As filed with
the Securities and Exchange Commission on April 12, 2019
Registration
No. 333-230516
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOTUS GI HOLDINGS, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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81-4042793
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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Motus GI Holdings, Inc.
1301 East Broward Boulevard, 3rd Floor
Ft. Lauderdale, FL, 33301
Telephone: (954) 541-8000
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Timothy P. Moran
Chief Executive Officer
Motus GI Holdings, Inc.
1301 East Broward Boulevard, 3rd Floor
Ft. Lauderdale, FL 33301
Telephone: (954) 541-8000
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies of all communications, including
communications sent to the agent for service, to:
Steven M. Skolnick, Esq.
Michael J. Lerner, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Tel: (212) 262-6700
Approximate date of commencement of
proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box:
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
¨
Large accelerated filer:
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¨
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Accelerated filer:
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¨
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Non-accelerated filer:
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x
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Smaller reporting company:
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x
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Emerging growth company:
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x
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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 Securities Act.
x
CALCULATION OF REGISTRATION FEE
Title
of each class of
securities to be registered
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Amount
to
be
registered
(1)
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Proposed
maximum
offering
price
per unit
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Proposed
maximum
aggregate
offering
price
(3)
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Amount
of
registration
fee
(3)
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Common Stock, par value $0.0001 per share
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(2)
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(2)
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(2)
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(2)
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Preferred Stock, par value $0.0001 per share
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(2)
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(2)
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(2)
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(2)
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Warrants
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(2)
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(2)
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(2)
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(2)
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Debt Securities
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(2)
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(2)
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(2)
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(2)
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Subscription Rights
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(2)
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(2)
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(2)
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(2)
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Units
(4)
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(2)
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(2)
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(2)
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(2)
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TOTAL:
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$
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75,000,000
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$
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9,090
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(5)
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(1)
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An indeterminate amount of the securities of each identified class is being registered as
may from time to time be offered hereunder at indeterminate prices, along with an indeterminate number of securities that may
be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. These securities may
also be sold separately, together or as units with the other securities registered hereunder. The securities registered
hereunder will have an aggregate offering price that does not exceed $75,000,000 or the equivalent in any other currency,
currency unit or units, or composite currency or currencies.
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(2)
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Not required to be included in accordance with General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”).
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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(4)
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Each unit will consist of one or more common shares, preferred shares, warrants, debt securities, subscription rights or any combination of such securities, which may or may not be separable from one another.
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The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission acting pursuant
to said Section 8(a), may determine.
The information in this prospectus is not
complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange
Commission. These securities may not be sold until the registration statement is effective. This prospectus is not an offer to
sell these securities and does not solicit an offer to buy these securities in any state or other jurisdiction where the offer
or sale is not permitted.
Subject to completion,
dated April 12, 2019
PROSPECTUS
Motus GI Holdings, Inc.
$75,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Subscription Rights
Units
We may offer, issue and sell from time to
time together or separately, in one or more offerings, any combination of (i) our common stock, (ii) our preferred stock, which
we may issue in one or more series, (iii) warrants, (iv) senior or subordinated debt securities, (v) subscription rights and (vi)
units. The debt securities may consist of debentures, notes, or other types of debt. The debt securities, preferred stock, warrants
and subscription rights may be convertible into, or exercisable or exchangeable for, common or preferred stock or other securities
of ours. The units may consist of any combination of the securities listed above.
The aggregate public offering price
of the securities that we are offering will not exceed $75,000,000. We will offer the securities in an amount and on terms that
market conditions will determine at the time of the offering. Our common stock is listed on the Nasdaq Capital Market under the
symbol “MOTS.” The last reported sale price for our common stock on April 5, 2019 as quoted on the Nasdaq Capital
Market was $3.45 per share. You are urged to obtain current market quotations of our common stock. We have no preferred stock,
warrants, debt securities, subscription rights or units listed on any market. Each prospectus supplement will indicate if the
securities offered thereby will be listed on any securities exchange.
Investing in our securities involves
risk. You should carefully consider the risks that we refer you to under the section captioned “
Risk Factors
”
in this prospectus on page 3 before buying our securities.
Should we offer any of the securities described
in this prospectus, we will provide you with the specific terms of the particular securities being offered in supplements to this
prospectus. You should read this prospectus and any supplement, together with additional information described under the headings
“Additional Information” and “Incorporation of Certain Information by Reference” carefully before you invest.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may sell these securities directly to
our stockholders or to other purchasers or through agents on our behalf or through underwriters or dealers as designated from time
to time. If any agents or underwriters are involved in the sale of any of these securities, the applicable prospectus supplement
will provide the names of the agents or underwriters and any applicable fees, commissions or discounts.
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 , 2019
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration
process. Under this shelf registration process, we may from time to time offer and sell, in one or more offerings, any or all
of the securities described in this prospectus, separately or together, up to an aggregate offering price of $75,000,000. This
prospectus provides you with a general description of our securities being offered. When we issue the securities being offered
by this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described under the heading “Additional Information”
and “Incorporation of Certain Information by Reference.”
You may only rely on the information contained
in this prospectus and the accompanying prospectus supplement or in any free writing prospectus prepared by or on behalf of us
or to which we have referred you to. We have not authorized anyone to provide you with different information. This prospectus and
any prospectus supplement do not constitute an offer to sell or a solicitation of an offer to buy any securities other than the
securities offered by this prospectus and the prospectus supplement. This prospectus and any prospectus supplement do not constitute
an offer to sell or a solicitation of an offer to buy any securities in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in our affairs since the date of this prospectus or such prospectus supplement
or that the information contained by reference to this prospectus or any prospectus supplement is correct as of any time after
its date.
Motus GI Holdings, Inc. is referred to
herein as “Motus,” “the Company,” “we,” “us,” and “our,” unless the
context indicates otherwise.
PROSPECTUS
SUMMARY
The following summary highlights some information
from this prospectus. It is not complete and does not contain all of the information that you should consider before making an
investment decision. You should read this entire prospectus, including the “Risk Factors” section on page 3
and the disclosures to which that section refers you, the financial statements and related notes and the other more detailed information
appearing elsewhere or incorporated by reference into this prospectus before investing in any of the securities described in this
prospectus.
About Us
We have developed the Pure-Vu System (the
“Pure-Vu System”), a medical device that has received 510(k) clearance from the U.S. Food and Drug Administration
(the “FDA”) and CE mark approval in the European Economic Area. The Pure-Vu System is indicated to help facilitate
the cleaning of a poorly prepared colon during the colonoscopy procedure. The device integrates with standard and slim colonoscopes
to enable safe and rapid cleansing during the procedure while preserving established procedural workflow and techniques by irrigating
the colon and evacuating the irrigation fluid (water), feces and other bodily fluids and matter. Challenges with bowel preparation
for inpatient colonoscopy represent a significant area of unmet need that directly affects clinical outcomes and increases the
cost of care for a hospital in a market segment where most of the reimbursement is under a bundle payment based on a Diagnostic
Related Group (a “DRG”), comprising of approximately 1.5 million annual inpatient colonoscopy procedures in the U.S.
and approximately 3.8 million annual inpatient colonoscopy procedures worldwide. The Pure-Vu System does not currently have a
unique reimbursement code with any private or governmental third-party payors in any country. To date, as part of our limited
pilot launch in the U.S. market, we have focused on collecting additional clinical and health economic data, as exemplified by
the recently initiated Reliable Endoscopic Diagnosis Utilizing Cleansing Enhancement Study (the “REDUCE Study”), along
with garnering valuable experience in key hospitals on the use of the Pure-Vu System to support a planned full launch of the Pure-Vu
System in the United States inpatient colonoscopy market in 2019. We do not expect to generate significant revenue from product
sales unless and until we expand our commercialization efforts.
Implications of Being an Emerging Growth Company
We are an “emerging growth company,”
as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), and, for as long as we continue to
be an “emerging growth company,” we may choose to take advantage of exemptions from various reporting requirements
applicable to other public companies but not to “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. We could be an “emerging growth company” for up
to five years from the date of our initial public offering in February 2018, or until the earliest of (i) the last day of the first
fiscal year in which our annual gross revenues exceed $1.07 billion, (ii) the date that we become a “large accelerated filer”
as defined in Rule 12b-2 under the Exchange Act, which would occur if the market value of our Common Stock that is held by non-affiliates
exceeds $700 million as of the last business day of our most recently completed second fiscal quarter, or (iii) the date on which
we have issued more than $1 billion in non-convertible debt during the preceding three-year period. We intend to take advantage
of these reporting exemptions described above until we are no longer an “emerging growth company.” Under the JOBS Act,
“emerging growth companies” can also delay adopting new or revised accounting standards until such time as those standards
apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting
standards and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are
not “emerging growth companies.”
Corporate Information
We are a Delaware corporation formed in
September 2016 under the name Eight-Ten Merger Corp. In November 2016, we changed our name to Motus GI Holdings, Inc. We are the
parent company of Motus GI Medical Technologies Ltd., an Israeli corporation, and Motus GI, Inc. a Delaware corporation.
Our principal executive offices are located
at 1301 East Broward Boulevard, 3rd Floor, Ft. Lauderdale, FL 33301. Our phone number is (954) 541-8000 and our web address is
www.motusgi.com. Our website and the information contained on, or that can be accessed through, our website will not be deemed
to be incorporated by reference in, and are not considered part of, this prospectus. You should not rely on our website or any
such information in making your decision whether to purchase our securities.
RISK
FACTORS
Before purchasing any of the securities
you should carefully consider the risk factors incorporated by reference in this prospectus from our most recent Annual Report
on Form 10-K and any subsequent updates described in our Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well
as the risks, uncertainties and additional information set forth in our SEC reports on Forms 10-K, 10-Q and 8-K and in the other
documents incorporated by reference in this prospectus. For a description of these reports and documents, and information about
where you can find them, see “Additional Information” and “Incorporation of Certain Information By Reference.”
Additional risks not presently known or that we presently consider to be immaterial could subsequently materially and adversely
affect our financial condition, results of operations, business and prospects.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated
by reference in this prospectus contain, and our officers and representatives may from time to time make, “forward-looking
statements,” which include information relating to future events, future financial performance, financial projections, strategies,
expectations, competitive environment and regulation. Words such as “may,” “should,” “could,”
“would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,”
“future,” “intends,” “plans,” “believes,” “estimates,” “goal,”
“seek,” “project,” “strategy,” “likely,” and similar expressions, as well as statements
in future tense, identify forward-looking statements. Forward-looking statements are neither historical facts, nor should they
be read as a guarantee of future performance or results and may not be accurate indications of when such performance or results
will be achieved. Forward-looking statements are based on information we have when those statements are made or management’s
good faith belief as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual
performance or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors
that could cause such differences include, but are not limited to:
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our limited operating history;
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our history of substantial operating losses in each year since inception and expectation that we will continue to incur substantial operating losses for the foreseeable future;
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our current and future capital requirements to support our development and commercialization efforts for the Pure-Vu System and our ability to satisfy our capital needs;
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our dependence on the Pure-Vu System, our sole product candidate, which is still in development;
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our ability to obtain approval from regulatory agents in different jurisdictions for the Pure-Vu System;
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our Pure-Vu System and the procedure to cleanse the colon in preparation for colonoscopy are not currently reimbursable through private or governmental third-party payors;
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our lack of a developed sales and marketing organization and our ability to commercialize the Pure-Vu System;
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our dependence on third-parties to manufacture the Pure-Vu System;
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our ability to maintain or protect the validity of our patents and other intellectual property;
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our ability to retain key executives and medical and science personnel;
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our ability to internally develop new inventions and intellectual property;
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interpretations of current laws and the passages of future laws;
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acceptance of our business model by investors;
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the accuracy of our estimates regarding expenses and capital requirements; and
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our ability to adequately support growth.
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The foregoing does not represent an exhaustive
list of matters that may be covered by the forward-looking statements contained herein and in the documents incorporated by reference
herein or risk factors that we are faced with that may cause our actual results to differ from those anticipate in our forward-looking
statements. Factors that may affect our results include, but are not limited to, the risks and uncertainties discussed in the “Risk
Factors” section on page 3 of this prospectus, in our Annual Report on Form 10-K or in other reports we file with the Securities
and Exchange Commission.
Moreover, new risks regularly emerge and
it is not possible for our management to predict or articulate all risks we face, nor can we assess the impact of all risks on
our business or the extent to which any risk, or combination of risks, may cause actual results to differ from those contained
in any forward-looking statements. The Private Securities Litigation Reform Act of 1995 and Section 27A of the Securities Act of
1933, as amended, do not protect any forward-looking statements that we make in connection with this offering. All forward-looking
statements included in this prospectus and in the documents incorporated by reference in this prospectus are based on information
available to us on the date of this prospectus or the date of the applicable document incorporated by reference. Except to the
extent required by applicable laws or rules, we undertake no obligation to publicly update or revise any forward-looking statement,
whether written or oral, that may be made from time to time, whether as a result of new information, future events or otherwise.
All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified
in their entirety by the cautionary statements contained above and throughout this prospectus and in the documents incorporated
by reference in this prospectus. We qualify all of our forward-looking statements by these cautionary statements.
You should rely only on the information
in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely upon it.
USE
OF PROCEEDS
Unless we inform you otherwise in the
prospectus supplement, we will use the net proceeds from the sale of the securities offered by this prospectus and the
exercise price from the exercise of any convertible securities, if any, to fund commercialization activities, research and
development activities, including clinical and regulatory development and the continued development and enhancement of our
Pure-Vu System, acquisitions or investments in businesses, products or technologies that are complementary to our own, and
for working capital and other general corporate purposes.
When particular securities are offered,
the prospectus supplement relating to that offering will set forth our intended use of the net proceeds received from the sale
of those securities we sell. Pending the application of the net proceeds for these purposes, we expect to invest the proceeds in
short-term, interest-bearing instruments or other investment-grade securities.
THE
SECURITIES WE MAY OFFER
General
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize all of the material terms and provisions of
the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities
the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable prospectus supplement,
the terms of the securities may differ from the terms we have summarized below. We may also include in the prospectus supplement
information about material United States federal income tax considerations relating to the securities, and the securities exchange,
if any, on which the securities will be listed.
We may sell from time to time, in one or
more offerings:
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common stock;
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preferred stock;
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debt securities;
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subscription rights to purchase shares of common stock, preferred stock or debt securities;
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warrants to purchase shares of common stock or preferred stock; and
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units consisting of any combination of the securities listed above.
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In this prospectus, we refer to
the common stock, preferred stock, debt securities, subscription rights, warrants and units collectively as “securities.”
The total dollar amount of all securities that we may sell will not exceed $75,000,000.
If we issue debt securities at a discount
from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities issued
under this prospectus, we will treat the initial offering price of the debt securities as the total original principal amount of
the debt securities.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists of:
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50,000,000 shares of common stock, par value $0.0001 per share; and
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10,000,000 shares of preferred stock, par value $0.0001 per share.
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As of close of business on April 5,
2019, 21,450,877 shares of our common stock were issued and outstanding and no shares of our preferred stock were issued and outstanding.
The additional shares of our authorized
capital stock available for issuance may be issued at times and under circumstances so as to have a dilutive effect on earnings
per share and on the equity ownership of the holders of our common stock. The ability of our board of directors to issue additional
shares of stock could enhance the board’s ability to negotiate on behalf of the stockholders in a takeover situation but
could also be used by the board to make a change-in-control more difficult, thereby denying stockholders the potential to sell
their shares at a premium and entrenching current management. The following description is a summary of the material provisions
of our capital stock. You should refer to our certificate of incorporation, as amended and bylaws, both of which are on file with
the SEC as exhibits to previous SEC filings, for additional information. The summary below is qualified by provisions of applicable
law.
Common Stock
Voting
. The holders of our common
stock are entitled to one vote for each share held of record on all matters on which the holders are entitled to vote (or consent
to). When a quorum is present at any meeting of stockholders, any matter before any such meeting (other than an election of a director
or directors) shall be decided by a majority of the votes properly cast on such matter, except where a different vote is required
by law, by the rules or regulations of any stock exchange applicable to us, or pursuant to any regulation applicable to us or our
securities, in which case, such different vote shall apply. A majority in voting power of the shares entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders.
Dividends
. The holders of our common
stock are entitled to receive, ratably, dividends only if, when and as declared by our board of directors out of funds legally
available therefor and after provision is made for each class of capital stock having preference over our common stock.
Liquidation Rights
. In the event
of our liquidation, dissolution or winding-up, the holders of our common stock are entitled to share, ratably, in all assets remaining
available for distribution after payment of all liabilities and after provision is made for each class of capital stock having
preference over our common stock.
Conversion Right
. The holders of
our common stock have no conversion rights.
Preemptive and Similar Rights
. The
holders of our common stock have no preemptive or similar rights.
Redemption/Put Rights
. There are
no redemption or sinking fund provisions applicable to our common stock. All of the outstanding shares of our common stock are
fully-paid and non-assessable.
Transfer Restrictions
. Shares of
our common stock are subject to transfer restrictions. Holders of our common stock may not transfer their securities unless (a)
a registration statement is in effect under the Securities Act covering the proposed transfer and such transfer is made in accordance
with such registration statement or (b) the securities are transferred in a transaction exempt from the registration requirements
of the Securities Act and any related requirements imposed by applicable state securities laws. In the case of any transfer permitted
under clause (b), the holder must notify us in writing of the proposed transfer and furnish us with an opinion of counsel, reasonably
satisfactory to us, that the transfer will not require registration under the Securities Act or any applicable state securities
laws. Each certificate representing a security contains a legend referring to this restriction on transfer and any legends required
by state securities laws.
Transfer Agent and Registrar
Continental Stock Transfer and Trust, located
at 1 State Street 30th Floor, New York, NY 10004, is the transfer agent and registrar for our common stock.
Preferred Stock
We are authorized to issue up to 10,000,000
shares of “blank check” preferred stock, par value $0.0001 per share, with such designations, rights, and preferences
as may be determined from time to time by our board of directors. Accordingly, our board of directors is empowered, without stockholder
approval, to issue preferred stock with dividend, liquidation, conversion, voting, or other rights that could adversely affect
the voting power or other rights of the holders of our common stock. The issuance of preferred stock could have the effect of restricting
dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock,
or delaying or preventing a change in control of our company
If we offer a specific series of preferred
stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement for such offering and
will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the extent required, this description
will include:
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the title and stated value;
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the number of shares offered, the liquidation preference per share and the purchase price;
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the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption, if applicable;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period;
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voting rights, if any, of the preferred stock;
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a discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and
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any material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up our Company.
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Transfer Agent and Registrar for Preferred Stock
The transfer agent and registrar for any
series or class of preferred stock will be set forth in each applicable prospectus supplement.
Anti-takeover Effects of Delaware Law and our Certificate
of Incorporation, as amended
Our certificate of incorporation, as amended,
and bylaws contain provisions that could have the effect of discouraging potential acquisition proposals or tender offers or delaying
or preventing a change of control. These provisions are as follows:
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they provide that special meetings of stockholders may be called by the board of directors or at the request in writing by stockholders of record owning at least twenty (20%) percent of the issued and outstanding voting shares of our common stock;
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they do not include a provision for cumulative voting in the election of directors. Under cumulative voting, a minority stockholder holding a sufficient number of shares may be able to ensure the election of one or more directors. The absence of cumulative voting may have the effect of limiting the ability of minority stockholders to effect changes in our board of directors; and
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they allow us to issue, without stockholder approval, up to 10,000,000 shares of preferred stock that could adversely affect the rights and powers of the holders of our common stock.
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We are subject to the provisions of Section
203 of the General Corporation Law of the State of Delaware, an anti-takeover law. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for
a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business
combination is approved in the following prescribed manner:
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prior to the time of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least eighty-five percent (85%) of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding; (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; and
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on or subsequent to the time of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding voting stock which is not owned by the interested stockholder.
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Generally, for purposes of Section 203,
a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit
to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates,
owns or, within three (3) years prior to the determination of interested stockholder status, owned fifteen percent (15%) or more
of a corporation’s outstanding voting securities.
Choice of Forum
Our certificate of incorporation, as amended,
provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary
duty; any action asserting a claim against us, or any of our officers or Directors, arising pursuant to the Delaware General Corporation
Law, our certificate of incorporation, as amended, or our bylaws; or any action asserting a claim against us that is governed by
the internal affairs doctrine. This exclusive forum provision may limit the ability of our stockholders to bring a claim in a judicial
forum that such stockholders find favorable for the disputes listed above, which may discourage such lawsuits against us, or any
of our officers or directors.
Potential Effects of Authorized but Unissued Stock
We have shares of common stock and preferred
stock available for future issuance without stockholder approval. We may utilize these additional shares for a variety of corporate
purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions or payment as a dividend
on the capital stock.
The existence of unissued and unreserved
common stock and preferred stock may enable our board of directors to issue shares to persons friendly to current management or
to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to obtain control of us
by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management. In addition,
the board of directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred
stock, all to the fullest extent permissible under the DGCL and subject to any limitations set forth in our certificate of incorporation,
as amended. The purpose of authorizing the board of directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance
of preferred stock, while providing desirable flexibility in connection with possible financings, acquisitions and other corporate
purposes, could have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from
acquiring, a majority of our outstanding voting stock.
DESCRIPTION
OF STOCK WARRANTS
We summarize below some of the provisions
that will apply to the warrants unless the applicable prospectus supplement provides otherwise. This summary may not contain all
information that is important to you. The complete terms of the warrants will be contained in the applicable warrant certificate
and warrant agreement. These documents have been or will be included or incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read the warrant certificate and the warrant agreement. You should also
read the prospectus supplement, which will contain additional information and which may update or change some of the information
below.
General
We may issue warrants to purchase our debt
or equity securities or securities of third parties or other rights, including rights to receive payment in cash or securities
based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of
the foregoing. Warrants may be issued independently or together with any other securities and may be attached to, or separate from,
such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a
bank, trust company or other financial institution, as warrant agent, or we may issue warrants directly to investors. A description
of the terms and material provisions of any warrants we may issue will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will
describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants will be payable;
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the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants;
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the price at which and the currency or currencies in which the securities or other rights purchasable upon exercise of such warrants may be purchased;
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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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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
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provision for changes to or adjustments in the exercise price of such warrants, if any;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material United States Federal income tax or foreign income tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
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Transfer Agent and Registrar
The transfer agent and registrar, if any,
for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general
terms and provisions of debt securities that we may offer. The debt securities may be issued pursuant to, in the case of senior
debt securities, a senior indenture, and in the case of subordinated debt securities, a subordinated indenture, in each case in
the forms filed as exhibits to this registration statement, which we refer to as the “indentures.” The indentures will
be entered into between us and a trustee to be named prior to the issuance of any debt securities, which we refer to as the “trustee.”
The indentures will not limit the amount of debt securities that can be issued thereunder and will provide that the debt securities
may be issued from time to time in one or more series pursuant to the terms of one or more securities resolutions or supplemental
indentures creating such series.
We have summarized below the material provisions
of the indentures and the debt securities or indicated which material provisions will be described in the related prospectus supplement
for any offering of debt securities. These descriptions are only summaries, and you should refer to the relevant indenture for
the particular offering of debt securities itself which will describe completely the terms and definitions of the offered debt
securities and contain additional information about the debt securities.
Terms
When we offer to sell a particular series
of debt securities, we will describe the specific terms of the securities in a prospectus supplement. The prospectus supplement
will set forth the following terms, as applicable, of the debt securities offered thereby:
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the designation, aggregate principal amount, currency or composite currency and denominations;
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the price at which such debt securities will be issued and, if an index formula or other method is used, the method for determining amounts of principal or interest;
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the maturity date and other dates, if any, on which principal will be payable;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
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the interest rate (which may be fixed or variable), if any;
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the date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest;
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the manner of paying principal and interest;
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the place or places where principal and interest will be payable;
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the terms of any mandatory or optional redemption by us or any third party including any sinking fund;
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the terms of any conversion or exchange;
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the terms of any redemption at the option of holders or put by the holders;
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any tax indemnity provisions;
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if the debt securities provide that payments of principal or interest may be made in a currency other than that in which the debt securities are denominated, the manner for determining such payments;
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the portion of principal payable upon acceleration of a Discounted Debt Security (as defined below);
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whether and upon what terms debt securities may be defeased;
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any events of default or covenants in addition to or in lieu of those set forth in the indentures;
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provisions for electronic issuance of debt securities or for the issuance of debt securities in uncertificated form; and
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any additional provisions or other special terms not inconsistent with the provisions of the indentures, including any terms that may be required or advisable under United States or other applicable laws or regulations, or advisable in connection with the marketing of the debt securities.
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Debt securities of any series may be issued
as registered debt securities or uncertificated debt securities, in such denominations as specified in the terms of the series.
Securities may be issued under the indentures
as Discounted Debt Securities to be offered and sold at a substantial discount from the principal amount thereof. Special United
States federal income tax and other considerations applicable thereto will be described in the prospectus supplement relating to
such Discounted Debt Securities. “Discounted Debt Security” means a security where the amount of principal due upon
acceleration is less than the stated principal amount.
We are not obligated to issue all debt securities
of one series at the same time and, unless otherwise provided in the prospectus supplement, we may reopen a series, without the
consent of the holders of the debt securities of that series, for the issuance of additional debt securities of that series. Additional
debt securities of a particular series will have the same terms and conditions as outstanding debt securities of such series, except
for the date of original issuance and the offering price, and will be consolidated with, and form a single series with, such outstanding
debt securities.
Ranking
The senior debt securities will rank equally
with all of our other senior and unsubordinated debt. Our secured debt, if any, will be effectively senior to the senior debt securities
to the extent of the value of the assets securing such debt. The subordinated debt securities will be subordinate and junior in
right of payment to all of our present and future senior indebtedness to the extent and in the manner described in the prospectus
supplement and as set forth in the board resolution, officer’s certificate or supplemental indenture relating to such offering.
We have only a stockholder’s claim
on the assets of our subsidiaries. This stockholder’s claim is junior to the claims that creditors of our subsidiaries have
against our subsidiaries. Holders of our debt securities will be our creditors and not creditors of any of our subsidiaries. As
a result, all the existing and future liabilities of our subsidiaries, including any claims of their creditors, will effectively
be senior to the debt securities with respect to the assets of our subsidiaries. In addition, to the extent that we issue any secured
debt, the debt securities will be effectively subordinated to such secured debt to the extent of the value of the assets securing
such secured debt.
The debt securities will be obligations
exclusively of Motus GI Holdings, Inc. To the extent that our ability to service our debt, including the debt securities, may be
dependent upon the earnings of our subsidiaries, our ability to do so will be dependent on the ability of our subsidiaries to distribute
those earnings to us as dividends, loans or other payments.
Certain Covenants
Any covenants that may apply to a particular
series of debt securities will be described in the prospectus supplement relating thereto.
Successor Obligor
The indentures provide that, unless otherwise
specified in the securities resolution or supplemental indenture establishing a series of debt securities, we shall not consolidate
with or merge into, or transfer all or substantially all of our assets to, any person in any transaction in which we are not the
survivor, unless:
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the person is organized under the laws of the United States or a jurisdiction within the United States;
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the person assumes by supplemental indenture all of our obligations under the relevant indenture, the debt securities and any coupons;
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immediately after the transaction no Default (as defined below) exists; and
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we deliver to the trustee an officers’ certificate and opinion of counsel stating that the transaction complies with the foregoing requirements and that all conditions precedent provided for in the indenture relating to the transaction have been complied with.
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In such event, the successor will be substituted
for us, and thereafter all of our obligations under the relevant indenture, the debt securities and any coupons will terminate.
The indentures provide that these limitations
shall not apply if our board of directors makes a good faith determination that the principal purpose of the transaction is to
change our state of incorporation.
Exchange of Debt Securities
Registered debt securities may be exchanged
for an equal aggregate principal amount of registered debt securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the registered debt securities at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of such agent.
Default and Remedies
Unless the securities resolution or supplemental
indenture establishing the series otherwise provides (in which event the prospectus supplement will so state), an “Event
of Default” with respect to a series of debt securities will occur if:
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we default in any payment of interest on any debt securities of such series when the same becomes due and payable and the default continues for a period of 30 days;
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we default in the payment of all or any part of the principal and premium, if any, of any debt securities of such series when the same becomes due and payable at maturity or upon redemption, acceleration or otherwise and such default shall continue for five or more days;
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we default in the performance of any of our other agreements applicable to the series and the default continues for 30 days after the notice specified below;
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law (as defined below) that:
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is for relief against us in an involuntary case,
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appoints a Custodian (as defined below) for us or for any substantial part of our property, or
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orders the winding up or liquidation of us, and the order or decree remains unstayed and in effect for 90 consecutive days;
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we, pursuant to or within the meaning of any Bankruptcy Law:
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commence a voluntary case,
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consent to the entry of an order for relief against us in an involuntary case,
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consent to the appointment of a Custodian for us or for any substantial part of our property, or
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make a general assignment for the benefit of our creditors; or
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there occurs any other Event of Default provided for in such series.
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The term “Bankruptcy Law” means
Title 11 of the United States Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
“Default” means any event which
is, or after notice or passage of time would be, an Event of Default. A Default under subparagraph (3) above is not an Event of
Default until the trustee or the holders of at least 25% in principal amount of the series notify us of the Default and we do not
cure the Default within the time specified after receipt of the notice.
The trustee may require indemnity satisfactory
to it before it enforces the indentures or the debt securities of the series. Subject to certain limitations, holders of a majority
in principal amount of the debt securities of the series may direct the trustee in its exercise of any trust or power with respect
to such series. Except in the case of Default in payment on a series, the trustee may withhold from securityholders of such series
notice of any continuing Default if the trustee determines that withholding notice is in the interest of such securityholders.
We are required to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under
the indentures.
The indentures do not have cross-default
provisions. Thus, a default by us on any other debt, including any other series of debt securities, would not constitute an Event
of Default.
Amendments and Waivers
The indentures and the debt securities or
any coupons of the series may be amended, and any Default may be waived as follows:
Unless the securities resolution or supplemental
indenture otherwise provides (in which event the applicable prospectus supplement will so state), the debt securities and the indentures
may be amended with the consent of the holders of a majority in principal amount of the debt securities of all series affected
voting as one class. Unless the securities resolution or supplemental indenture otherwise provides (in which event the applicable
prospectus supplement will so state), a Default other than a Default in payment on a particular series may be waived with the consent
of the holders of a majority in principal amount of the debt securities of the series. However, without the consent of each securityholder
affected, no amendment or waiver may:
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change the fixed maturity of or the time for payment of interest on any debt security;
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reduce the principal, premium or interest payable with respect to any debt security;
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change the place of payment of a debt security or the currency in which the principal or interest on a debt security is payable;
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change the provisions for calculating any redemption or repurchase price with respect to any debt security;
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adversely affect any holder’s right to receive payment of principal and interest or to institute suit for the enforcement of any such payment;
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reduce the amount of debt securities whose holders must consent to an amendment or waiver;
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make any change that materially adversely affects the right to convert any debt security;
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waive any Default in payment of principal of or interest on a debt security; or
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adversely affect any holder’s rights with respect to redemption or repurchase of a debt security.
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Without the consent of any securityholder, the indentures or
the debt securities may be amended to:
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provide for assumption of our obligations to securityholders in the event of a merger or consolidation requiring such assumption;
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cure any ambiguity, omission, defect or inconsistency;
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conform the terms of the debt securities to the description thereof in the prospectus and prospectus supplement offering such debt securities;
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create a series and establish its terms;
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provide for the acceptance of appointment by a successor trustee or to facilitate the administration of the trusts by more than one trustee;
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provide for uncertificated or unregistered securities;
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make any change that does not adversely affect the rights of any securityholder;
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add to our covenants; or
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make any other change to the indentures so long as no debt securities are outstanding.
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Conversion Rights
Any securities resolution or supplemental
indenture establishing a series of debt securities may provide that the debt securities of such series will be convertible at the
option of the holders thereof into or for our common stock or other equity or debt instruments. The securities resolution or supplemental
indenture may establish, among other things, (1) the number or amount of shares of common stock or other equity or debt instruments
for which $1,000 aggregate principal amount of the debt securities of the series is convertible, as may be adjusted pursuant to
the terms of the relevant indenture and the securities resolution; and (2) provisions for adjustments to the conversion rate and
limitations upon exercise of the conversion right. The indentures provide that we will not be required to make an adjustment in
the conversion rate unless the adjustment would require a cumulative change of at least 1% in the conversion rate. However, we
will carry forward any adjustments that are less than 1% of the conversion rate and take them into account in any subsequent adjustment
of the conversion rate.
Legal Defeasance and Covenant Defeasance
Debt securities of a series may be defeased
in accordance with their terms and, unless the securities resolution or supplemental indenture establishing the terms of the series
otherwise provides, as set forth below. We at any time may terminate as to a series all of our obligations (except for certain
obligations, including obligations with respect to the defeasance trust and obligations to register the transfer or exchange of
a debt security, to replace destroyed, lost or stolen debt securities and coupons and to maintain paying agencies in respect of
the debt securities) with respect to the debt securities of the series and any related coupons and the relevant indenture, which
we refer to as legal defeasance. We at any time may terminate as to a series our obligations with respect to any restrictive covenants
which may be applicable to a particular series, which we refer to as covenant defeasance.
We may exercise our legal defeasance option
notwithstanding our prior exercise of our covenant defeasance option. If we exercise our legal defeasance option, a series may
not be accelerated because of an Event of Default. If we exercise our covenant defeasance option, a series may not be accelerated
by reference to any covenant which may be applicable to a series.
To exercise either defeasance option as
to a series, we must (1) irrevocably deposit in trust with the trustee (or another trustee) money or U.S. Government Obligations
(as defined below), deliver a certificate from a nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due on the deposited U.S. Government Obligations, without reinvestment, plus any
deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal
and interest when due on all debt securities of such series to maturity or redemption, as the case may be; and (2) comply with
certain other conditions. In particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition
of any gain or loss to holders for federal income tax purposes.
“U.S. Government Obligations”
means direct obligations of the United States or any agency or instrumentality of the United States, the payment of which is unconditionally
guaranteed by the United States, which, in either case, have the full faith and credit of the United States pledged for payment
and which are not callable at the issuer’s option, or certificates representing an ownership interest in such obligations.
Regarding the Trustee
Unless otherwise indicated in a prospectus
supplement, the trustee will also act as depository of funds, transfer agent, paying agent and conversion agent, as applicable,
with respect to the debt securities. In certain circumstances, we or the securityholders may remove the trustee as the trustee
under a given indenture. The indenture trustee may also provide additional unrelated services to us as a depository of funds, registrar,
trustee and similar services.
Governing Law
The indentures and the debt securities will
be governed by New York law, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase
our equity or debt securities. These subscription rights may be offered independently or together with any other security offered
hereby 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 purchasers
pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after
such offering.
The prospectus supplement relating to any
subscription rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering, including
some or all of the following:
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the price, if any, for the subscription rights;
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the exercise price payable for our equity or debt securities upon the exercise of the subscription rights;
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the number of subscription rights to be issued to each stockholder;
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the number and terms of our equity or debt securities which may be purchased per each subscription right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights;
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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 or an over-allotment privilege to the extent the securities are fully subscribed; and
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if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection with the offering of subscription rights.
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DESCRIPTION OF UNITS
We may issue units comprised of one or more
of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit
is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a
holder of each included security (but, to the extent convertible securities are included in the units, the holder of the units
will be deemed the holder of the convertible securities and not the holder of the underlying securities). The unit agreement under
which a unit is issued, if any, may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date. The applicable prospectus supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
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the terms of the unit agreement governing the units;
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United States federal income tax considerations relevant to the units; and
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whether the units will be issued in fully registered global form.
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This summary of certain general terms of
units and any summary description of units in the applicable prospectus supplement do not purport to be complete and are qualified
in their entirety by reference to all provisions of the applicable unit agreement and, if applicable, collateral arrangements and
depositary arrangements relating to such units. The forms of the unit agreements and other documents relating to a particular issue
of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important
to you.
FORMS OF SECURITIES
Each debt security and, to the extent applicable,
warrant, subscription right and unit, will be represented either by a certificate issued in definitive form to a particular investor
or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form
and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security,
and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you
or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global
securities name a depositary or its nominee as the owner of the debt securities or warrants represented by these global securities.
The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through
an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully
below.
Global Securities
Registered Global Securities
. We
may issue the registered debt securities and, to the extent applicable, warrants, subscription rights and units in the form of
one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable
prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive
registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms
of the depositary arrangement with respect to any securities to be represented by a registered global security will be described
in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a registered
global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry
registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities
beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities
will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on,
and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests
of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These
laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee,
is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable
indenture or warrant agreement. Except as described below, owners of beneficial interests in a registered global security will
not be entitled to have the securities represented by the registered global security registered in their names, will not receive
or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders
of the securities under the applicable indenture or warrant agreement. Accordingly, each person owning a beneficial interest in
a registered global security must rely on the procedures of the depositary for that registered global security and, if that person
is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of
a holder under the applicable indenture or warrant agreement. We understand that under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action
that a holder is entitled to give or take under the applicable indenture or warrant agreement, the depositary for the registered
global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the
participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest
payments on debt securities and any payments to holders with respect to warrants represented by a registered global security registered
in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered
owner of the registered global security. None of the Company, the trustees, the warrant agents or any other agent of the Company,
agent of the trustees or agent of the warrant will have any responsibility or liability for any aspect of the records relating
to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising
or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of
the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other
distribution of underlying securities or other property to holders on that registered global security, will immediately credit
participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security
as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a
registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If the depositary for any of these securities
represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and a successor depositary
registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive
form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form
in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant
trustee or warrant agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will
be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the
registered global security that had been held by the depositary.
PLAN
OF DISTRIBUTION
Initial Offering and Sale of Securities
Unless otherwise set forth in a prospectus
supplement accompanying this prospectus, we may sell the securities being offered hereby, from time to time, by one or more of
the following methods:
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to or through underwriting syndicates represented by managing underwriters;
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through one or more underwriters without a syndicate for them to offer and sell to the public;
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through dealers or agents; and
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to investors directly in negotiated sales or in competitively bid transactions.
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Offerings of securities covered by this
prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price, either:
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on or through the facilities of the Nasdaq Capital Market or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or
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to or through a market maker other than on the securities exchanges or quotation or trading services set forth above.
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Those at-the-market offerings, if any, will
be conducted by underwriters acting as principal or agent of the Company, who may also be third-party sellers of securities as
described above. The prospectus supplement with respect to the offered securities will set forth the terms of the offering of the
offered securities, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of the offered securities and the proceeds to us from such sale;
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any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation;
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any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers;
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any securities exchange on which such offered securities may be listed; and
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any underwriter, agent or dealer involved in the offer and sale of any series of the securities.
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The distribution of the securities may be
effected from time to time in one or more transactions:
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at fixed prices, which may be changed;
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at market prices prevailing at the time of the sale;
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at varying prices determined at the time of sale; or
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at negotiated prices.
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Each prospectus supplement will set forth
the manner and terms of an offering of securities including:
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whether that offering is being made to underwriters, through agents or directly to the public;
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the rules and procedures for any auction or bidding process, if used;
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the securities’ purchase price or initial public offering price; and
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the proceeds we anticipate from the sale of the securities, if any.
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In addition, we may enter into derivative
or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. The applicable prospectus supplement may indicate, in connection with such a transaction, that the third parties
may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third party
may use securities pledged by us or borrowed from us or others to settle such sales and may use securities received from us to
close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus
supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged
securities pursuant to this prospectus and the applicable prospectus supplement.
Sales Through Underwriters
If underwriters are used in the sale of
some or all of the securities covered by this prospectus, the underwriters will acquire the securities for their own account. The
underwriters may resell the securities, either directly to the public or to securities dealers, at various times in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be subject to certain conditions. Unless indicated otherwise
in a prospectus supplement, the underwriters will be obligated to purchase all the securities of the series offered if any of the
securities are purchased.
Any public offering price and any concessions
allowed or reallowed to dealers may be changed intermittently.
Sales Through Agents
Unless otherwise indicated in the applicable
prospectus supplement, when securities are sold through an agent, the designated agent will agree, for the period of its appointment
as agent, to use specified efforts to sell the securities for our account and will receive commissions from us as will be set forth
in the applicable prospectus supplement.
Securities bought in accordance with a redemption
or repayment under their terms also may be offered and sold, if so indicated in the applicable prospectus supplement, in connection
with a remarketing by one or more firms acting as principals for their own accounts or as agents for us. Any remarketing firm will
be identified and the terms of its agreement, if any, with us and its compensation will be described in the prospectus supplement.
Remarketing firms may be deemed to be underwriters in connection with the securities remarketed by them.
If so indicated in the applicable prospectus
supplement, we may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase securities
at a price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on
a future date specified in the prospectus supplement. These contracts will be subject only to those conditions set forth in the
applicable prospectus supplement, and the prospectus supplement will set forth the commissions payable for solicitation of these
contracts.
Direct Sales
We may also sell offered securities directly
to institutional investors or others. In this case, no underwriters or agents would be involved. The terms of such sales will be
described in the applicable prospectus supplement.
General Information
Broker-dealers, agents or underwriters may
receive compensation in the form of discounts, concessions or commissions from us and/or the purchasers of securities for whom
such broker-dealers, agents or underwriters may act as agents or to whom they sell as principal, or both. This compensation to
a particular broker-dealer might be in excess of customary commissions.
Underwriters, dealers and agents that participate
in any distribution of the offered securities may be deemed “underwriters” within the meaning of the Securities Act
of 1933, as amended (the “Securities Act”), so any discounts or commissions they receive in connection with the distribution
may be deemed to be underwriting compensation. Those underwriters and agents may be entitled, under their agreements with us, to
indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution by
us to payments that they may be required to make in respect of those civil liabilities. Certain of those underwriters or agents
may be customers of, engage in transactions with, or perform services for, us or our affiliates in the ordinary course of business.
We will identify any underwriters or agents, and describe their compensation, in a prospectus supplement. Any institutional investors
or others that purchase offered securities directly, and then resell the securities, may be deemed to be underwriters, and any
discounts or commissions received by them from us and any profit on the resale of the securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act.
We will file a supplement to this prospectus,
if required, pursuant to Rule 424(b) under the Securities Act, if we enter into any material arrangement with a broker, dealer,
agent or underwriter for the sale of securities through a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer. Such prospectus supplement will disclose:
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the name of any participating broker, dealer, agent or underwriter;
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the number and type of securities involved;
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the price at which such securities were sold;
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any securities exchanges on which such securities may be listed;
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the commissions paid or discounts or concessions allowed to any such broker, dealer, agent or underwriter, where applicable; and
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other facts material to the transaction.
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In order to facilitate the offering of certain
securities under this prospectus or an applicable prospectus supplement, certain persons participating in the offering of those
securities may engage in transactions that stabilize, maintain or otherwise affect the price of those securities during and after
the offering of those securities. Specifically, if the applicable prospectus supplement permits, the underwriters of those securities
may over-allot or otherwise create a short position in those securities for their own account by selling more of those securities
than have been sold to them by us and may elect to cover any such short position by purchasing those securities in the open market.
In addition, the underwriters may stabilize
or maintain the price of those securities by bidding for or purchasing those securities in the open market and may impose penalty
bids, under which selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed
if securities previously distributed in the offering are repurchased in connection with stabilization transactions or otherwise.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which
might otherwise prevail in the open market. The imposition of a penalty bid may also affect the price of securities to the extent
that it discourages resales of the securities. No representation is made as to the magnitude or effect of any such stabilization
or other transactions. Such transactions, if commenced, may be discontinued at any time.
In order to comply with the securities laws
of certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed brokers
or dealers. In addition, in certain states the securities may not be sold unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Rule 15c6-1 under the Exchange Act generally
requires that trades in the secondary market settle in two business days, unless the parties to any such trade expressly agree
otherwise. Your prospectus supplement may provide that the original issue date for your securities may be more than two scheduled
business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date
prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact
that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities,
to make alternative settlement arrangements to prevent a failed settlement.
This prospectus, any applicable prospectus
supplement and any applicable pricing supplement in electronic format may be made available on the Internet sites of, or through
other online services maintained by, us and/or one or more of the agents and/or dealers participating in an offering of securities,
or by their affiliates. In those cases, prospective investors may be able to view offering terms online and, depending upon the
particular agent or dealer, prospective investors may be allowed to place orders online.
Other than this prospectus, any applicable
prospectus supplement and any applicable pricing supplement in electronic format, the information on our website or the website
of any agent or dealer, and any information contained in any other website maintained by any agent or dealer:
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is not part of this prospectus, any applicable prospectus supplement or any applicable pricing supplement or the registration statement of which they form a part;
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has not been approved or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except, in each case, with respect to the respective website maintained by such entity; and
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should not be relied upon by investors.
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There can be no assurance that we will sell
all or any of the securities offered by this prospectus.
This prospectus may also be used in connection
with any issuance of common stock or preferred stock upon exercise of a warrant if such issuance is not exempt from the registration
requirements of the Securities Act.
In addition, we may issue the securities
as a dividend or distribution or in a subscription rights offering to our existing securityholders. In some cases, we or dealers
acting with us or on our behalf may also purchase securities and reoffer them to the public by one or more of the methods described
above. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods
described in the applicable prospectus supplement.
LEGAL
MATTERS
Unless otherwise indicated in the applicable
prospectus supplement, the validity of the securities offered hereby will be passed upon for us by Lowenstein Sandler LLP, New
York, New York. If the validity of the securities offered hereby in connection with offerings made pursuant to this prospectus
are passed upon by counsel for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement
relating to such offering.
EXPERTS
The financial statements as of and for the
year ended December 31, 2017 included in our Annual Report on Form 10-K for the year ended December 31, 2018, have been audited
by Brightman Almagor Zohar & Co., a member firm of Deloitte Touche Tohmatsu Limited and an independent registered public accounting
firm, as stated in their report, which is incorporated by reference in this prospectus and elsewhere in this registration statement
(which report expresses an unqualified opinion on the financial statements and includes an explanatory paragraph referring to the
Company’s ability to continue as a going concern). Such financial statements have been incorporated by reference in reliance
upon the report of such firm given upon their authority as experts in accounting and auditing.
The consolidated balance sheet of
Motus GI Holdings, Inc. and Subsidiaries as of December 31, 2018, and the related consolidated statements of comprehensive
loss, changes in shareholders’ equity, and cash flows for the year then ended, have been audited by EisnerAmper LLP, an
independent registered public accounting firm, as stated in their report which is incorporated herein by reference, which
report includes an explanatory paragraph about the existence of substantial doubt concerning the Company’s ability to
continue as a going concern. Such consolidated financial statements have been incorporated herein by reference in reliance on
the report of such firm given upon their authority as experts in accounting and auditing.
ADDITIONAL
INFORMATION
We have filed with the SEC a registration
statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which
is part of the registration statement, omits certain information, exhibits, schedules and undertakings set forth in the registration
statement. For further information pertaining to us and our securities, reference is made to our SEC filings and the registration
statement and the exhibits and schedules to the registration statement. Statements contained in this prospectus as to the contents
or provisions of any documents referred to in this prospectus are not necessarily complete, and in each instance where a copy of
the document has been filed as an exhibit to the registration statement, reference is made to the exhibit for a more complete description
of the matters involved.
In addition, registration statements and
certain other filings made with the SEC electronically are publicly available through the SEC’s web site at http://www.sec.gov.
The registration statement, including all exhibits and amendments to the registration statement, has been filed electronically
with the SEC.
We are subject to the information and periodic
reporting requirements of the Securities Exchange Act of 1934, as amended, and, in accordance with such requirements, will file
periodic reports, proxy statements, and other information with the SEC. These periodic reports, proxy statements, and other information
will be available for inspection and copying at the web site of the SEC referred to above. We also maintain a website at http://www.motusgi.com,
at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with,
or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of, and is not
incorporated into, this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on the information
in this prospectus and the additional information described above and under the heading “Incorporation of Certain Information
by Reference” below. We have not authorized any other person to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely upon it. We are not making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted. You should assume that the information in this prospectus was accurate
on the date of the front cover of this prospectus only. Our business, financial condition, results of operations and prospects
may have changed since that date.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with it into this prospectus, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus.
The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with
the SEC will automatically update and supersede information contained in this prospectus and any accompanying prospectus supplement.
We incorporate by reference the documents
listed below that we have previously filed with the SEC:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with
the SEC on March 26, 2019;
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our Current Reports on Form 8-K filed with the SEC on March 27, 2019 and April 12, 2019
(other than any portions thereof deemed furnished and not filed); and
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the description of our common stock contained in our Registration Statement on Form 8-A, filed on February 6, 2018, including any amendments thereto or reports filed for the purposes of updating this description.
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All reports and other documents that we
file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the
termination of the offering of the securities hereunder will also be considered to be incorporated by reference into this prospectus
from the date of the filing of these reports and documents, and will supersede the information herein;
provided, however
,
that all reports, exhibits and other information that we “furnish” to the SEC will not be considered incorporated by
reference into this prospectus. Any statement contained in a document incorporated by reference in this prospectus or any prospectus
supplement shall be deemed to be modified or superseded to the extent that a statement contained herein, therein or in any other
subsequently filed document that also is incorporated by reference herein or therein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus
or any prospectus supplement.
We will provide you without charge, upon
your oral or written request, with a copy of any or all reports, proxy statements and other documents we file with the SEC, as
well as any or all of the documents incorporated by reference in this prospectus or the registration statement (other than exhibits
to such documents unless such exhibits are specifically incorporated by reference into such documents). Requests for such copies
should be directed to Motus GI Holdings, Inc., Attn: Chief Financial Officer, 1301 East Broward Boulevard, 3rd Floor, Ft. Lauderdale,
FL, 33301. You may also direct any requests for documents to us by telephone at (954) 541-8000 or e-mail at IR@MotusGI.com.
$75,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Subscription Rights
Units
PROSPECTUS
_________________________, 2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution
The following table sets forth the costs and expenses payable by us in connection with the sale and distribution
of the securities being registered. All amounts are estimates except the SEC registration fee and FINRA fee (which have previously
been paid).
SEC Registration Fee
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$
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9,090
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FINRA fee
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11,750
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Legal Fees and Expenses
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Accounting Fees and Expenses
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*
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Trustee Fees
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*
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Printing and Engraving
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*
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Miscellaneous
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Total:
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$
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Estimated fees and expenses are not presently known.
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Item 15. Indemnification of Directors
and Officers
Section 145 of the
Delaware General Corporation Law (the “DGCL”) provides, in general, that a corporation incorporated under the laws
of the State of Delaware, as we are, may indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than a derivative action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person’s conduct was unlawful. In the case of a derivative action, a Delaware corporation may indemnify
any such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made in respect
of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such expenses.
Our certificate of
incorporation and bylaws provide that we will indemnify our directors, officers, employees and agents to the extent and in the
manner permitted by the provisions of the DGCL, as amended from time to time, subject to any permissible expansion or limitation
of such indemnification, as may be set forth in any amendment by stockholders or directors resolution.
Any repeal or modification
of these provisions approved by our stockholders will be prospective only and will not adversely affect any limitation on the liability
of any of our directors or officers existing as of the time of such repeal or modification.
We have director and
officer liability insurance to cover liabilities our directors and officers may incur in connection with their services to us,
including matters arising under the Securities Act.
We have entered into
indemnification agreements with all of our directors and named executive officers whereby we have agreed to indemnify those directors
and officers to the fullest extent permitted by law, including indemnification against expenses and liabilities incurred in legal
proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director
or officer is or was a director, officer, employee or agent of Motus GI Holdings, Inc. (the “Company”), provided that
such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not
opposed to, the best interests of the Company.
Item 16. Exhibits
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Filed herewith.
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To be filed, if applicable, by amendment or by a report filed under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
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***
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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Item 17. Undertakings
The undersigned Registrant
hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(a) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(b) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(c) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(a),
(1)(b) and (1)(c) above do not apply if the registration statement is on Form S-3 and the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the
purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for the
purpose of determining liability under the Securities Act of 1933 to any purchaser:
(a) If
the Registrant is relying on Rule 430B:
(i) Each prospectus filed by the
Registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date.
(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 Registrant undertakes that in a primary offering of securities of the 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 Registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(a) Any preliminary
prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424;
(b) Any free writing
prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;
(c) The portion of
any other free writing prospectus relating to the offering containing material information about Registrant or its securities provided
by or on behalf of the Registrant; and
(d) Any other communication
that is an offer in the offering made by the Registrant to the purchaser.
(6) The Registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) The undersigned
hereby undertakes 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 Act.
(8) 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 forgoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 Amendment No. 1 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of Ft. Lauderdale, State of Florida on April 12,
2019.
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MOTUS GI HOLDINGS, INC.
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By:
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/s/ Timothy P. Moran
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Timothy P. Moran
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Chief Executive Officer (Principal Executive Officer)
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Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to Registration Statement has been signed by the following
persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Timothy P. Moran
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Chief Executive Officer and Director
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April 12, 2019
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Timothy P. Moran
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(Principal Executive Officer)
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/s/ Andrew Taylor
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Chief Financial Officer
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April 12, 2019
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Andrew Taylor
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(Principal Financial and Accounting Officer)
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/s/ *
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Director
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April 12, 2019
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David Hochman
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/s/ *
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President and Director
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April 12, 2019
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Mark Pomeranz
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/s/ *
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Director
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April 12, 2019
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Darren Sherman
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/s/ *
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Director
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April 12, 2019
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Gary Jacobs
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/s/ *
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Director
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April 12, 2019
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Samuel Nussbaum
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/s/ *
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Director
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April 12, 2019
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Shervin Korangy
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/s/ *
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Director
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April 12, 2019
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Gary Pruden
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*By:
/s/ Timothy
P. Moran
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Timothy P. Moran
Attorney-in-Fact
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