market, in
privately negotiated transactions or through a combination of any such methods. If we and the Sales Agent agree on any method of distribution
other than sales of shares of common stock on or through Nasdaq or another existing trading market in the United States at market prices,
we will file a further prospectus supplement providing all information about such offering as required by Rule 424(b) under the Securities
Act. If agreed between us and the Sales Agent, the Sales Agent may purchase shares of our common stock as principal.
The Sales Agent will offer our common stock
subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise agreed upon by us and the Sales Agent. We
will designate the maximum amount of common stock to be sold through the Sales Agent on a daily basis or otherwise determine such maximum
amount together with the Sales Agent. Subject to the terms and conditions of the Sales Agreement, the Sales Agent will use its commercially
reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us. We may instruct the Sales Agent
not to sell common stock if the sales cannot be effected at or above the price designated by us in any such instruction. The Sales Agent
or we may suspend the offering of our common stock being made through the Sales Agent under the Sales Agreement upon proper notice to
the other party. The Sales Agent and we each have the right, by giving written notice as specified in the Sales Agreement, to terminate
the Sales Agreement in each party’s sole discretion at any time.
The aggregate compensation payable to the Sales
Agent as sales agent equals 2.5% of the gross sales price of the shares sold through it pursuant to the Sales Agreement. We have also
agreed to reimburse the Sales Agent up to $55,000 for its legal expenses incurred in connection with this offering, plus an additional
$5,000 payable quarterly for ongoing due diligence requirements, plus reimbursement of incidental expenses incurred by the Sales Agent
in connection with the offering. We estimate that the total expenses of the offering payable by us, excluding commissions payable under
the Sales Agreement, will be approximately $250,000.
The remaining sales proceeds, after deducting
any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection
with the sales, will equal our net proceeds for the sale of such common stock.
The Sales Agent will provide written confirmation
to us following the close of trading on the Nasdaq Capital Market on each day in which common stock is sold through it as agent under
the Sales Agreement. Each confirmation will include the number of shares of common stock sold through it as agent on that day, the volume
weighted average price of the shares sold, the percentage of the daily trading volume and the net proceeds to us.
We will report at least quarterly the number
of shares of common stock sold through the Sales Agreement, the net proceeds to us and the compensation paid by us to the Sales Agent
in connection with the sales of common stock.
The settlement for sales of common stock between
us and the Sales Agent will occur on the second trading day following the date on which the sale was made, or any such other settlement
cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
In connection with the sales of our common stock
on our behalf, the Sales Agent may be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation
paid to the Sales Agent may be deemed to be underwriting commissions or discounts. We have agreed in the Sales Agreement to provide indemnification
and contribution to the Sales Agent against certain liabilities, including liabilities under the Securities Act. To the extent required
by Regulation M promulgated under the Exchange Act, the Sales Agent will not engage in any transactions that stabilizes our common stock
while the offering pursuant to this prospectus supplement and the accompanying prospectus is ongoing.
The Sales Agent and/or its affiliates have provided,
and may in the future provide, various investment banking and other financial services for us for which services they have received and,
may in the future receive, customary fees. In the course of its business, the Sales Agent may trade our securities for its own account
or for the accounts of customers, and, accordingly, the Sales Agent may at any time hold long or short positions in such securities.
This prospectus supplement and the accompanying
prospectus in electronic format may be made available on a website maintained by the Sales Agent, and the Sales Agent may distribute this
prospectus supplement and the accompanying prospectus electronically.
Our common stock is listed on the Nasdaq Capital
Market and trades under the symbol “CDIO.” The transfer agent of our common stock is Continental Stock Transfer & Trust
Company.
LEGAL MATTERS
The validity of the securities offered hereby
has been passed upon for us by Shartsis Friese LLP, San Francisco, California. Ellenoff Grossman & Schole LLP, New York, New York,
is counsel for Craig-Hallum Capital Group LLC in connection with this offering.
EXPERTS
The audited financial statements incorporated
by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance on the
report of Prager Metis CPA’s LLC, independent registered public accountants, upon the authority of said firm 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 relating to securities offered by this prospectus. This prospectus, which constitutes a part of the
registration statement, does not contain all of the information set forth in the registration statement or the exhibits thereto. For more
information regarding us and the securities offered by this prospectus, we refer you to the full registration statement, including the
exhibits filed therewith. This prospectus summarizes certain provisions of certain contracts and other documents filed as exhibits to
which we refer you. Because the summaries may not contain all of the information that you may find important, you should review the full
text of those documents.
You may access our SEC filings, including this
registration statement, at the SEC’s website at www.sec.gov. We are subject to the information reporting requirements of the Exchange
Act and file reports, proxy statements, and other information with the SEC. These reports, proxy statements and other information will
be available for review at the SEC’s website referred to above.
We
also maintain an Internet website at www.cardiodiagnosticsinc.com. Through our website, we make or will make available, free of charge,
the following documents as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC: our Annual
Reports on Form 10-K; our proxy statements for our annual and special stockholder meetings; our Quarterly Reports
on Form 10-Q; our Current Reports on Form 8-K; Forms 3, 4 and 5 and Schedules 13D and 13G; and amendments to those
documents. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this
prospectus.
If you would like additional copies
of this prospectus, you should contact us by telephone or in writing:
Cardio
Diagnostics Holdings, Inc.
311 W. Superior Street, Suite 444
Chicago, IL 60654
Phone: (855) 226-9991
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference
much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus.
Because we are incorporating by reference future filings with the SEC,
this prospectus is continually updated, and those future filings may modify or supersede some of the information included or incorporated
in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the
statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus
incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering
of the securities under the registration statement is terminated or completed:
| • |
Annual report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 31, 2023; |
| • |
Quarterly reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed on May 15, 2023, August 14, 2023 and November 13, 2023, respectively; |
| • |
Current reports on Form 8-K filed on March 13, 2023 and subsequently amended on June 5, 2023 and September 14, 2023, May 30, 2023, June 22, 2023, September 25, 2023, November 22, 2023, December 6, 2023, December 19, 2023 and January 4, 2024; |
| • |
Definitive Proxy Statement for our 2023 Annual Meeting of Stockholders, filed on October 27, 2023 and amended on November 22, 2023; |
| • |
The description of the Common Stock contained in Exhibit 4.5 to our Annual Report on Form 10-K filed on March 31, 2023. |
All documents filed by us pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of the offering
of the securities offered by this prospectus are incorporated by reference into this prospectus and form part of this prospectus from
the date of filing or furnishing of these documents.
Any statement contained in a document that is
incorporated by reference into this prospectus will be deemed to be modified or superseded for the purposes of this prospectus to the
extent that a statement contained in this prospectus, or in any other subsequently filed document which also is or is deemed to be incorporated
by reference into this prospectus, modifies or supersedes that statement. The modifying or superseding statement does not need to state
that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes.
Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Upon request, we will provide, without charge, to each
person who receives this prospectus, a copy of any or all of the documents incorporated by reference (other than exhibits to the documents
that are not specifically incorporated by reference in the documents). Please direct written or oral requests for copies to our Corporate
Secretary at:
Cardio Diagnostics Holdings,
Inc.
Attention: Corporate Secretary
311
W. Superior Street, Suite 444
Chicago, IL 60654
Phone: (855) 226-9991
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising
under the Securities Act, as amended, may be permitted to directors, officers, and controlling persons of the registrant pursuant to the
Company’s constituent documents, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling
person in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person connected
with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
PART II
INFORMATION NOT REQUIRED
PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated
expenses, other than sales agent commissions, payable by us in connection with the sale of the securities being registered hereby:
| SEC registration fee |
|
$ |
2,510 |
|
| FINRA filing fee |
|
|
3,050 |
|
| Accounting fees and expenses |
|
|
3,000 |
|
| Legal fees and expenses |
|
|
234,940 |
|
| Miscellaneous (including any applicable listing fees, printing fees, and transfer agent fees and expenses) |
|
|
6,500 |
|
| Total |
|
$ |
250,000 |
|
Item 15. Indemnification of Directors and Officers.
Our Charter provides that our officers and directors
will be indemnified by us to the fullest extent authorized by Delaware law, as it now exists or may in the future be amended. In addition,
our Charter provides that our directors will not be personally liable for monetary damages to us or our stockholders for breaches of their
fiduciary duty as directors, unless they violated their duty of loyalty to us or our stockholders, acted in bad faith, knowingly or intentionally
violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived an improper
personal benefit from their actions as directors.
We have or intend to enter into agreements with
our officers and directors to provide contractual indemnification in addition to the indemnification provided for in the Charter. Our
Bylaws also permit us to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions,
regardless of whether Delaware law would permit such indemnification. We have purchased a policy of directors’ and officers’
liability insurance that insures our officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances
and insures us against our obligations to indemnify our officers and directors. Our officers and directors have agreed to waive (and any
other persons who may become an officer or director prior to the initial business combination will also be required to waive) any right,
title, interest or claim of any kind in or to any monies in the trust account, and not to seek recourse against the trust account for
any reason whatsoever, including with respect to such indemnification.
These provisions may discourage stockholders
from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing
the likelihood of derivative litigation against officers and directors, even though such an action, if successful, might otherwise benefit
us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement
and damage awards against officers and directors pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers, or control persons, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits and Financial Statement Schedules.
The following is a list of exhibits filed as
part of the registration statement or are incorporated herein by reference into the registration statement:
__________
| * | | If required, to be filed by amendment or under subsequent Current Report on Form 8-K. |
| ‡ | | Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with
Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon
its request; provided, however, that the Registrant may request confidential treatment pursuant to Rule 24b-2 of the Exchange
Act, as amended, for any schedule or exhibit so furnished. |
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
| |
1. |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| |
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| |
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
| |
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that the undertakings set forth in paragraphs
(1)(i), (1)(ii) and (1)(iii) above 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. Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement; and
B. Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such effective date.
| |
5. |
That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iv) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| |
6. |
That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
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 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 of 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. |
| |
8. |
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois, on this 26th day of January, 2024.
| |
Cardio Diagnostics Holdings, Inc. |
| |
|
|
| |
By: |
/s/ Meeshanthini V. Dogan |
| |
|
Meeshanthini V. Dogan |
| |
|
Chief Executive Officer |
POWERS OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes
and appoints Meeshanthini V. Dogan and Elisa Luqman, and each one of them, as her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for her and in their name, place, and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-3, 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 and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents
or any of them, or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates
indicated.
| Name |
|
Position |
|
Date |
| |
|
|
|
/s/ Meeshanthini
V. Dogan
Meeshanthini V. Dogan |
|
Chief Executive Officer, Director
(principal executive officer) |
|
January 26, 2024 |
| |
|
|
|
/s/ Elisa Luqman
Elisa Luqman |
|
Chief Financial Officer
(principal financial officer and principal accounting
officer) |
|
January 26, 2024 |
| |
|
|
|
/s/ Warren Hosseinion
Warren Hosseinion |
|
Director, Chair |
|
January 26, 2024 |
| |
|
|
|
/s/ Paul Burton
Paul Burton |
|
Director |
|
January 26, 2024 |
| |
|
|
| /s/ James Intrater |
Director |
January 26, 2024 |
| James Intrater |
|
|
| |
|
|
|
/s/ Stanley K.
Lau
Stanley K. Lau |
|
Director |
|
January 26, 2024 |
| |
|
|
|
/s/ Oded Levy
Oded Levy |
|
Director |
|
January 26, 2024 |
| |
|
|
|
/s/ Robert Philibert
Robert Philibert |
|
Director |
|
January 26, 2024 |
Exhibit 1.2
AT THE MARKET
OFFERING AGREEMENT
January 26,
2024
Craig-Hallum
Capital Group LLC
222 South
9th Street, Suite 350
Minneapolis,
MN 55402
Ladies
and Gentlemen:
Cardio
Diagnostics Holdings, Inc., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement
(this “Agreement”) with Craig-Hallum Capital Group LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement included in the Registration Statement at the Effective
Time and any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares included in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $17,000,000 of securities of the Company
to be filed on or about the Execution Time, including exhibits and financial statements and any prospectus supplement relating to the
Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B,
as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration
statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means the Nasdaq Capital Market.
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to such number of shares (the “Shares”)
of the Company’s common stock, $0.00001 par value per share (“Common Stock”), that does not exceed (a) the number
or dollar amount of shares of Common Stock registered on the Prospectus Supplement, pursuant to which the offering is being made, (b)
the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock issuable upon exercise, conversion
or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or
(c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering of the Shares to not satisfy the
eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement
on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained
herein, the parties hereto agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price
of Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation
in connection with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
following the effectiveness of the Registration Statement the Company will issue and agrees to sell Shares from time to time through
the Manager, acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the
Company, on the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales
(“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company
will designate the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d))
and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its
commercially reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The
gross sales price of the Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the
Manager under this Section 2(b) on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the
Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the
Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager
shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed
by the Manager and the Company pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board
of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company,
and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed
promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that
such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder
prior to the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415 under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market
for the Common Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided
that the Manager receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided
in the “Plan of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new
Prospectus Supplement disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 2.5% of the gross
sales price of the Shares, which placement fee shall only be payable to the Manager and deducted by the Manager from the gross sales
price for any respective sale of Shares sold under the Registration Statement as and when Shares have been taken down from the Registration
Statement and actually sold to a third party pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate
of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal
at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the
Broker Fee and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager
with respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New
York City time) on the second (2nd) Trading Day (and on and after May 28, 2024 (or such later date on which the Commission’s final
rule with respect to the shortening of the securities transaction settlement cycle becomes effective), on the first (1st) Trading Day,
or any such shorter settlement cycle as may be in effect pursuant to Rule 15c6-1 under the
Exchange Act from time to time) following the date on which such sales are made (each, a “Settlement Date”).
On or before the Trading Day prior to each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Manager’s or its designee’s account (provided that the Manager shall have given the
Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”)
through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties
hereto which Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company agrees
that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a Settlement
Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the Manager
harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Manager any commission, discount or
other compensation to which the Manager would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified by the Company’s
delivery of an updated Disclosure Schedule or otherwise, as necessary to relate to the Registration Statement and the Prospectus as amended
as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company
shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company
of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.
(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders
of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement
or other similar transaction) (a “Distribution” and the record date for the determination of stockholders entitled
to receive the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales of
Shares pursuant to a Sales Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date
and the Record Date shall be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the
delivery of Shares on the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in
Section 2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of
such Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason
in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter
into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the
Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms
of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms
of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares
by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to
be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager
in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”)
and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel,
accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents
required by the Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if,
after giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser
of (A) together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under
the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement
by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under
no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than
the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer,
and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount
of Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of
its intent to sell any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time
and on each such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement,
as set forth below, except as set forth in the Registration Statement, the Prospectus, the SEC Reports or the Disclosure Schedule attached
as Exhibit A to this Agreement, which exceptions shall be incorporated in and deemed to modify and be part of the representations
and warranties made hereunder.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares
and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of
the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other “Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind, including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other
than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of
application(s) to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required
thereby, and (iv) such filings as are required to be made under applicable state securities laws and the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. On or after
the Effective Time, the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable
and tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such
a purchaser). On or after the Effective Time, the Shares are being issued pursuant to the Registration Statement and the issuance of
the Shares has been registered by the Company under the Act. The “Plan of Distribution” section within the Registration
Statement permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of
such Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of stock options or other
awards under any equity incentive plan of the Company, the issuance of shares of Common Stock or equity-based units to employees, directors
and consultants pursuant to any equity incentive plan of the Company and pursuant to the conversion and/or exercise of securities exercisable,
exchangeable or convertible into Common Stock (“Common Stock Equivalents”) outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in the SEC Reports, there
are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for
or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents
or capital stock of any Subsidiary. The issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares
of Common Stock or other securities to any Person. There are no outstanding securities or instruments of the Company or any Subsidiary
with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of
securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Other than any equity incentive plan
of the Company, the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization
of any stockholder, the Board or others is required for the issuance and sale of the Shares. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
(h)
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering
and sale of the Shares. Upon the Effective Time, such Registration Statement shall be effective and available for the offer and sale
of the Shares as of the date hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder,
and, except to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished
to the Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration
Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which
a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar
rule) in connection with any offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The Company meets
the transaction requirements as set forth in General Instruction I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction
I.B.6 of Form S-3 with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve
(12) months prior to this offering.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when
they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus,
when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and
the rules thereunder, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. The Company is, and will be until October 25, 2025, an Ineligible Issuer (as defined in Rule 405).
(k)
Free Writing Prospectus. Pursuant to Rule 164, the Company is not eligible to use Issuer Free Writing Prospectuses until
October 25, 2025. Each Issuer Free Writing Prospectus does not include any information the substance of which conflicts with the information
contained in the Registration Statement, including any Incorporated Documents and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified; and each Issuer Free Writing Prospectus does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by the Manager specifically for use therein. Any Issuer
Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission
in accordance with the requirements of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in
all material respects with the requirements of the Act and the rules thereunder. The Company will not, without the prior consent of the
Manager, prepare, use or refer to, any Issuer Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A
of the Act in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends
to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by
the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the period since October 26,
2022 (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus
and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as
applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the
notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results
of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to any equity incentive plans of the Company, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely
affects or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens
for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and,
the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company
and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are
in compliance.
(v)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the
date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any
Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
benefits to employees, directors and consultants, including stock option agreements and equity-based award agreements under any equity
plan of the Company.
(y)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
“Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or
will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(bb)
[RESERVED]
(cc)
Listing and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as
contemplated by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant
to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification
that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof,
received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not
in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock
is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the
Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection
with such electronic transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or
other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws
of its state of incorporation that is or could become applicable to the Shares.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value
of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file
for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on
such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2023.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj)
FDA. As to each product, if applicable, subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product, if applicable, is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure
to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties,
business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale,
license or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed
any concern as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk)
Equity Incentive Plan. Each stock option granted by the Company under any equity incentive plan of the Company was granted
(i) in accordance with the terms of such equity incentive plan and (ii) with an exercise price or purchase price, at least equal to the
fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock
option granted under any equity incentive plan of the Company has been backdated. The Company has not knowingly granted, and there is
no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant
of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or
their financial results or prospects.
(ll)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has
no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to its
IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the
Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the past three
years were, in compliance with all applicable data privacy and security laws and regulations, including, as applicable, the European
Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”);
(ii) the Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis
of Personal Data (the “Policies”); (iii) the Company provides accurate notice of its applicable Policies to its
customers, employees, third party vendors and representatives as required by Privacy Laws; and (iv) applicable Policies provide
accurate and sufficient notice of the Company’s then-current privacy practices relating to its subject matter, and do not contain
any material omissions of the Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data”
means (i) a natural person’s name, street address, telephone number, email address, photograph, social security number, bank
information, or customer or account number; (ii) any information which would qualify as “personally identifying information”
under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece
of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of
any identifiable data related to an identified person’s health or sexual orientation. (i) None of such disclosures made or
contained in any of the Policies have been inaccurate, misleading, or deceptive in violation of any Privacy Laws and (ii) the execution,
delivery and performance of this Agreement will not result in a breach of any Privacy Laws or Policies. Neither the Company nor
the Subsidiaries, (i) has, to the knowledge of the Company, received written notice of any actual or potential liability of the
Company or the Subsidiaries under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is
currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory
request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement by or with any court or arbitrator
or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
(nn)
Office of Foreign Assets Control. Neither the Company nor any of its Subsidiaries,
nor to the knowledge of the Company, any of the directors, officers or employees of the Company or its Subsidiaries, is an individual
or entity that is, or is owned or controlled by an individual or entity that is: (i) the subject of any sanctions administered or
enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European
Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor (ii) located,
organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will,
directly or indirectly, use the proceeds of the transactions contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other individual or entity: (i) to fund or facilitate any activities or business
of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject
of Sanctions or (ii) in any other manner that will result in a violation of Sanctions by any individual or entity (including any
individual or entity participating in the transactions contemplated hereby, whether as underwriter, advisor, investor or otherwise).
For the past five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in,
any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(oo)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S.
real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company
shall so certify upon the Manager’s request.
(pp)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates
is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors
of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates
owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five
percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(qq)
Money Laundering. The operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company or any Subsidiary, threatened.
(rr)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery
of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects. The Company will cause any supplement to the Prospectus filed after the Effective Time to be properly
completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of such
timely filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus
(whether physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the
offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective (other than any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission
or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order
or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including,
if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or
Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to
correct such statement or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager
may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered
under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Prospectus, the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare
and file with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented
Prospectus to the Manager in such quantities as the Manager may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel
for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the
Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager
or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it
has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously
delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to any date on which the Company
or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any
other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this
obligation, provided that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to
any employee equity plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company
may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security
of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.
(k)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon
the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting
more than 30 Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than
by means of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files
its quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial
information (other than information that is furnished and not filed), if the Manager reasonably determines that the information in such
Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement
(such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained
in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the Representation
Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate.
(l)
Bring Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived
by the Manager, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion
of each of counsel to the Company (“Company Counsel”) and intellectual property counsel to the Company (“Company
IP Counsel”), each addressed to the Manager and dated and delivered within five (5) Trading Days of such Representation Date, in
form and substance reasonably satisfactory to the Manager, including a negative assurance representation. The requirement to furnish or
cause to be furnished each opinion (but not with respect to a negative assurance representation) under this Section 4(l) shall be waived
for any Representation Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus
is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager
reasonably requests such deliverable required this Section 4(l) in connection with a Representation Date, upon which request such deliverable
shall be deliverable hereunder.
(m)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived
by the Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent
accountants satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company
forthwith to furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form
and substance reasonably satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this
Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters
and certificate.
(n)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory
to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable
due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated
by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers
and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager
for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $5,000 per calendar quarter, plus
any incidental expense incurred by the Manager in connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own
account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a
Terms Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the
result of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement, as modified by the Disclosure Schedule as the same may
be updated from time to time, are true and correct as of the date of such acceptance or of such Terms Agreement as though made at and
as of such date, and an undertaking that such representations and warranties will be true and correct as of the Settlement Date for the
Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case may be, as though made at and as
of such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented relating to such Shares).
(s)
Reservation of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide
for the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock
held in treasury, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement.
The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain
such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the
Shares as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of
Common Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly
as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference
therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall
be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.
5.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under
this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation,
printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto),
the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Shares (if the Shares are not being issued in electronic form), including any stamp or transfer
taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and the listing of the Shares
on the Trading Market; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky
laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Manager relating to such registration
and qualification); (vii) the reasonable transportation and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants
and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the filing fee under FINRA Rule 5110;
(x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $55,000 (excluding any periodic due diligence fees
provided for under Section 4(n)), which shall be paid upon the Execution Time; and (xi) all other costs and expenses incident to
the performance by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the
Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a)
Effectiveness of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been
declared effective by the Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission
shall have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each
Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and
under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed
with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b)
Delivery of Opinions. The Company shall have caused each of the Company Counsel and the Company
IP Counsel to furnish to the Manager its opinion and negative assurance statement, dated as of such date and addressed to the Manager
in form and substance acceptable to the Manager.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same
effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and
no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in
form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a
review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement
and the Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement,
the Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease
in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business
or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive
of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the
Prospectus (exclusive of any amendment or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the
time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Manager such further information, certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by electronic mail.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel
for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in
this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in
the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or result from or relate to any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b)
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information
relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee
applicable to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise
have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering
of the Shares; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by
the Manager shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement.
Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the
Manager on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) Business Days’ prior
written notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to
any pending sale, through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager,
shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10,
12, the second sentence of 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13,
14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall remain
in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to
such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company
prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution
of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended by the
Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum
prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States
of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole
judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered,
or e-mailed to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which
it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager
in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective
of whether the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will
not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the
Company and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter
agreement, dated January 25, 2024, by and between the Company and the Manager shall continue to be effective and the terms
therein shall continue to survive and be enforceable by the Manager in accordance with its terms, provided that, in the event of a
conflict between the terms of the letter agreement and this Agreement, the terms of this Agreement shall prevail.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
15.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the
Manager: (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively
in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the
exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District
of New York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service
of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York,
or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed
by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any
such suit, action or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall
be deemed in every respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall
commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby.
17.
Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same agreement, which may be delivered in .pdf file via e-mail.
***************************
18.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect
the construction hereof.
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
Very truly yours,
Cardio
Diagnostics Holdings, Inc.
By: /s/ Meeshanthini V. Dogan
Name: Meeshanthini V. Dogan
Title: Chief Executive Officer
and Co-Founder
Address for Notice:
311 W. Superior Street, Suite
444
Chicago, IL 60654
Attention: Meeshanthini V. Dogan
Email: mdogan@cardiodiagnosticsinc.com
The foregoing Agreement is hereby
confirmed and accepted as of the date first written above.
CRAIG-HALLUM CAPITAL GROUP
LLC
By: /s/ Rick Hartfiel
Name: Rick Hartfiel
Title: Director of
Investment Banking
|
Address for Notice:
222 South
9th Street, Suite 350
Minneapolis,
MN 55402
Attention:
Rick Hartfiel, Director of Investment Banking
E-mail: rick.hartfiel@craig-hallum.com
Form of Terms Agreement
ANNEX I
Cardio
Diagnostics Holdings, Inc.
TERMS AGREEMENT
Dear
Sirs:
Cardio
Diagnostics Holdings, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the
At The Market Offering Agreement, dated January 26, 2024 (the “At The Market Offering Agreement”), between
the Company and Craig-Hallum Capital Group LLC (“Manager”), to issue and sell to Manager the securities specified
in the Schedule I hereto (the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as
therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation
to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation
to the Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
(a)
If the foregoing is in accordance with your understanding, please sign and return to
us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the At The Market Offering Agreement incorporated
herein by reference, shall constitute a binding agreement between the Manager and the Company.
| |
|
|
|
|
Cardio
Diagnostics Holdings, Inc.
|
|
|
By: /s/ Meeshanthini V. Dogan
Name: Meeshanthini V. Dogan
Title: Chief
Executive Officer
|
ACCEPTED as of the date first
written above.
| |
|
|
|
|
CRAIG-HALLUM CAPITAL
GROUP LLC
|
|
|
By:__________________________________________
Name:
Title:
Exhibit 5.1
| |
P. Rupert Russell
rrussell@sflaw.com
(415) 773-7243
|
January 26, 2024
Cardio Diagnostics Holdings, Inc.
311 West Superior Street, Suite 444
Chicago, IL 60654
| Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Cardio Diagnostics
Holdings, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement
on Form S-3 (the “Registration Statement”), including the Prospectus constituting a part thereof (the “Prospectus”),
filed on the date hereof with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933,
as amended (the “Securities Act”), relating to the potential issuance and sale by the Company from time to time of
up to $17.0 million aggregate amount of any of the following: (i) shares of the Company’s common stock, $0.00001 par value (the
“Common Stock”); (ii) shares of the Company’s preferred stock, $0.00001 par value (the “Preferred Stock”);
(iii) units consisting of one or more shares of Common Stock, shares of Preferred Stock, Warrants, Rights, or any combination of the foregoing
(the “Units”); (iv) subscription rights to purchase Common Stock, Preferred Stock or other securities of the Company
(or any combination thereof) (the “Rights”); and (v) warrants to purchase Common Stock, Preferred Stock, Units or other
securities of the Company (the “Warrants”). The Common Stock, the Preferred Stock, the Units, the Rights and the Warrants
are referred to herein collectively as the “Securities.” The Prospectus provides that it will be supplemented in the
future by one or more supplements to such Prospectus and/or other offering material in connection with the Company’s specific proposed
offering of any of such Securities (each, a “Prospectus Supplement”).
In so acting, we have examined originals or
copies (certified or otherwise identified to our satisfaction) of (i) the Third Amended and Restated Certificate of Incorporation of the
Company, as in effect on the date hereof; (ii) the Bylaws of the Company as in effect on the date hereof; (iii) the Registration Statement;
(iv) the Prospectus; and (v) such corporate records, agreements, documents and other instruments, and such certificates or comparable
documents of public officials and of officers and representatives of the Company, and have made inquiries of such officers and representatives,
as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In our examination of the above-referenced documents,
we have assumed all electronic and manual signatures on all documents reviewed by us (including, without limitation, signatures delivered
via electronic signature systems such as DocuSign, SecureDocs, or comparable electronic signature methods or systems) are genuine signatures
of the purported signatories. We have assumed the authenticity of all documents, certificates and instruments submitted to us as originals
and the conformity with the originals of all documents submitted to us as copies. We have also assumed that (i) the Registration Statement,
and any amendments thereto (including post-effective amendments), will have become effective and will comply with all applicable laws;
(ii) a Prospectus Supplement, if required, will have been prepared and filed with the SEC describing the Securities offered thereby; (iii)
all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the
Registration Statement and any applicable Prospectus Supplement; (iv) a definitive purchase, underwriting, placement, dealer or similar
agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and
the other parties thereto; (v) any Securities issuable upon conversion, exchange or exercise of any Security being offered will have been
duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise; and (vi) with respect
to shares of Common Stock or Preferred Stock offered, there will be sufficient shares of Common Stock or Preferred Stock authorized under
the Company’s Third Amended and Restated Articles of Incorporation, and not otherwise reserved for issuance.
Based upon and subject to the foregoing and
the other matters set forth herein, and having regard for such legal considerations as we deem relevant, we are of the opinion that:
1. All
requisite actions necessary to make the shares of Common Stock subsequently offered by the Company under the Registration Statement validly
issued, fully paid and non-assessable shall have been taken when:
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, has adopted appropriate resolutions
to authorize the issuance and sale of the Common Stock; and
b. Such
shares of Common Stock have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with,
the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings
and documents referred to above.
2. All
requisite actions necessary to make the shares of Preferred Stock subsequently offered by the Company under the Registration Statement
validly issued, fully paid and non-assessable shall have been taken when:
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, has adopted appropriate resolutions
to establish the voting powers, designations, preferences and relative, participating, optional or other special rights, if any, or the
qualifications, limitations or restrictions, if any, and other terms of such shares as set forth in or contemplated by the Registration
Statement, the exhibits thereto and any Prospectus Supplement relating to such Preferred Stock, and to authorize the issuance and sale
of such shares of Preferred Stock;
b. A
Certificate of Designations or other amendment to the Company’s Third Amended and Restated Certificate of Incorporation with respect
to any such established voting powers, designations, preferences and relative, participating, optional or other special rights, if any,
or the qualifications, limitations or restrictions, if any, and other terms of such shares have been filed with the State of Delaware
in the form and manner required by law; and
c. Such
shares of Preferred Stock have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity
with, the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings
and documents referred to above.
3. All
requisite actions necessary to make the Warrants subsequently offered by the Company under the Registration Statement valid, legal and
binding obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance,
moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general principles of
equity, regardless of whether applied in a proceeding in equity or at law, shall have been taken when:
a. The
Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by the
Board of Directors, has taken action to approve and establish the terms and form of the Warrants and the documents, including any warrant
agreements, evidencing and used in connection with the issuance and sale of the Warrants, and to authorize the issuance and sale of such
Warrants;
b. The
terms of such Warrants and of their issuance and sale by the Company have been established so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements
or restrictions imposed by any court or governmental entity having jurisdiction over the Company;
c. Any
such warrant agreements have been duly executed and delivered;
d. Such
Warrants have been duly executed and delivered in accordance with the terms and provisions of any applicable warrant agreement; and
e. Such
Warrants have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
4. All
requisite actions necessary to make the Rights subsequently offered by the Company under the Registration Statement valid, legal and binding
obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium
and other similar laws of general application affecting the rights and remedies of creditors, and (ii) general principles of equity, regardless
of whether applied in a proceeding in equity or at law, shall have been taken when:
a. The
Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by the
Board of Directors, has taken action to establish the terms of such Rights and to authorize the issuance and sale of such Rights;
b. The
terms of such Rights and of their issuance and sale have been established so as not to violate any applicable law or result in a default
or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed by
any court or governmental entity having jurisdiction over the Company; and
c. Such
Rights have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
5. All
requisite actions necessary to make the Units subsequently offered by the Company under the Registration Statement valid, legal and binding
obligations of the Company, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium
and other similar laws of general application affecting the rights and remedies of creditors, and (ii) general principles of equity, regardless
of whether applied in a proceeding in equity or at law, shall have been taken when:
a. The
Company’s Board of Directors, or a committee thereof or one or more officers of the Company, in each case duly authorized by the
Board of Directors, has taken action to establish the terms and component Securities of such Units and to authorize the issuance and sale
of such Units;
b. The
terms of such Units and of their issuance and sale have been established so as not to violate any applicable law or result in a default
or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed by
any court or governmental entity having jurisdiction over the Company;
c. The
underlying Securities comprising the Units satisfy all conditions described in the applicable numbered paragraphs of this opinion letter
with respect to our opinion regarding such Securities underlying the Units; and
d. The
Units have been issued and sold by the Company for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
The opinion expressed herein is limited to the
General Corporation Law of the State of Delaware (including reported judicial decisions interpreting the General Corporation Law of the
State of Delaware), and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
This opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion if any applicable law changes after
the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is
limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
This opinion is for your benefit in connection
with the Registration Statement and the Prospectus and may be relied upon by you and by persons entitled to rely upon it pursuant to the
applicable provisions of the Securities Act. We consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act, as Exhibit 5.1 to the Registration Statement, and to the references to our firm therein. In
giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within
the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Shartsis Friese LLP
Exhibit 5.2
| |
P. Rupert Russell
rrussell@sflaw.com
(415) 773-7243
|
January 26, 2024
Cardio Diagnostics Holdings, Inc.
311 West Superior Street, Suite 444
Chicago, IL 60654
Ladies and Gentlemen:
We have acted as counsel to Cardio
Diagnostics Holdings, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
issuance and sale, through or to Craig-Hallum Capital Group LLC (the “Sales Agent”), of up to $17.0 million of
shares of the Company’s common stock, par value $0.00001 per share (the “Shares”), from time to time and at
various prices in an “at-the-market” offering pursuant to (i) that certain at the market offering agreement, dated
January 26, 2024 (the “Sales Agreement”), by and between the Company and the Sales Agent, and (ii) the
Company’s Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the
“Commission”) on the date hereof (the “Registration Statement”), the base prospectus filed as
part of the Registration Statement (the “Base Prospectus”), and the prospectus supplement contained in the
Registration Statement (together with the Base Prospectus, the “Prospectus”). For purposes of this opinion, we
assume that the offering pursuant to the Registration Statement, the Prospectus and the Sales Agreement will be broadly marketed and
sold to a substantial number of investors.
In so acting, we have examined originals or
copies (certified or otherwise identified to our satisfaction) of (i) the Sales Agreement; (ii) the Third Amended and Restated Certificate
of Incorporation of the Company, as in effect on the date hereof; (iii) the Bylaws of the Company as in effect on the date hereof; (iv)
the Registration Statement; (v) the Prospectus; and (vi) such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and representatives of the Company, and have made inquiries of
such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth. In our examination
of the above-referenced documents, we have assumed all electronic and manual signatures on all documents reviewed by us (including, without
limitation, signatures delivered via electronic signature systems such as DocuSign, SecureDocs, or comparable electronic signature methods
or systems) are genuine signatures of the purported signatories. We have assumed the authenticity of all documents, certificates and instruments
submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
Based upon, subject to and limited by the foregoing,
we are of the opinion that, upon the issuance of the Shares pursuant to the terms of the Sales Agreement and the receipt by the Company
of the consideration for the Shares pursuant to the terms of the Sales Agreement, the Shares will be validly issued, fully paid, and nonassessable.
The opinion expressed herein is limited to the
General Corporation Law of the State of Delaware (including reported judicial decisions interpreting the General Corporation Law of the
State of Delaware), and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
This opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion if any applicable law changes after
the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is
limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
This opinion is for your benefit in connection
with the Registration Statement and the Prospectus and may be relied upon by you and by persons entitled to rely upon it pursuant to the
applicable provisions of the Securities Act of 1933, as amended (the “Securities Act”). We consent to the filing of this opinion
in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, as Exhibit 5.2 to the Registration Statement,
and to the references to our firm therein. In giving our consent, we do not admit that we are “experts” within the meaning
of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Shartsis Friese LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 of Cardio Diagnostics Holdings, Inc., of our report dated March 31, 2023, relating to the consolidated financial
statements of Cardio Diagnostics Holdings, Inc. as of December 31, 2022 and 2021 and for the years ended December 31, 2022 and 2021. We
also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this Registration
Statement.
| /s/ Prager Metis CPA’s LLC |
|
| |
|
| Hackensack, New Jersey |
|
| January 26, 2024 |
|
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Cardio Diagnostics Holdings, Inc.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security
Type(1) |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered(2) |
Proposed
Maximum
Offering
Price
Per Share(3) |
Maximum
Aggregate
Offering
Price(2) |
Fee Rate |
Amount
of
Registration
Fee |
| Equity |
Common Stock, par value $0.00001 per share |
— |
— |
— |
— |
— |
— |
| Equity |
Preferred Stock, par value $0.0001 per share |
— |
— |
— |
— |
— |
— |
| Other |
Warrants |
— |
— |
— |
— |
— |
— |
| Other |
Units(4) |
— |
— |
— |
— |
— |
— |
| Other |
Subscription Rights |
— |
— |
— |
— |
— |
— |
| Unallocated (Universal) Shelf |
— |
457(o) |
— |
— |
$17,000,000(2) |
$0.00014760 |
$2,509.20 |
| Total Offering Amount |
$17,000,000 |
|
|
$2,509.20 |
| Total Fees Previously Paid |
|
|
|
$0 |
| Total Fee Offsets |
|
|
|
$0 |
| Net Fee Due |
|
|
|
$2,509.20 |
| (1) |
Represents securities that may be offered and sold from time to time in one or more offerings by Cardio Diagnostics Holdings, Inc. |
| |
|
| (2) |
There are being registered under this registration statement (i) such indeterminate number of shares of common stock and preferred stock; (ii) such indeterminate number of warrants to purchase common stock, preferred stock or units; (iii) such indeterminate number of subscription rights; and (iv) such indeterminate number of units as may be sold by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $17,000,000. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock, rights, and warrants as may be issued upon conversion of or exchange for preferred stock that provide for conversion or exchange; upon exercise of warrants; pursuant to the terms of any units; or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends, or similar events. |
| |
|
| (3) |
The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction I.B.6. of Form S-3 under the Securities Act. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in units. |
| (4) |
Each unit will represent an interest in two or more securities, which may or may not be separable from one another. |
| |
|
Table 2: Fee Offset Claims and Sources
Not applicable
Table 3: Combined Prospectuses
Not applicable
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