Table
of Contents
Filed Pursuant to Rule 424(b)(5)
Registration No. 333-266194
PROSPECTUS SUPPLEMENT
(To Prospectus dated July 27, 2022)
675,000 Shares of Common Stock
Pre-Funded Warrants to Purchase up to 325,000 Shares of Common
Stock
Up to 325,000 Shares of Common Stock Underlying the Pre-Funded
Warrants
We are offering 675,000 shares (the “Shares”) of our common stock,
no par value (the “Common Stock”), and pre-funded warrants (the
“Pre-Funded Warrants”) to purchase 325,000 shares of our Common
Stock (and the shares of Common Stock underlying such Pre-Funded
Warrants) directly to institutional investors pursuant to this
prospectus supplement and the accompanying prospectus. The offering
price per Share and per Pre-Funded Warrant is $1.50 and $1.4999,
respectively. The Pre-Funded Warrants will have an exercise price
of $0.0001 per share and will be exercisable upon issuance until
exercised in full.
In a concurrent private placement, we are also issuing to the
purchasers of the Shares, warrants to purchase up to 2,000,000
shares of Common Stock (the “Purchase Warrants”) at an exercise
price of $1.60 per share (and the shares of Common Stock issuable
upon the exercise of the Purchase Warrants).The Purchase Warrants
and the shares of Common Stock issuable upon the exercise of such
warrants are not being registered under the Securities Act of 1933,
as amended (the “Securities Act”), are not being offered pursuant
to this prospectus supplement and the accompanying prospectus and
are being offered pursuant to the exemption provided in Section
4(a)(2) under the Securities Act.
Our Common Stock is currently traded on the Nasdaq Capital Market
under the symbol “RIBT.” On October 17, 2022, the last reported
sale price of our Common Stock on the Nasdaq Capital Market was
$1.60 per share.
As of the date of this prospectus supplement, the aggregate market
value of our outstanding Common Stock held by non-affiliates was
$16,361,209.60, based on 5,231,030 shares of outstanding Common
Stock, of which 118,152 shares are held by affiliates, and a per
share price of $3.20 per share, the closing price of our Common
Stock on August 24, 2022, which is the highest closing sale price
of our Common Stock on The Nasdaq Capital Market within the prior
60 days.
As of the date of this prospectus supplement, we have not offered
or sold any securities pursuant to General Instruction I.B.6 to
Form S-3 during the 12 calendar month period that ends on and
includes the date hereof. Pursuant to General Instruction I.B.6 of
Form S-3, in no event will we sell securities in a public primary
offering with a value exceeding more than one-third of our “public
float” (the market value of our Common Stock held by our
non-affiliates) in any 12-month period so long as our public float
remains below $75,000,000.
We have engaged H.C. Wainwright & Co., LLC (the “placement
agent”), as our exclusive placement agent in connection with this
offering. The placement agent has no obligation to buy any of the
securities from us or to arrange for the purchase or sale of any
specific number or dollar amount of securities. We have agreed to
pay the placement agent the placement agent fees set forth in the
table below. See “Plan of Distribution” beginning on page S-16 of
this prospectus supplement for more information regarding these
arrangements.
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Per Share
|
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Per Pre-
Funded
Warrant
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Total
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Public offering price
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$ |
1.50 |
|
|
|
1.4999 |
|
|
$ |
1,499,967.50 |
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Placement agent fees (1)
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|
$ |
0.105 |
|
|
|
0.105 |
|
|
$ |
102,750.00 |
|
|
Proceeds, before expenses, to us
|
|
$ |
1.3950 |
|
|
|
1.3949 |
|
|
$ |
1,397,217.50 |
|
|
(1)
|
We have agreed to reimburse the placement agent for certain
expenses. See “Plan of Distribution” for a description of
compensation payable to the placement agent.
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Delivery of our shares of Common Stock and Pre-Funded Warrants is
expected to be made on or about October 20, 2022.
An investment in our securities involves a high degree of risk.
Please read “Risk Factors” on page S-7 of this
prospectus supplement and in the documents incorporated by
reference into this prospectus supplement before investing in our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus supplement or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
H.C. Wainwright & Co.
The date of this prospectus supplement is October 18, 2022
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS SUPPLEMENT
This prospectus supplement is part of a registration statement that
we have filed with the Securities and Exchange Commission (the
“SEC”) utilizing a “shelf” registration process. Under the shelf
registration process, we may offer securities having an aggregate
offering price of up to $50,000,000 under the accompanying base
prospectus. This prospectus supplement may add to, update or change
information in the accompanying prospectus and the documents
incorporated by reference into this prospectus supplement or the
accompanying prospectus.
We provide information to you about this offering of shares of our
Common Stock and Pre-Funded Warrants in two separate documents that
are bound together: (1) this prospectus supplement, which describes
the specific details regarding this offering of shares of our
Common Stock and the Pre-Funded Warrants; and (2) the accompanying
base prospectus, which provides general information, some of which
may not apply to this offering. Generally, when we refer to this
“prospectus,” we are referring to both documents combined.
If information in this prospectus supplement is inconsistent with
the accompanying base prospectus or with any document incorporated
by reference that was filed with the SEC before the date of this
prospectus supplement, you should rely on this prospectus
supplement. Any statement so modified will be deemed to constitute
a part of this prospectus only as so modified, and any statement so
superseded will be deemed not to constitute a part of this
prospectus. However, if any statement in one of these documents is
inconsistent with a statement in another document having a later
date—for example, a document incorporated by reference in this
prospectus supplement, the statement in the document having the
later date modifies or supersedes the earlier statement as our
business, financial condition, results of operations and prospects
may have changed since the earlier dates.
This prospectus supplement, the accompanying base prospectus and
the documents incorporated into each by reference include important
information about us, the securities being offered and other
information you should know before investing in our securities. You
should also read and consider information in the documents we have
referred you to in the section of this prospectus supplement and
the accompanying base prospectus entitled “Where You Can Find More
Information” and “Incorporation of Certain Documents By
Reference.”
You should rely only on the information contained in or
incorporated by reference into this prospectus supplement and the
accompanying base prospectus we may provide to you in connection
with this offering and the information incorporated or deemed to be
incorporated by reference therein. We have not, and the placement
agent has not, authorized anyone to provide you with information
that is in addition to or different from that contained or
incorporated by reference in this prospectus supplement and the
accompanying base prospectus. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not,
and the placement agent is not, offering to sell these securities
in any jurisdiction where the offer or sale is not permitted. You
should not assume that the information contained or incorporated by
reference in this prospectus supplement or the accompanying base
prospectus is accurate as of any date other than as of the date of
this prospectus supplement or the accompanying base prospectus, as
the case may be, or in the case of the documents incorporated by
reference, the date of such documents regardless of the time of
delivery of this prospectus supplement and the accompanying base
prospectus or any sale of our securities. Our business, financial
condition, liquidity, results of operations and prospects may have
changed since those dates.
We further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus
supplement were made solely for the benefit of the parties to such
agreement, including, in some cases, for the purpose of allocating
risk among the parties to such agreements, and should not be deemed
to be a representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of
the date when made. Accordingly, such representations, warranties
and covenants should not be relied on as accurately representing
the current state of our affairs.
This prospectus supplement contains and incorporates by reference
market data and industry statistics and forecasts that are based on
independent industry publications and other publicly available
information. Although we believe that these sources are reliable,
we do not guarantee the accuracy or completeness of this
information and we have not independently verified this
information. Although we are not aware of any misstatements
regarding the market and industry data presented in this prospectus
and the documents incorporated herein by reference, these estimates
involve risks and uncertainties and are subject to change based on
various factors, including those discussed under the heading “Risk
Factors” in this prospectus supplement and under similar headings
in the other documents that are incorporated by reference into this
prospectus. Accordingly, investors should not place undue reliance
on this information.
We are offering to sell, and are seeking offers to buy, the shares
of our Common Stock and the Pre-Funded Warrants only in
jurisdictions where such offers and sales are permitted. No action
has been or will be taken in any jurisdiction by us or the
placement agent that would permit a public offering of the shares
of our Common Stock and the Pre-Funded Warrants or the possession
or distribution of this prospectus supplement and the accompanying
base prospectus in any jurisdiction, other than in the United
States. Persons outside the United States who come into possession
of this prospectus supplement and the accompanying base prospectus
must inform themselves about, and observe any restrictions relating
to, the offering of the shares of our Common Stock and the
Pre-Funded Warrants and the distribution of this prospectus
supplement and the accompanying base prospectus outside the United
States. This prospectus supplement and the accompanying base
prospectus do not constitute, and may not be used in connection
with, an offer to sell, or a solicitation of an offer to buy, any
securities offered by this prospectus supplement and the
accompanying base prospectus by any person in any jurisdiction in
which it is unlawful for such person to make such an offer or
solicitation.
In this prospectus supplement, “we,” “us,” “our,” and the
“company,” refer to RiceBran Technologies, a California
corporation, and its subsidiaries, unless the context otherwise
requires.
This prospectus supplement and the information incorporated herein
by reference include trademarks, service marks and trade names
owned by us or other companies. All trademarks, service marks and
trade names included or incorporated by reference into this
prospectus supplement are the property of their respective
owners.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus supplement we may file
constitute “forward-looking statements” within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”) and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). These statements relate to
future events concerning our business and to our future revenues,
operating results and financial condition. In some cases, you can
identify forward-looking statements by terminology such as “may,”
“will,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,”
“intend,” “believe,” “estimate,” “forecast,” “predict,” “propose,”
“potential” or “continue,” or the negative of those terms or other
comparable terminology.
Any forward-looking statements contained in this prospectus
supplement are only estimates or predictions of future events based
on information currently available to our management and
management’s current beliefs about the potential outcome of future
events. Whether these future events will occur as management
anticipates, whether we will achieve our business objectives, and
whether our revenues, operating results or financial condition will
improve in future periods are subject to numerous risks. There are
a number of important factors that could cause actual results to
differ materially from the results anticipated by these
forward-looking statements. These important factors include those
that we discuss under the heading “Risk Factors” and in other
sections of our Annual Report on Form 10-K for the year ended
December 31, 2021, as filed with the SEC on March 17, 2022, as
amended on May 2, 2022, as well as in our other reports filed from
time to time with the SEC that are incorporated by reference into
this prospectus. You should read these factors and the other
cautionary statements made in this prospectus and in the documents
we incorporate by reference into this prospectus as being
applicable to all related forward-looking statements wherever they
appear in this prospectus or the documents we incorporate by
reference into this prospectus. If one or more of these factors
materialize, or if any underlying assumptions prove incorrect, our
actual results, performance or achievements may vary materially
from any future results, performance or achievements expressed or
implied by these forward-looking statements. We undertake no
obligation to publicly update any forward-looking statements,
whether as a result of new information, future events or otherwise,
except as required by law.
PROSPECTUS
SUPPLEMENT SUMMARY
This summary highlights certain information about this offering
and selected information contained elsewhere in or incorporated by
reference into this prospectus supplement and the accompanying
prospectus. This summary is not complete and does not contain all
of the information that you should consider before deciding whether
to invest in our securities. You should carefully read this entire
prospectus supplement and the accompanying prospectus, including
the information incorporated by reference herein and therein,
including the “Risk Factors” section contained in
this prospectus supplement and the other documents incorporated by
reference into this prospectus supplement.
Overview
We are a specialty ingredient company that utilizes proprietary
stabilization and separation technologies, supported by specialty
milling processes, to deliver critical nutritional and functional
ingredients derived from rice and other small and ancient grains
for the food, nutraceutical, companion animal and equine feed
categories. We are focused on milling rice and other small and
ancient grains and producing, processing, and marketing value-added
healthy, natural and nutrient dense products derived from these
grains. Notably, we are a market leader in North America in
converting raw rice bran into stabilized rice bran (“SRB”) and high
value SRB derivative products including:
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RiBalance, a complete rice bran nutritional package derived from
further processing SRB;
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RiSolubles, a highly nutritious, carbohydrate and lipid rich
fraction of RiBalance;
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RiFiber, a protein and fiber rich insoluble derivative of
RiBalance; and
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our family of ProRyza products, which includes derivatives composed
of protein and protein/fiber blends.
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Our existing and target customers are food and animal nutrition
manufacturers, wholesalers and retailers, both domestically and
internationally.
Corporate Information
We incorporated under the laws of the state of California in 2000,
and our principal executive offices are located at 25420 Kuykendahl
Rd., Suite B300, Tomball, TX 77375. Our telephone number is (281)
675-2421. Our website is located at www.ricebrantech.com.
Information contained on, or that can be accessed through, our
website is not part of this prospectus.
Recent Developments
Private Placement of Purchase Warrants
In a concurrent private placement, we are also issuing to the
purchasers of the Shares and Pre-Funded Warrants, warrants to
purchase up to 2,000,000 shares of Common Stock. The Purchase
Warrants have an exercise price of $1.60 per share, are exercisable
six months following issuance and will have a term of two and
one-half years from the initial exercise date.
Reverse Stock Split
On August 25, 2022, we amended our articles of incorporation by
filing with the California Secretary of State an amendment to
effect a 1-for-10 reverse stock split of our Common Stock and to
decrease the total number of authorized shares of our Common Stock
on a post-reverse stock split basis, so that the total number of
shares that we have the authority to issue is now 15,000,000 shares
of Common Stock. The reverse stock split became effective at 11:59
PM PST on August 25, 2022.
Unless otherwise noted, all share and per share numbers contained
in this prospectus supplement are reflected on a post-split basis
for all periods presented.
THE
OFFERING
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Issuer |
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RiceBran
Technologies |
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Securities offered by us |
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675,000 shares of our Common Stock
Pre-Funded Warrants to purchase 325,000 shares of Common Stock at
an exercise price of $0.0001 per share. Each Pre-Funded Warrant
will be exercisable immediately upon issuance and will not expire
until exercised in full. This prospectus supplement also relates to
the offering of the shares of Common Stock issuable upon exercise
of such Pre-Funded Warrants. See “Description of Securities That We
Are Offering—Pre-Funded Warrants” for a discussion on the terms of
the Pre-Funded Warrants.
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Offering price per Share or Pre-Funded Warrant |
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$1.50 per Share and
$1.4999 per Pre-Funded Warrant |
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Common stock to be outstanding after this offering |
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6,231,030 shares
(1) |
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Use of proceeds |
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We estimate the net
proceeds to us from this offering will be approximately $1.2
million after deducting estimated offering expenses payable by us.
We intend to use the net proceeds from the sale of the securities
offered by this prospectus for general corporate purposes, which
may include funding capital expenditures and working capital and
repaying indebtedness. See “Use of Proceeds.” |
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Concurrent Private Placement |
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In a concurrent
private placement, we are selling to the investors purchasing the
Shares and Pre-Funded Warrants in this offering Purchase Warrants
to purchase up to 2,000,000 of our shares of Common Stock at an
exercise price of $1.60 per share. The Purchase Warrants are
exercisable six months following issuance and will have a term of
two and one-half years from the initial exercise date. We will
receive gross proceeds from exercise of the Purchase Warrants in
such concurrent private placement transaction solely to the extent
such Purchase Warrants are exercised for cash. The Purchase
Warrants and the shares of Common Stock issuable upon the exercise
of the Purchase Warrants are not being offered pursuant to this
prospectus supplement and the accompanying prospectus and are being
offered pursuant to the exemption provided in
Section 4(a)(2) under the Securities Act. There is no
established public trading market for the Purchase Warrants, and we
do not expect a market to develop. In addition, we do not intend to
list the Purchase Warrants on The Nasdaq Capital Market, any other
national securities exchange or any other nationally recognized
trading system. See “Private Placement Transaction.” |
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Risk factors |
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You should read the
“Risk Factors” section of this prospectus supplement and in the
documents incorporated by reference in this prospectus supplement
for a discussion of factors to consider before deciding to purchase
shares of our Common Stock. |
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Nasdaq Capital Market symbol |
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“RIBT” |
(1) Includes the shares underlying the Pre-Funded Warrants
but excludes the shares underlying the Purchase Warrants and
Placement Agent Warrants (as defined below).
The number of shares of our Common Stock that will be outstanding
immediately after this offering as shown above is based on
5,231,030 shares of Common Stock issued and outstanding as of June
30, 2022, after giving effect to the 1-for-10 reverse stock split
that took effect on August 25, 2022, and, unless otherwise
indicated excludes (on a post-split basis):
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58,971 shares of Common Stock reserved for future issuance upon the
exercise of outstanding options, at a weighted average exercise
price of $19.35 per share;
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19,862 shares of Common Stock reserved for issuance under our
equity incentive plan;
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260,769 shares of Common Stock reserved for future issuance upon
the exercise of outstanding warrants;
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2,000,000 shares of our Common Stock issuable upon the exercise of
the Purchase Warrants offered in the concurrent private placement
with an exercise price of $1.60 per share as described under
“Private Placement Transaction”;
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63,000 shares of Common Stock issuable upon exercise of warrants
issued to the placement agent as described in “Plan of
Distribution” (the “Placement Agent Warrants”);
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168,792 shares of Common Stock issuable upon vesting of outstanding
restricted stock units; and
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14,235 shares of Common Stock reserved for future issuance upon the
conversion of outstanding Series G Preferred Stock.
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RISK
FACTORS
An investment in our securities involves a high degree of risk.
Prior to making a decision about investing in our securities, you
should carefully consider the risk factors described below and in
the accompanying prospectus and the risk factors discussed in the
sections entitled “Risk Factors” contained in our
most recent annual report on Form 10-K and in our subsequent
Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K,
as updated by our subsequent filings under the Exchange Act, each
of which is incorporated by reference in this prospectus supplement
and the accompanying prospectus, together with all of the other
information contained in this prospectus supplement and the
accompanying prospectus. Additional risks and uncertainties not
presently known to us, or that we currently view as immaterial, may
also impair our business. If any of these risks actually occur, our
business, financial condition and results of operations could be
materially and adversely affected. This could cause the trading
price of our Common Stock to decline, resulting in a loss of all or
part of your investment.
Risks Related to this Offering
We will have broad discretion in the use of the net proceeds
from this offering and, despite our efforts, we may use the net
proceeds in a manner that does not increase the value of your
investment.
We intend to use the net proceeds, if any, from the sales of the
securities offered hereby for general corporate purposes, which may
include, among other things, funding capital expenditures and
working capital and repaying indebtedness. We retain broad
discretion over the use of the net proceeds from the sale of shares
of Common Stock and Pre-Funded Warrants offered hereby.
Accordingly, you will need to rely upon the judgment of our
management with respect to the use of proceeds, potentially with
only limited information concerning our specific intentions. These
proceeds could be applied in ways that do not improve our operating
results or increase the value of your investment.
We may allocate net proceeds from this offering in ways which
differ from our estimates based on our current plans and
assumptions discussed in the section
entitled “Use of
Proceeds” and with which you may not
agree.
The allocation of net proceeds of the offering set forth in the
“Use of Proceeds” section below represents our estimates based upon
our current plans and assumptions regarding industry and general
economic conditions, our future revenues and expenditures. The
amounts and timing of our actual expenditures will depend on
numerous factors, including market conditions, cash generated by
our operations, business developments and related rate of growth.
We may find it necessary or advisable to use portions of the
proceeds from this offering for other purposes. Circumstances that
may give rise to a change in the use of proceeds and the alternate
purposes for which the proceeds may be used are discussed in the
section entitled “Use of Proceeds” below. You may not have an
opportunity to evaluate the economic, financial or other
information on which we base our decisions on how to use our
proceeds. As a result, you and other stockholders may not agree
with our decisions. See “Use of Proceeds” below for additional
information
If you purchase shares of our Common Stock and Pre-Funded
Warrants sold in this offering, you may experience immediate
and substantial dilution in the net tangible book value of your
shares. In addition, we may issue additional equity or convertible
debt securities in the future, which may result in additional
dilution to investors.
The price per share of our Common Stock being offered may be higher
than the net tangible book value per share of our outstanding
Common Stock prior to this offering. Based on an aggregate of
675,000 shares of our Common Stock sold at a price of $1.50 per
share and Pre-Funded Warrants to purchase 325,000 shares of Common
Stock sold at a price of $1.4999 per Pre-Funded Warrant, for
aggregate gross proceeds of approximately $1.5 million, and after
deducting commissions and estimated offering expenses payable by
us, new investors in this offering will incur immediate dilution of
$(0.98) per share. For a more detailed discussion of the foregoing,
see the section entitled “Dilution” below.
There is no public market for the Pre-Funded Warrants to
purchase shares of our Common Stock being offered in this
offering.
There is no established public trading market for the Pre-Funded
Warrants being offered in this offering, and we do not expect a
market to develop. In addition, we do not intend to apply to list
the Pre-Funded Warrants on any national securities exchange or
other nationally recognized trading system, including The Nasdaq
Capital Market. Without an active trading market, the liquidity of
the Pre-Funded Warrants will be limited.
The Pre-Funded Warrants purchased in this offering do not
entitle the holder to any rights as common stockholders until the
holder exercises the warrant for shares of our Common Stock, except
as set forth in the Pre-Funded Warrants.
Until you acquire shares of our Common Stock upon exercise of your
Pre-Funded Warrants purchased in this offering, such warrants will
not provide you any rights as a common stockholder, except as set
forth therein. Upon exercise of your Pre-Funded Warrants purchased
in this offering, you will be entitled to exercise the rights of a
common stockholder only as to matters for which the record date
occurs on or after the exercise date.
The Pre-Funded Warrants are speculative in
nature.
The Pre-Funded Warrants offered hereby do not confer any rights of
Common Stock ownership on their holders, such as voting rights, but
rather merely represent the right to acquire shares of Common Stock
at a fixed price. Specifically, commencing on the date of issuance,
holders of the Pre-Funded Warrants may acquire the shares of Common
Stock issuable upon exercise of such warrants at an exercise price
of $0.0001 per share of Common Stock. Moreover, following this
offering, the market value of the Pre-Funded Warrants is uncertain
and there can be no assurance that the market value of the
Pre-Funded Warrants will equal or exceed their public offering
price.
Provisions of the Pre-Funded Warrants offered by this
prospectus could discourage an acquisition of us by a third
party.
Certain provisions of the Pre-Funded Warrants offered by this
prospectus could make it more difficult or expensive for a third
party to acquire us. The Pre-Funded Warrants prohibit us from
engaging in certain transactions constituting “fundamental
transactions” unless, among other things, the surviving entity
assumes our obligations under the Pre-Funded Warrants. These and
other provisions of the Pre-Funded Warrants offered by this
prospectus could prevent or deter a third party from acquiring us
even where the acquisition could be beneficial to stockholders.
You may experience future dilution as a result of future
equity offerings.
In order to raise additional capital, we may in the future offer
additional shares of our Common Stock or other securities
convertible into or exchangeable for our Common Stock at prices
that may not be the same as the price per share in this offering.
We may sell shares or other securities in any other offering at a
price per share that is less than the price per share paid by
investors in this offering, and investors purchasing shares or
other securities in the future could have rights superior to
existing stockholders. The price per share at which we sell
additional shares of our Common Stock, or securities convertible or
exchangeable into Common Stock, in future transactions may be
higher or lower than the price per share paid by investors in this
offering.
Resales of our Common Stock in the public market during this
offering by our stockholders may cause the market price of our
Common Stock to fall.
We may issue Common Stock from time to time. This issuance from
time to time of these new shares of our Common Stock, or our
ability to issue these shares of Common Stock in this offering,
could result in resales of our Common Stock by our current
stockholders concerned about the potential dilution of their
holdings. In turn, these resales could have the effect of
depressing the market price for our Common Stock.
We are not currently paying dividends and will likely not pay
dividends for the foreseeable future.
We have never paid or declared any cash dividends on our Common
Stock. We currently intend to retain all available funds and any
future earnings to fund the development and expansion of our
business, and we do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to pay cash dividends
will be at the discretion of our board of directors and will depend
on our financial condition, results of operations, capital
requirements, contractual restrictions and other factors that our
board of directors deems relevant.
The market price of our Common Stock may be adversely
affected by market conditions affecting the stock markets in
general, including price and trading fluctuations on
Nasdaq.
Market conditions may result in volatility in the level of, and
fluctuations in, market prices of stocks generally and, in turn,
our Common Stock and sales of substantial amounts of our Common
Stock in the market, in each case being unrelated or
disproportionate to changes in our operating performance. A weak
global economy or other circumstances, such as changes in tariffs
and trade, could also contribute to extreme volatility of the
markets, which may have an effect on the market price of our Common
Stock.
We cannot predict the effect that our reverse stock split
will have on the market price for shares of our Common
Stock.
On August 25, 2022, we completed a 1-for-10 reverse stock split of
our shares of Common Stock and proportionate reduction in the
number of outstanding Common Stock from 52,310,304 to 5,231,030.
The reverse stock split was effected in accordance with the
authorization adopted by our stockholders at the annual meeting of
stockholders held on July 14, 2022. Our board of directors
determined to effect the reverse stock split because it is a
potentially effective means to increase the per share market price
of our Common Stock and thus enable us to regain compliance with
the $1.00 per share minimum closing price required to maintain
continued listing of our Common Stock on Nasdaq under Nasdaq
Listing Rule 5450(a)(1), or the Minimum Bid Requirement. The board
of directors also believed that a reverse stock split could improve
the marketability and liquidity of the Common Stock. However, there
can be no assurance that the market price of our Common Stock
following the reverse stock split will remain at the level required
for continuing compliance with the Minimum Bid Requirement, and
there are a number of risks and potential disadvantages associated
with a reverse stock split.
We cannot predict the effect of the reverse stock split upon the
market price for shares of our Common Stock, and the history of
similar reverse stock splits for companies in like circumstances
has varied. Some investors may have a negative view of a reverse
stock split. Even if the reverse stock split has a positive effect
on the market price for shares of our Common Stock, performance of
our business and financial results, general economic conditions and
the market perception of our business, and other adverse factors
which may not be in our control could lead to a decrease in the
price of our Common Stock following the reverse stock split.
Even if the reverse stock split does result in an increased market
price per share of our Common Stock, the market price per share
following the reverse stock split may not increase in proportion to
the reduction of the number of shares of our Common Stock
outstanding before the implementation of the reverse stock split.
Accordingly, even with an increased market price per share, the
total market capitalization of shares of our Common Stock after the
reverse stock split could be lower than the total market
capitalization before the reverse stock split. Also, even if there
is an initial increase in the market price per share of our Common
Stock after the reverse stock split, the market price many not
remain at that level.
If the market price of shares of our Common Stock declines
following the reverse stock split, the percentage decline as an
absolute number and as a percentage of our overall market
capitalization may be greater than would occur in the absence of
the reverse stock split due to decreased liquidity in the market
for our Common Stock. Accordingly, the total market capitalization
of our Common Stock following the reverse stock split could be
lower than the total market capitalization before the reverse stock
split.
USE OF
PROCEEDS
We estimate that the net proceeds from the sale of the 675,000
shares of Common Stock and the Pre-Funded Warrants to purchase
325,000 shares of Common Stock that we are offering will be
approximately $1.2 million, after deducting the estimated placement
agent fees and estimated offering expenses payable by us.
We will only receive additional proceeds from the exercise of the
Purchase Warrants issuable in connection with the private placement
if the Purchase Warrants are exercised and the holders of such
Warrants pay the exercise price in cash upon such exercise and do
not utilize the cashless exercise provision of the Purchase
Warrants.
We intend to use the net proceeds from this offering for general
corporate purposes, which may include funding capital expenditures
and working capital and repaying indebtedness. The indebtedness we
intend to repay includes our $1.8 million line of credit with Wells
Fargo.
The intended use of the net proceeds of the offering set forth
above represents our estimates based upon our current plans and
assumptions regarding industry and general economic conditions, our
future revenues and expenditures.
The amounts and timing of our actual expenditures will depend upon
numerous factors, including market conditions, cash generated by
our operations, business developments and related rate of growth.
We may find it necessary or advisable to use portions of the
proceeds from this offering for other purposes.
Circumstances that may give rise to a change in the use of proceeds
and the alternate purposes for which the proceeds may be used
include:
| |
●
|
the existence of other opportunities or the need to take advantage
of changes in timing of our existing activities;
|
| |
●
|
the need or desire on our part to accelerate, increase or eliminate
existing initiatives due to, among other things, changing market
conditions and competitive developments; and/or
|
| |
●
|
if strategic opportunities of which we are not currently aware
present themselves (including acquisitions, joint ventures,
licensing and other similar transactions).
|
From time to time, we evaluate these and other factors and we
anticipate continuing to make such evaluations to determine if the
existing allocation of resources, including the proceeds of this
offering, is being optimized. Pending such uses, we intend to
invest the net proceeds of this offering in direct and guaranteed
obligations of the United States, interest-bearing,
investment-grade instruments or certificates of deposit.
DIVIDEND
POLICY
We have never paid or declared any cash dividends on our Common
Stock. We currently intend to retain all available funds and any
future earnings to fund the development and expansion of our
business, and we do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to pay cash dividends
will be at the discretion of our board of directors and will depend
on our financial condition, results of operations, capital
requirements, contractual restrictions and other factors that our
board of directors deems relevant.
DILUTION
If you invest in our Common Stock, your interest will be diluted
immediately to the extent of the difference between the offering
price and the as adjusted net tangible book value per share of our
Common Stock after this offering.
Our net tangible book value on June 30, 2022 was approximately
$14.3 million, or $2.73 per share (as adjusted for our 1-for-10
reverse stock split that took effect August 25, 2022). “Net
tangible book value” is total assets minus the sum of tangible
liabilities and intangible assets. “Net tangible book value per
share” is net tangible book value divided by the total number of
shares outstanding.
After giving effect to the sale of 675,000 shares of our Common
Stock in this offering at an offering price of $1.50 per share and
the sale of Pre-Funded Warrants to purchase 325,000 shares of
Common Stock at an offering price of $1.4999 per Pre-Funded Warrant
and the issuance of the shares of Common Stock underlying the
Pre-Funded Warrants upon the exercise thereof and after deducting
estimated offering commissions and estimated offering expenses
payable by us, our as adjusted net tangible book value as of June
30, 2022 would have been approximately $15.5 million, or $2.48 per
share. This represents an immediate decrease in as adjusted net
tangible book value of $0.25 per share to existing stockholders and
an immediate dilution of $(0.98) per share to new investors
purchasing securities in this offering. The following table
illustrates this per share dilution:
|
Offering price per share of Common Stock
|
|
|
|
|
|
$ |
1.50 |
|
|
Net tangible book value per share as of June 30, 2022
|
|
$ |
2.73 |
|
|
|
|
|
|
Decrease in net tangible book value per share attributable to new
investors purchasing our Common Stock in this offering
|
|
$ |
0.25 |
|
|
|
|
|
|
As adjusted net tangible book value per share after giving effect
to this offering
|
|
|
|
|
|
$ |
2.48 |
|
|
Dilution per share to investors purchasing our Common Stock in this
offering
|
|
|
|
|
|
$ |
(0.98 |
) |
The table and discussion above are based on 5,231,030 shares of
Common Stock issued and outstanding as of June 30, 2022, after
giving effect to the 1-for-10 reverse stock split that took effect
on August 25, 2022, and excludes as of that date (on a post-split
basis):
| |
●
|
58,971 shares of Common Stock reserved for future issuance upon the
exercise of outstanding options, at a weighted average exercise
price of $19.35 per share;
|
| |
●
|
19,862 shares of Common Stock reserved for issuance under our
equity incentive plan;
|
| |
●
|
260,769 shares of Common Stock reserved for future issuance upon
the exercise of outstanding warrants;
|
| |
●
|
2,000,000 shares of our Common Stock issuable upon the exercise of
the Purchase Warrants offered in the concurrent private placement
with an exercise price of $1.60 per share as described in “Private
Placement Transaction”;
|
| |
●
|
63,000 shares of our Common Stock issuable upon the exercise of the
Placement Agent Warrants;
|
| |
●
|
168,792 shares of Common Stock issuable upon vesting of outstanding
restricted stock units; and
|
| |
●
|
14,235 shares of Common Stock reserved for future issuance upon the
conversion of outstanding Series G Preferred Stock.
|
To the extent that any outstanding options are exercised, new
options or additional securities are issued under our equity
incentive plans, or we otherwise issue additional shares of Common
Stock in the future, at a price less than the offering price, there
will be further dilution to the investors.
In addition, we may choose to raise additional capital due to
market conditions or strategic considerations even if we believe we
have sufficient funds for our current or future operating plans. To
the extent that additional capital is raised through the sale of
equity or convertible debt securities, the issuance of these
securities could result in further dilution to our
stockholders.
CAPITALIZATION
The following table sets forth our capitalization as of June 30,
2022, as follows:
| |
●
|
on an actual basis; and
|
| |
●
|
on an as adjusted basis to give effect to the sale of Common Stock,
Pre-Funded Warrants and Purchase Warrants in this offering. The as
adjusted column in the table below includes the net proceeds from
this offering as cash and cash equivalents pending the application
of such net proceeds as described in “Use of
Proceeds.” The table below assumes the full exercise of
the Pre-Funded Warrants resulting in the issuance of 325,000 shares
of our Common Stock; however, it does not take into account the
exercise of the Purchase Warrants
|
You should read this table together with the section of this
prospectus supplement entitled “Use of Proceeds” and with the
financial statements and related notes and the other information
that we incorporated by reference into this prospectus supplement
and the accompanying prospectus, including our Annual Report on
Form 10-K and Quarterly Reports on Form 10-Q that we file with the
SEC from time to time.
|
|
|
As of June 30, 2022
|
|
|
(in thousands, except share amounts) |
|
Actual
|
|
|
As Adjusted
|
|
|
Cash and Cash Equivalents
|
|
$ |
5,124 |
|
|
$ |
6,324 |
|
|
Long-term debt, including current portion
|
|
|
1,959 |
|
|
|
1,959 |
|
|
Equity attributable to our stockholders:
|
|
|
|
|
|
|
|
|
|
Preferred stock, no par value, 20,000,000 shares authorized and
Series G, convertible, 300 shares authorized, issued and
outstanding, stated value $15, 15, actual and as adjusted
|
|
|
75 |
|
|
|
75 |
|
|
Common stock, no par value, 15,000,000 shares authorized and
5,231,030 shares issued and outstanding as of June 30, 2022,
actual; 6,231,030 shares issued and outstanding, as adjusted
|
|
|
326,672 |
|
|
|
327,872 |
|
|
Accumulated deficit
|
|
|
(311,996 |
) |
|
|
(311,996 |
) |
|
Total equity attributable to our stockholders
|
|
|
14,751 |
|
|
|
15,951 |
|
|
Total capitalization
|
|
$ |
16,710 |
|
|
$ |
17,910 |
|
The table above is based on 5,231,030 shares of Common Stock
outstanding as of June 30, 2022, after giving effect to the
1-for-10 reverse stock split that took effect on August 25, 2022,
and excludes (on a post-split basis):
| |
●
|
58,971 shares of Common Stock reserved for future issuance upon the
exercise of outstanding options, at a weighted average exercise
price of $19.35 per share;
|
| |
●
|
19,862 shares of Common Stock reserved for issuance under our
equity incentive plan;
|
| |
●
|
260,769 shares of Common Stock reserved for future issuance upon
the exercise of outstanding warrants;
|
| |
●
|
2,000,000 shares of our Common Stock issuable upon the exercise of
the Purchase Warrants offered in the concurrent private placement
with an exercise price of $1.60 per share as described in “Private
Placement Transaction”;
|
| |
●
|
63,000 shares of our Common Stock issuable upon the exercise of the
Placement Agent Warrants;
|
| |
●
|
168,792 shares of Common Stock issuable upon vesting of outstanding
restricted stock units; and
|
| |
●
|
14,235 shares of Common Stock reserved for future issuance upon the
conversion of outstanding Series G Preferred Stock.
|
DESCRIPTION
OF SECURITIES THAT WE ARE OFFERING
Common Stock
See “Description of Capital Stock—Common Stock” on page 7 of the
accompanying prospectus for a description of the material terms of
our Common Stock.
Pre-Funded Warrants
The following summary of certain terms and provisions of the
Pre-Funded Warrants that are being offered hereby is not complete
and is subject to, and qualified in its entirety by the provisions
of, the Pre-Funded Warrants. You should carefully review the terms
and provisions of the form of the Pre-Funded Warrant for a complete
description of the terms and conditions of the Pre-Funded
Warrants.
Duration and Exercise Price. The Pre-Funded Warrants offered
hereby will entitle the holder thereof to purchase up to an
aggregate of 325,000 shares of our Common Stock at an exercise
price of $0.0001 per share, commencing immediately on the date of
issuance. The Pre-Funded Warrants will be issued separately from
the Common Stock and may be transferred separately immediately
thereafter.
Exercisability. The Pre-Funded Warrants will be
exercisable, at the option of each holder, in whole or in part, by
delivering to us a duly executed exercise notice accompanied by
payment in full for the number of shares of Common Stock purchased
upon such exercise (except in the case of a cashless exercise as
discussed below). A holder (together with its affiliates) may not
exercise any portion of such holder’s warrants to the extent that
the holder would own more than 4.99% (or, at the election of the
holder, 9.99%) of our outstanding shares of Common Stock
immediately after exercise, except that upon notice from the holder
to us, the holder may increase or decrease the amount of ownership
of outstanding shares of Common Stock after exercising the
holder’s Pre-Funded Warrants up to 9.99% of the number of
shares of Common Stock outstanding immediately after giving effect
to the exercise, as such percentage ownership is determined in
accordance with the terms of the Pre-Funded Warrants, provided
that any increase in this limitation shall not be effective until
61 days after notice to us.
Cashless Exercise. In lieu of making the cash payment
otherwise contemplated to be made to us upon the exercise of a
Pre-Funded Warrant in payment of the aggregate exercise price, the
holder may elect instead to receive upon such exercise (either in
whole or in part) the net number of shares of Common Stock
determined according to a formula set forth in the Pre-Funded
Warrant.
Exercise Price Adjustment. The exercise price of the
Pre-Funded Warrants is subject to appropriate adjustment in the
event of certain stock dividends and distributions, stock splits,
stock combinations, reclassifications or similar events affecting
our Common Stock.
Fundamental Transaction. In the event of any
fundamental transaction, as described in the Pre-Funded
Warrants and generally including any merger with or into another
entity, sale of all or substantially all of our assets, tender
offer or exchange offer, or reclassification of our shares of
Common Stock, then upon any subsequent exercise of
a Pre-Funded Warrant, the holder will have the right to
receive as alternative consideration, for each share of Common
Stock that would have been issuable upon such exercise immediately
prior to the occurrence of such fundamental transaction, the number
of shares of Common Stock of the successor or acquiring corporation
or of our company, if it is the surviving corporation, and any
additional consideration receivable upon or as a result of such
transaction by a holder of the number of shares of Common Stock for
which the Pre-Funded Warrant is exercisable immediately prior
to such event.
Transferability. In accordance with its terms and subject to
applicable laws, a Pre-Funded Warrant may be transferred
at the option of the holder upon surrender of the Pre-Funded
Warrant to us together with the appropriate instruments of transfer
and payment of funds sufficient to pay any transfer taxes (if
applicable).
Fractional Shares. No fractional shares of Common Stock will
be issued upon the exercise of the Pre-Funded Warrants.
Rather, the number of shares of Common Stock to be issued will, at
our election, either be rounded up to the nearest whole number or
we will pay a cash adjustment in respect of such final fraction in
an amount equal to such fraction multiplied by the exercise
price.
Exchange Listing. There is no established trading market for
the Pre-Funded Warrants, and we do not expect a market to develop.
In addition, we do not intend to apply for the listing of the
Pre-Funded Warrants on any national securities exchange or other
trading market. Without an active trading market, the liquidity of
the Pre-Funded Warrants will be limited.
Rights as a Stockholder. Except as otherwise provided in the
Pre-Funded Warrants or by virtue of such holder’s ownership of
shares of our Common Stock, the holder of a Pre-Funded Warrants
does not have the rights or privileges of a holder of our Common
Stock, including any voting rights, until the holder exercises the
Pre-Funded Warrant.
PRIVATE
PLACEMENT TRANSACTION
In a concurrent private placement, we plan to issue and sell to the
investors the Purchase Warrants to purchase up to an aggregate of
2,000,000 shares of Common Stock at an exercise price equal to
$1.60 per share.
The Purchase Warrants and the shares of Common Stock issuable upon
the exercise of such warrants are not being registered under the
Securities Act, are not being offered pursuant to this prospectus
supplement and the accompanying prospectus and are being offered
pursuant to the exemption provided in Section 4(a)(2) under the
Securities Act. Accordingly, investors may only sell shares of
Common Stock issued upon exercise of the Purchase Warrants pursuant
to an effective registration statement under the Securities Act
covering the resale of those shares, an exemption under Rule 144
under the Securities Act or another applicable exemption under the
Securities Act.
Exercisability. The Purchase Warrants are exercisable six
months following issuance and will have a term of two and one-half
years from the initial exercise date. The Purchase Warrants will be
exercisable, at the option of the holder, in whole or in part by
delivering to us a duly executed exercise notice and, at any time a
registration statement registering the issuance of shares of Common
Stock underlying the Purchase Warrants under the Securities Act is
effective and available for the issuance of such shares, or an
exemption from registration under the Securities Act is available
for the issuance of such shares, by payment in full in immediately
available funds for the number of Shares of Common Stock purchased
upon such exercise. If at the time of exercise there is no
effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the shares
of Common Stock underlying the Purchase Warrants, then the Purchase
Warrants may also be exercised, in whole or in part, at such time
by means of a cashless exercise, in which case the holder would
receive upon such exercise the net number of shares of Common Stock
determined according to the formula set forth in the warrant.
Exercise Limitation. A holder will not have the right to
exercise any portion of the Purchase Warrants if the holder
(together with its affiliates) would beneficially own in excess of
4.99% (or, upon election of the holder, 9.99%) of the number of our
shares of Common Stock outstanding immediately after giving effect
to the exercise, as such percentage ownership is determined in
accordance with the terms of the warrants. However, any holder may
increase or decrease such percentage, but in no event may such
percentage be increased to more than 9.99%, provided that any
increase will not be effective until the 61st day after such
election.
Exercise Price Adjustment. The exercise price of the
Purchase Warrants is subject to appropriate adjustment in the event
of certain stock dividends and distributions, stock splits, stock
combinations, reclassifications or similar events affecting our
shares of Common Stock.
Transferability. Subject to applicable laws, the Purchase
Warrants may be offered for sale, sold, transferred or assigned
without our consent.
Exchange Listing. There is no established trading market for
the Purchase Warrants, and we do not expect a market to develop. In
addition, we do not intend to apply for the listing of the Purchase
Warrants on any national securities exchange or other trading
market.
Fundamental Transactions. In the event of any fundamental
transaction, as described in the Purchase Warrants and
generally including any merger with or into another entity, sale of
all or substantially all of our assets, tender offer or exchange
offer, or reclassification of our shares of Common Stock, then upon
any subsequent exercise of a Purchase Warrant, the holder will
have the right to receive as alternative consideration, for each
share of Common Stock that would have been issuable upon such
exercise immediately prior to the occurrence of such fundamental
transaction, the number of shares of Common Stock of the successor
or acquiring corporation of our company, if it is the surviving
corporation, and any additional consideration receivable upon or as
a result of such transaction by a holder of the number of shares of
Common Stock for which the Purchase Warrant is exercisable
immediately prior to such event.
Notwithstanding the foregoing, in the event of a fundamental
transaction, we or a successor entity shall, at the holder’s
option, exercisable at any time concurrently or within thirty (30)
days following the consummation of a fundamental transaction,
purchase the Purchase Warrant by paying to the holder an amount
equal to the Black Scholes Value (as defined in each Purchase
Warrant) of the remaining unexercised portion of the Purchase
Warrant on the date of the fundamental transaction. If the
fundamental transaction is not within our control, the holders of
the Purchase Warrants will only be entitled to receive from us or a
successor entity the same type or form of consideration (and in the
same proportion), at the Black Scholes Value of the unexercised
portion of the Purchase Warrant, that is being offered and paid to
the holders of our Common Stock in connection with the fundamental
transaction, whether that consideration is in the form of cash,
stock or any combination thereof, or whether the holders of our
Common Stock are given the choice to receive alternative forms of
consideration in connection with the fundamental transaction.
Rights as a Stockholder. Except as otherwise provided in the
Purchase Warrants or by virtue of such holder’s ownership of our
Common Stock, the holder of a Purchase Warrant will not have the
rights or privileges of a holder of our Common Stock, including any
voting rights, until the holder exercises the warrant.
Resale Registration Rights. We have entered into a
securities purchase agreement directly with certain institutional
investors that have agreed to purchase our securities in this
offering. We are required within 90 days of the date of the
securities purchase agreement to file a registration statement
providing for the resale of the shares of Common Stock issued and
issuable upon the exercise of the Purchase Warrants. We are
required to use commercially reasonable efforts to cause such
registration to become effective within 180 days of the closing of
the offering and to keep such registration statement effective at
all times until no investor owns any Purchase Warrants or shares
issuable upon exercise thereof.
You should review a copy of the securities purchase agreement and a
copy of the form of the Purchase Warrant to be issued to the
investors under the securities purchase agreement, which are
executed or issued in connection with this offering and will be
filed as exhibits to a Current Report on Form 8-K that we file with
the SEC, for a complete description of the terms and conditions of
the Purchase Warrants and the related transaction agreements.
PLAN OF
DISTRIBUTION
Pursuant to an engagement letter agreement dated September 14,
2022, we have engaged H.C. Wainwright & Co., LLC, referred
to herein as Wainwright or the placement agent, to act as our
exclusive placement agent in connection with this offering. Under
the terms of the engagement letter, Wainwright is not purchasing
the securities offered by us in this offering, and is not required
to sell any specific number or dollar amount of securities, but
will assist us in this offering on a reasonable best efforts basis.
The terms of this offering were subject to market conditions and
negotiations between us, Wainwright and prospective investors.
Wainwright will have no authority to bind us by virtue of the
engagement letter. Wainwright may engage sub-agents or selected
dealers to assist with this offering. We may not sell the entire
amount of our shares of Common Stock offered pursuant to this
prospectus supplement.
The placement agent proposes to arrange for the sale of the
securities we are offering pursuant to this prospectus supplement
and accompanying prospectus to one or more institutional or
accredited investors through securities purchase agreements
directly between the purchaser and us. We will only sell to such
investors who have entered into the securities purchase agreement
with us.
Delivery of the securities offered hereby is expected to take place
on or about October 20, 2022, subject to satisfaction of customary
closing conditions.
Fees and Expenses
We have agreed to pay the placement agent a cash fee equal to
$102,750. The following table shows the per share and total cash
fees we will pay to the placement agent in connection with the sale
of our securities offered pursuant to this prospectus supplement
and the accompanying prospectus, assuming the purchase of all of
the securities offered hereby.
| |
|
Per Share
|
|
|
Per Pre-
Funded
Warrant
|
|
|
Total
|
|
|
Public offering price
|
|
$ |
1.50 |
|
|
|
1.4999 |
|
|
$ |
1,499,967.50 |
|
|
Placement agent fees (1)
|
|
$ |
0.105 |
|
|
|
0.105 |
|
|
$ |
102,750.00 |
|
|
Proceeds, before expenses, to us
|
|
$ |
1.3950 |
|
|
|
1.3949 |
|
|
$ |
1,397,217.50 |
|
|
(1)
|
As described in the engagement letter, the placement agent fee may
be reduced to 5.5% of the aggregate gross proceeds raised from the
sale of securities to certain individuals or entities.
|
We have also agreed to pay the placement agent $50,000 for fees and
expenses of legal counsel and other out-of-pocket expenses plus
clearing fees that will not exceed $15,950. We estimate the total
offering expenses of this offering that will be payable by us,
excluding the placement agent’s fees and expenses, will be
approximately $300,000.
In addition, we will issue to the placement agent, or its
designees, warrants to purchase up to 63,000 shares of Common
Stock. The Placement Agent Warrants will have an exercise price
equal to $1.875 and will be exercisable for five years from the
commencement of sales in this offering.
The securities purchase agreement that we entered into with certain
investors prohibits, with certain limited exceptions, us: (i) for
seven (7) months following the closing date from issuing any shares
of Common Stock or Common Stock Equivalents (as defined in the
securities purchase agreement) or filing any registration statement
(other than a Form S-8), and (ii) for twelve (12) months following
the closing date from issuing any shares of Common Stock or Common
Stock Equivalents in a Variable Rate Transaction (as defined in the
securities purchase agreement).
We have granted Wainwright, subject to certain exceptions, a right
of first refusal for a period of twelve (12) months following
September 14, 2022 to act as our exclusive underwriter or placement
agent for any further capital raising transactions undertaken by us
or any of our subsidiaries.
In the event that any investor whom the placement agent had
contacted during the term of its engagement or introduced to the
Company during the term of our engagement of the placement agent
provides any capital to us, in a public or private offering or
other financing or capital-raising transaction of any kind, within
the 12 months following the expiration of termination of the
engagement of the placement agent, we shall pay the placement agent
the cash compensation provided above, calculated in the same
manner.
We have agreed to indemnify the placement agent and specified other
persons against certain liabilities relating to or arising out of
the placement agent’s activities under its engagement letter,
including liabilities under the Securities Act, and to contribute
to payments that the placement agent may be required to make in
respect of such liabilities.
The placement agent may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, and any
commissions received by it and any profit realized on the sale of
our securities offered hereby by it while acting as principal might
be deemed to be underwriting discounts or commissions under the
Securities Act. The placement agent will be required to comply with
the requirements of the Securities Act and the Exchange Act,
including, without limitation, Rule 10b-5 and Regulation M under
the Exchange Act. These rules and regulations may limit the timing
of purchases and sales of our securities by the placement agent.
Under these rules and regulations, the placement agent may not (i)
engage in any stabilization activity in connection with our
securities; and (ii) bid for or purchase any of our securities or
attempt to induce any person to purchase any of our securities,
other than as permitted under the Exchange Act, until they have
completed their participation in the distribution.
From time to time, the placement agent or its affiliates may
provide in the future various advisory, investment and commercial
banking and other services to us in the ordinary course of
business, for which they have received and may continue to receive
customary fees and commissions. However, except as disclosed in
this prospectus supplement, we have no present arrangements with
the placement agent for any further services.
Transfer Agent
The Transfer Agent and Registrar for our Common Stock is American
Stock Transfer & Trust Company, LLC.
Listing
Our shares of Common Stock trade on the Nasdaq Capital Market under
the ticker symbol “RIBT.” We do not intend to apply for listing of
the Pre-Funded Warrants or the Purchase Warrants on any securities
exchange or other nationally recognized trading system.
LEGAL
MATTERS
The validity of the securities offered hereby will be passed upon
for us by Weintraub Tobin Chediak Coleman Grodin Law Corporation,
Sacramento, California. Ellenoff Grossman & Schole LLP, New
York, New York is counsel to the placement agent in connection with
this offering.
EXPERTS
The consolidated financial statements of RiceBran Technologies as
of December 31, 2021 and for the two years then ended, incorporated
in this prospectus supplement by reference from the Annual Report
on Form 10-K for the year ended December 31, 2021, have been
audited by RSM US LLP, an independent registered public accounting
firm, as stated in their report thereon, included therein, and
incorporated by reference in the prospectus and registration
statement in reliance upon such report and upon the authority of
such firm as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
This prospectus supplement is part of a registration statement on
Form S-3 which we filed with the SEC. This prospectus supplement
does not contain all of the information set forth in the
registration statement and the exhibits to the registration
statement. For further information with respect to us and the
securities we are offering under this prospectus supplement, we
refer you to the registration statement and the exhibits and
schedules filed as a part of the registration statement. Neither we
nor any agent, underwriter or dealer has authorized any person to
provide you with different information. We are not making an offer
of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus
supplement is accurate as of any date other than the date on the
front page of this prospectus supplement, regardless of the time of
delivery of this prospectus supplement or any sale of the
securities offered by this prospectus supplement.
We are subject to the information and periodic reporting
requirements of the Exchange Act and, in accordance therewith, we
file periodic reports, proxy statements and other information with
the SEC. Such periodic reports, proxy statements and other
information are available free of charge at our website,
http://www.ricebrantech.com, as soon as reasonably practicable
after such material is electronically filed with, or furnished to,
the SEC. Our website and the information contained on that site, or
connected to that site, are not incorporated into and are not a
part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to “incorporate by reference” the information
that we have filed with it, meaning we can disclose important
information to you by referring you to those documents already on
file with the SEC. The information incorporated by reference is
considered to be part of this prospectus supplement and the
accompanying base prospectus except for any information that is
superseded by other information that is included in this prospectus
supplement or the accompanying base prospectus.
This filing incorporates by reference the following documents,
which we have previously filed with the SEC pursuant to the
Exchange Act (other than Current Reports on Form 8-K, or portions
thereof, furnished under Items 2.02 or 7.01 of Form 8-K):
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Our Annual Report on Form 10-K for the fiscal year ended December
31, 2021 filed with the SEC on March 17, 2022, as amended on
May 2, 2022;
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Our Quarterly Reports on Form 10-Q for the fiscal quarter ended
March 31, 2022 and June 30, 2022 filed with the SEC on April 28, 2022 and August 11, 2022,
respectively;
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Our Current Reports on Form 8-K filed with the SEC on March 17, 2022, April 28, 2022, July 20, 2022, August 25, 2022, September 14, 2022, September 29, 2022 and October 11, 2022, respectively;
and
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The description of our Common Stock contained in our Form 8-A,
filed with the SEC on December 12, 2013, as updated by
the description of our Common Stock filed as Exhibit 4.09 to our
Annual Report on Form 10-K for the fiscal year ended December 31,
2021 filed with the SEC on March 17, 2022, including any
amendments or reports filed for the purpose of updating such
description.
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We also incorporate by reference into this prospectus supplement
all documents (other than current reports furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items) that are filed by us with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or
after the date of this prospectus supplement but prior to the
termination of this offering. These documents include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K. Any information that we
subsequently file with the SEC that is incorporated by reference as
described above will automatically update and supersede any
previous information that is part of this prospectus.
We hereby undertake to provide without charge to each person,
including any beneficial owner, to whom a copy of this prospectus
is delivered, upon written or oral request of any such person, a
copy of any and all of the information that has been or may be
incorporated by reference in this prospectus, other than exhibits
to such documents. You may request, and we will provide you with, a
copy of these filings, at no cost, by calling us at (281) 675-2421
or by writing to us at the following address:
RiceBran Technologies
25420 Kuykendahl Rd., Suite B300
Tomball, TX 77375
Attn: Corporate Secretary
Prospectus
RiceBran Technologies
$50,000,000
Common Stock
Preferred Stock
Warrants
Units
From time to time in one or more offerings, we may offer and sell
up to an aggregate amount of $50,000,000 of any combination of the
securities described in this prospectus, either individually or in
combination. We may also offer common stock upon conversion of
preferred stock, or common stock or preferred stock upon the
exercise of warrants.
We will provide the specific terms of these offerings and
securities in one or more supplements to this prospectus. We may
also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. The prospectus
supplement and any related free writing prospectus may also add,
update or change information contained in this prospectus. You
should carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as any
documents incorporated by reference or deemed to be incorporated by
reference into this prospectus, before buying any of the securities
being offered.
This prospectus may not be used to offer or sell our securities,
unless accompanied by a prospectus supplement relating to the
offered securities.
Our common stock is currently listed on the Nasdaq Capital Market
under the symbol “RIBT.” On July 14, 2022, the last reported sale
price of our common stock was $0.38 per share. The applicable
prospectus supplement will contain information, where applicable,
as to any other listing, if any, on the Nasdaq Capital Market or
other securities exchange, of the securities covered by the
applicable prospectus supplement.
These securities may be sold directly by us, through dealers or
agents designated from time to time, to or through underwriters or
dealers or through a combination of these methods on a continuous
or delayed basis. See “Plan of Distribution” in this prospectus. We
may also describe the plan of distribution for any particular
offering of our securities in a prospectus supplement. If any
underwriters or agents are involved in the sale of any securities
with respect to which this prospectus is being delivered, we will
disclose their names and the nature of our arrangements, including
applicable fees, commissions, discounts and over-allotment options,
in a prospectus supplement. The price to the public of such
securities and the net proceeds we expect to receive from such sale
will also be set forth in a prospectus supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading “Risk Factors” on page 5 of this
prospectus and any similar section contained in the applicable
prospectus supplement and in any free writing prospectuses we have
authorized for use in connection with a specific offering, and
under similar headings in the documents that are incorporated by
reference into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities, or passed upon the adequacy or accuracy of this
prospectus or any accompanying prospectus supplement. Any
representation to the contrary is a criminal offense.
The date of this prospectus is __________, 2022.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
using a “shelf” registration process. Under this shelf registration
process, we may sell any combination of the securities described in
this prospectus in one or more offerings from time to time having
an aggregate initial offering price of $50,000,000. This prospectus
provides you only with a general description of the securities we
may offer. Each time we offer securities, we will provide you with
a prospectus supplement that will contain more specific information
about the securities being offered and the terms of that offering.
We may also authorize one or more free writing prospectuses to be
provided to you that may contain material information relating to
these offerings and securities. We may also add, update or change
in the prospectus supplement any of the information contained in
this prospectus or in the documents that we have incorporated by
reference into this prospectus, including, without limitation, a
discussion of any risk factors or other special considerations that
apply to these offerings or securities or the specific plan of
distribution. If there is any inconsistency between the information
in this prospectus and a prospectus supplement or any related free
writing prospectus or information incorporated by reference having
a later date, you should rely on the information in that prospectus
supplement or any related free writing prospectus we may authorize
to be provided to you or incorporated information having a later
date. This prospectus may not be used to consummate a sale of
securities, unless it is accompanied by a prospectus
supplement.
This prospectus does not contain all the information provided in
the registration statement we filed with the SEC. You should read
this prospectus, and any accompanying prospectus supplement and any
related free writing prospectus, together with additional
information incorporated by reference as described under the
headings “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference,” before you invest in any of
the securities being offered hereby.
You should rely only on the information contained in or
incorporated by reference into this prospectus and any applicable
prospectus supplement, along with the information contained in any
free writing prospectuses that we have authorized for use in
connection with a specific offering. 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 on it. We take no responsibility for, and can provide no
assurances as to the reliability of, any information not contained
in this prospectus, any applicable prospectus supplement or any
related free writing prospectus that we may authorize to be
provided to you. No dealer, salesperson or other person is
authorized to give any information or to represent anything not
contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus. This prospectus is not an
offer to sell securities, and it is not soliciting an offer to buy
securities, in any jurisdiction where the offer or sale is not
permitted. The information appearing in this prospectus, the
applicable prospectus supplement or any related free writing
prospectus is accurate only as of the date on the front of the
document (unless the information specifically indicates that
another date applies), and any information that we have
incorporated by reference is accurate only as of the date of the
document incorporated by reference, regardless of the time of
delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or any sale of a security.
Our business, financial condition, results of operations and
prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed, or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under
“Where You Can Find More Information.” THIS PROSPECTUS MAY NOT BE
USED TO CONSUMMATE A SALE OF SECURITIES, UNLESS IT IS ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
Unless otherwise stated or the context requires otherwise,
references in this prospectus to “RiceBran Technologies,” the
“company,” or the “Company,” “we,” “us,” or “our” refer to RiceBran
Technologies and our subsidiaries, taken together. The RiceBran
Technologies logo and other trademarks or service marks of the
Company appearing in this prospectus are the property of RiceBran
Technologies. All other brand names or trademarks appearing in this
prospectus are the property of their respective owners.
ABOUT RICEBRAN TECHNOLOGIES
We are a specialty ingredient company that utilizes proprietary
stabilization and separation technologies, supported by specialty
milling processes, to deliver critical nutritional and functional
ingredients derived from rice and other small and ancient grains
for the food, nutraceutical, companion animal and equine feed
categories. We are focused on milling rice and other small and
ancient grains and producing, processing, and marketing value-added
healthy, natural and nutrient dense products derived from these
grains. Notably, we are a market leader in North America in
converting raw rice bran into stabilized rice bran (SRB) and high
value SRB derivative products, including:
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RiBalance, a complete rice bran nutritional package derived from
further processing SRB;
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RiSolubles, a highly nutritious, carbohydrate and lipid rich
fraction of RiBalance;
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RiFiber, a protein and fiber rich insoluble derivative of
RiBalance; and
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our family of ProRyza products, which includes derivatives composed
of protein and protein/fiber blends.
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Our existing and target customers are food and animal nutrition
manufacturers, wholesalers and retailers, both domestically and
internationally.
We incorporated under the laws of the state of California in 2000,
and our principal executive offices are located at 25420 Kuykendahl
Rd., Suite B300, Tomball, TX 77375. Our telephone number is (281)
675-2421. Our website is located at www.ricebrantech.com.
Information contained on, or that can be accessed through, our
website is not part of this prospectus.
DESCRIPTION OF SECURITIES WE MAY
OFFER
We may offer shares of our common stock, shares of our preferred
stock, warrants to purchase common stock or preferred stock or
units to purchase shares of common stock, preferred stock, warrants
or a combination of these securities, with a total value up to
$50,000,000 from time to time under this prospectus at prices and
on terms to be determined by market conditions at the time of
offering. This prospectus provides you with a general description
of the securities we may offer. See “Description of Capital Stock,”
“Description of Warrants,” and “Description of Units” below. Each
time we offer a type or series of securities, we will provide a
prospectus supplement that will describe the specific amounts,
prices and other important terms of the securities, including, to
the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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rates and times of payment of dividends, if any;
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redemption, conversion or sinking fund terms, if any;
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voting or other rights, if any;
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conversion prices, if any; and
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important federal income tax considerations.
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The prospectus supplement and any related free writing prospectus
also may supplement, or, as applicable, add, update or change
information contained in this prospectus or in documents we have
incorporated by reference. However, no prospectus supplement or
free writing prospectus will offer a security that is not
registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this
prospectus is a part.
The terms of any particular offering, the initial offering price
and the net proceeds to us will be contained in the prospectus
supplement, information incorporated by reference or free writing
prospectus relating to such offering.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Some of the statements in this prospectus and in any prospectus
supplement we may file constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as
amended (the “Securities Act”) and Section 21E of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). These
statements relate to future events concerning our business and to
our future revenues, operating results and financial condition. In
some cases, you can identify forward-looking statements by
terminology such as “may,” “will,” “could,” “would,” “should,”
“expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,”
“forecast,” “predict,” “propose,” “potential” or “continue,” or the
negative of those terms or other comparable terminology.
Any forward-looking statements contained in this prospectus or any
prospectus supplement are only estimates or predictions of future
events based on information currently available to our management
and management’s current beliefs about the potential outcome of
future events. Whether these future events will occur as management
anticipates, whether we will achieve our business objectives, and
whether our revenues, operating results or financial condition will
improve in future periods are subject to numerous risks. There are
a number of important factors that could cause actual results to
differ materially from the results anticipated by these
forward-looking statements. These important factors include those
that we discuss under the heading “Risk Factors” and in other
sections of our Annual Report on Form 10-K for the year ended
December 31, 2021, as filed with the Securities and Exchange
Commission (the “SEC”) on March 17, 2022, as well as in our other
reports filed from time to time with the SEC that are incorporated
by reference into this prospectus. You should read these factors
and the other cautionary statements made in this prospectus and in
the documents we incorporate by reference into this prospectus as
being applicable to all related forward-looking statements wherever
they appear in this prospectus or the documents we incorporate by
reference into this prospectus. If one or more of these factors
materialize, or if any underlying assumptions prove incorrect, our
actual results, performance or achievements may vary materially
from any future results, performance or achievements expressed or
implied by these forward-looking statements. We undertake no
obligation to publicly update any forward-looking statements,
whether as a result of new information, future events or otherwise,
except as required by law.
RISK
FACTORS
Any investment in our common stock or other securities involves a
high degree of risk. Investors should carefully consider the risks
and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related
free writing prospectus, and discussed in the documents
incorporated or deemed to be incorporated by reference herein,
including the risks and uncertainties discussed under “Risk
Factors” in our most recent Annual Report on Form 10-K, filed on
March 17, 2022, and in subsequent filings that are incorporated
herein by reference, together with the other information contained
in this prospectus, before deciding whether to purchase the
securities offered hereby. Our business, financial condition,
results of operations and prospects could be materially and
adversely affected by these risks if any of them actually occur.
The risks and uncertainties described in these documents are not
the only ones we face. Additional risks not currently known to us
or other factors not perceived by us to present significant risks
to our business at this time also could adversely affect our
business, operating results and financial condition, as well as
adversely affect the value of an investment in our securities. This
prospectus also contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially
from those anticipated in these forward-looking statements as a
result of certain factors, including the risks described elsewhere
in this prospectus and in the documents incorporated or deemed to
be incorporated by reference herein. For more information, see the
section entitled “Where You Can Find More Information.”
USE OF
PROCEEDS
Except as otherwise provided in the applicable prospectus
supplement or in any free writing prospectuses, we intend to use
the net proceeds from the sale of the securities offered by this
prospectus and from the exercise of any warrants issued pursuant
hereto, for general corporate purposes, including capital
expenditures related to our growth. We may also use a portion of
the net proceeds to acquire or invest in businesses whom, from time
to time, we engage and explore the possibility of strategic
partnering or investment.
The intended application of proceeds from the sale of any
particular offering of securities using this prospectus will be
described in the accompanying prospectus supplement relating to
such offering. The precise amount and timing of the application of
these proceeds will depend upon a number of factors, such as
funding requirements, timing and progress of research, development
and commercialization efforts, and the availability and costs of
other funds. We may temporarily invest the net proceeds in
investment-grade, interest-bearing securities until they are used
for their stated purpose. We have not determined the amount of net
proceeds to be used specifically for such purposes. As a result,
management will retain broad discretion over the use of net
proceeds from the sale of securities offered hereby.
DESCRIPTION OF CAPITAL STOCK
General
The following description of common stock and preferred stock,
together with the additional information we include in any
applicable prospectus supplements or related free writing
prospectuses, summarizes the material terms and provisions of the
common stock and preferred stock that we may offer under this
prospectus but is not complete. For the complete terms of our
common stock and preferred stock, please refer to our articles of
incorporation, as the same may be amended from time to time, any
certificates of determination for our preferred stock, and our
bylaws, as amended from time to time. For directions on obtaining
these documents, please refer to “Where You Can Find More
Information” in this prospectus. The California General Corporation
Law, or CGCL, may also affect the terms of these securities. While
the terms we have summarized below will apply generally to any
future common stock, preferred stock or warrants that we may offer,
we will describe the particular terms of any series of these
securities in more detail in the applicable prospectus supplement.
If we so indicate in a prospectus supplement, the terms of any
securities we offer under that prospectus supplement may differ
from the terms we describe below.
As of the date of this prospectus, our authorized capital stock
consisted of 150,000,000 shares of common stock, no par value per
share, and 20,000,000 shares of preferred stock, no par value per
share, of which 3,000,000 shares are designated Series A Preferred
Stock, 25,000 shares are designated Series B Preferred Stock,
25,000 shares are designated Series C Preferred Stock, 10,000
shares are designated Series D Preferred Stock, 2,743 shares are
designated Series E Preferred Stock, 3,000 are designated as Series
F Preferred Stock and 3,000 are designated as Series G Convertible
Preferred Stock. Our board of directors (the “Board”) may establish
the rights and preferences of the preferred stock from time to
time. As of July 14, 2022, there were approximately 52,310,304
shares of our common stock outstanding and 150 shares of our Series
G Convertible Preferred Stock outstanding. Our Series G Convertible
Preferred Stock will not be offered under this prospectus.
As of July 14, 2022, we had outstanding options to acquire 589,709
shares of our common stock with a weighted average exercise price
of $1.94 per share. In addition, as of July 14, 2022 there were
warrants outstanding for the purchase of an aggregate of 2,607,693
shares of common stock with a weighted average exercise price of
$1.02 per share.
As of July 14, 2022, we have outstanding restricted stock units
(“RSUs”) covering a total of 5,317,337 shares of our common
stock. The shares subject to the RSUs vest immediately, or over
periods of up to five years from the grant date.
Common Stock
We may issue shares of our common stock from time to time. Subject
to any preferential dividend rights granted to holders of any
shares of preferred stock that may be outstanding, the holders of
common stock are entitled to receive ratably dividends when, as,
and if declared by our Board out of funds legally available
therefor. Upon our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of common stock are entitled
to share ratably the net assets available after the payment of all
debts and other liabilities and subject to the prior rights of any
outstanding shares of preferred stock. The common stock has no
preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the
common stock. All outstanding shares of common stock are fully paid
and nonassessable, and the shares of common stock to be issued upon
the closing of this offering will be fully paid and
nonassessable.
The holders of our common stock are entitled to one vote for each
share held on all matters submitted to a vote of our shareholders.
Pursuant to our Bylaws, shareholders do not have the right to vote
cumulatively. Holders of our common stock have no preemptive,
subscription, or redemption rights. The outstanding shares of our
common stock are fully paid and nonassessable. The rights and
privileges of holders of our common stock are subject to, and may
be adversely affected by, the rights of holders of shares of
preferred stock that we may designate and issue in the future. Our
common stock is currently listed on The Nasdaq Stock Market LLC
under the symbol “RIBT.”
Preferred Stock
Our articles of incorporation provide that the Board is authorized,
without further action by the shareholders (unless such shareholder
action is required by applicable law or the rules of any stock
exchange or market on which our securities are then traded), to
provide for the issuance of shares of preferred stock in one or
more series and, by filing a certificate of determination pursuant
to the applicable law of the State of California, to establish from
time to time for each such series the number of shares to be
included in each such series and to fix the designations, powers,
rights and preferences of the shares of each such series, and the
qualifications, limitations and restrictions thereof, which may
include, among others, dividend rights, voting rights, liquidation
preferences, conversion rights, preemptive rights, and the number
of shares constituting any series or the designation of any series,
any or all of which may be greater than the rights of the common
stock. Any convertible preferred stock we may issue will be
convertible into our common stock or our other securities.
Conversion may be mandatory or at the holder’s option and would be
at prescribed conversion rates. We will describe in the applicable
prospectus supplement the terms of the series of preferred stock
being offered, including, to the extent applicable:
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the designation of the series, which may be by distinguishing
number, letter or title;
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the number of shares of the series, which number the Board may
thereafter (except where otherwise provided in the certificate of
determination) increase or decrease (but not below the number of
shares thereof then outstanding);
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whether dividends, if any, shall be paid, and, if paid, the date or
dates upon which, or other times at which, such dividends shall be
payable, whether such dividends shall be cumulative or
noncumulative, the rate of such dividends (which may be variable)
and the relative preference in payment of dividends of such
series;
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whether shares of such series shall be redeemable, the time or
times when, and the price or prices at which, shares of such series
shall be redeemable, the redemption price and the terms and
conditions of redemption;
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the terms and amounts of any sinking fund or similar fund provided
for the purchase or redemption of shares of the series;
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the amounts payable on shares of such series and the rights of
holders of such shares in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of our
corporation;
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whether the shares of the series shall be convertible into shares
of any other class or series, or convertible into or exchangeable
for any other security, of our corporation or any other
corporation, and, if so, the specification of such other class or
series of such other security, the conversion or exchange price or
prices, or rate or rates, any adjustments thereto, the date or
dates on which such shares shall be convertible or exchangeable and
other terms and conditions upon which such conversion may be
made;
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the preemptive or preferential rights, if any, of the holders of
shares of such series to subscribe for, purchase, receive, or
otherwise acquire any part of any new or additional issue of stock
of any class, whether now or hereafter authorized, or of any bonds,
debentures, notes, or any of other securities, whether or not
convertible into shares of common stock;
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if applicable, material U.S. federal income tax considerations
applicable to the preferred stock;
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restrictions on the issuance of shares of the same series or of any
other class or series; and
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the voting rights, if any, and whether full or limited, of the
holders of shares of the series, which may include no voting
rights, one vote per share, or such higher or lower number of votes
per share as may be designated by the Board.
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Preferred stock may be issued in the future in connection with
acquisitions, financings, or other matters as the Board deems
appropriate. In the event that any shares of preferred stock are to
be issued, a certificate of determination containing the rights,
privileges and limitations of such series of preferred stock may be
filed with the Secretary of State of California. The effect of such
preferred stock is that, subject to federal securities laws and
California law, the Board alone may be able to authorize the
issuance of preferred stock, which could have the effect of
delaying, deferring or preventing a change in control of us without
further action by the shareholders, and may adversely affect the
other rights of the holders of our common stock. The issuance of
preferred stock with voting and conversion rights may also
adversely affect the voting power of holders of our common stock,
including the loss of voting control to others. Other than the
Series G Convertible Preferred Stock, we do not have any other
shares of our preferred stock presently outstanding.
The issuance of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other
corporate purposes, could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third
party from acquiring, a majority of our outstanding voting stock.
The effects of issuing preferred stock could include one or more of
the following:
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decreasing the amount of earnings and assets available for
distribution to holders of common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; or
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delaying, deferring or preventing changes in our control or
management.
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Anti-Takeover Effects of Certain Provisions of our Articles of
Incorporation, Bylaws and the CGCL
Our articles of incorporation and our bylaws contain certain
provisions that could have the effect of delaying, deterring or
preventing another party from acquiring control of us. These
provisions and certain provisions of California law, which are
summarized below, are expected to discourage coercive takeover
practices and inadequate takeover bids. These provisions are also
designed, in part, to encourage persons seeking to acquire control
of us to negotiate first with our Board. We believe that the
benefits of increased protection of our potential ability to
negotiate more favorable terms with an unfriendly or unsolicited
acquirer outweigh the disadvantages of discouraging a proposal to
acquire us.
Undesignated Preferred Stock
As discussed above, our Board will have the ability to issue
preferred stock with voting or other rights or preferences that
could impede the success of any attempt to change control of us.
These and other provisions may have the effect of deterring hostile
takeovers or delaying changes in control or management of our
company.
Shareholder Meetings.
Our bylaws provide that a special meeting of shareholders may be
called only by the President or by the Board or the Chairman of the
Board or by one or more shareholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at that
meeting.
Requirements for Advance Notification of Shareholder
Nominations and Proposals.
Our Bylaws provide advance notice procedures for shareholders
seeking to bring business before our annual meeting of shareholders
or to nominate candidates for election as directors at our annual
meeting of shareholders and specify certain requirements regarding
the form and content of a shareholders’ notice. These provisions
might preclude our shareholders from bringing matters before our
annual meeting of shareholders or from making nominations for
directors at our annual meeting of shareholders if the proper
procedures are not followed.
Board of Directors Vacancies.
Under our bylaws, any vacancy on the Board, including a vacancy
resulting from an enlargement of the Board, may only be filled by
vote of a majority of the remaining directors. The limitations on
the removal of directors and filling of vacancies would have the
effect of making it more difficult for a third party to acquire
control of us, or of discouraging a third party from acquiring
control of us.
Board of Directors Size.
Our bylaws provide that the number of directors shall not be less
than five (5) nor more than nine (9) and is currently
five (5), and further provide that the Board may increase or
decrease the size of the Board within these limits by an
affirmative vote of two-thirds of the directors then in office or
by shareholders, which may enable an incumbent board to maintain
control by adding directors.
Indemnification.
Our articles of incorporation and our bylaws provide that we will
indemnify officers and directors against losses as they incur in
investigations and legal proceedings resulting from their services
to us, which may include service in connection with takeover
defense measures.
No Cumulative Voting
Our bylaws do not permit cumulative voting in the election of
directors while we continue to be a “listed corporation” as defined
in Section 301.5(d) of the California General Corporation Law.
Cumulative voting allows a shareholder to vote a portion or all of
its shares for one or more candidates for seats on the board of
directors. Without cumulative voting, a minority shareholder may
not be able to gain as many seats on our Board as the shareholder
would be able to gain if cumulative voting were permitted. The
absence of cumulative voting makes it more difficult for a minority
shareholder to gain a seat on our Board to influence our Board’s
decision regarding a takeover.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is American
Stock Transfer & Trust Company, LLC. The transfer agent for any
series of preferred stock that we may offer under this prospectus
will be named and described in the prospectus supplement related to
that series.
DESCRIPTION OF WARRANTS
The following description, together with the additional information
we may include in any applicable prospectus supplements, summarizes
the material terms and provisions of the warrants that we may offer
under this prospectus and the related warrant agreements and
warrant certificates. While the terms summarized below will apply
generally to any warrants that we may offer, we will describe the
particular terms of any series of warrants in more detail in the
applicable prospectus supplement, information incorporated by
reference or a free writing prospectus. If we so indicate in the
prospectus supplement, information incorporated by reference or
free writing prospectus, the terms of any warrants offered under
that prospectus supplement, information incorporated by reference
and free writing prospectus may differ from the terms described
below. If there are differences between that prospectus supplement,
information incorporated by reference or free writing prospectus
and this prospectus, such prospectus supplement, information
incorporated by reference or free writing prospectus will control.
Thus, the statements we make in this section may not apply to a
particular series of warrants. Specific warrant agreements will
contain additional important terms and provisions and will be
incorporated by reference as an exhibit to the registration
statement which includes this prospectus. The following
description, and any description of the warrants included in a
prospectus supplement, may not be complete and is subject to and
qualified in its entirety by reference to the terms and provisions
of the applicable warrant agreement, which we will file with the
SEC in connection with any offering of warrants.
We may issue warrants for the purchase of common stock, preferred
stock, or units, in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or
units, and the warrants may be attached to or separate from these
securities.
We will evidence each series of warrants by warrant certificates
that we may issue under a separate agreement. We may enter into the
warrant agreement with a warrant agent which may be a bank or other
institution that we select. We may also choose to act as our own
warrant agent. We will indicate the name and address of any such
warrant agent in the applicable prospectus supplement relating to a
particular series of warrants.
We will describe in the applicable prospectus supplement,
information incorporated by reference or free writing prospectus
the terms of the series of warrants, including:
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the title of the warrants;
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such
security;
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if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
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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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in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock, as
the case may be, purchasable upon the exercise of one warrant and
the price at which these shares may be purchased upon such
exercise;
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the warrant agreement under which the warrants will be issued;
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the effect of any merger, consolidation, sale or other disposition
of our business on the warrant agreement and the warrants;
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anti-dilution provisions of the warrants, if any;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price
or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence
and expire or, if the warrants are not continuously exercisable
during that period, the specific date or dates on which the
warrants will be exercisable;
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the manner in which the warrant agreement and warrants may be
modified;
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the identities of the warrant agent and any calculation or other
agent for the warrants;
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a discussion of any material or special U.S. federal income tax
consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the
warrants;
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information with respect to book-entry procedures, if any;
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any securities exchange or quotation system on which the warrants
or any securities deliverable upon exercise of the warrants may be
listed; and
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any other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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Unless otherwise described in an applicable prospectus supplement,
information incorporated by reference or free writing prospectus,
before exercising their warrants, holders of warrants will not have
any of the rights of holders of the securities purchasable upon
such exercise, including, in the case of warrants to purchase
common stock or preferred stock, the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up,
or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement,
information incorporated by reference or free writing prospectus,
at the exercise price that we describe therein. Unless we otherwise
specify in the applicable prospectus supplement, information
incorporated by reference or free writing prospectus, holders of
the warrants may exercise the warrants at any time up to the close
of business on the expiration date that we set forth in the
applicable prospectus supplement, information incorporated by
reference or free writing prospectus. After the close of business
on the expiration date, unexercised warrants will become void.
A warrant will entitle the holder to purchase for cash an amount of
securities at an exercise price that will be stated in, or that
will be determinable as described in, the applicable prospectus
supplement, information incorporated by reference or free writing
prospectus. Warrants may be exercised, redeemed, as set forth in
the applicable offering material.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, information incorporated by
reference or free writing prospectus, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, information incorporated by reference or free writing
prospectus, holders of the warrants may surrender securities as all
or part of the exercise price for warrants.
Warrant Agreement
We may issue the warrants in one or more series under one or more
warrant agreements, each to be entered into between us and a
warrant agent, which may include a bank, trust company or other
financial institution as warrant agent. We may add, replace or
terminate warrant agents from time to time. We may also choose to
act as our own warrant agent or may choose one of our subsidiaries
to do so.
The warrant agent under a warrant agreement will act solely as our
agent in connection with the warrants issued under that agreement,
and will not assume any obligation or relationship of agency or
trust with any holder of any warrant. Unless otherwise provided in
the applicable warrant or warrant agreement, any holder of warrants
may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action, on its
own behalf, its right to exercise those warrants in accordance with
their terms.
Form, Exchange and Transfer
We may issue the warrants in registered form or bearer form.
Warrants issued in registered form, i.e., book-entry form, will be
represented by a global security registered in the name of a
depository, which will be the holder of all the warrants
represented by the global security. Those investors who own
beneficial interests in a global warrant will do so through
participants in the depository’s system, and the rights of these
indirect owners will be governed solely by the applicable
procedures of the depository and its participants. In addition, we
may issue warrants in non-global form, i.e., bearer form. If any
warrants are issued in non-global form, warrant certificates may be
exchanged for new warrant certificates of different denominations,
and holders may exchange, transfer or exercise their warrants at
the warrant agent’s office or any other office indicated in the
applicable prospectus supplement, information incorporated by
reference or free writing prospectus.
No warrant agreement will be qualified as an indenture, and no
warrant agent will be required to qualify as a trustee, under the
Trust Indenture Act of 1939. Therefore, holders of warrants issued
under a warrant agreement will not have the protection of the Trust
Indenture Act with respect to their warrants.
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.
The unit agreement under which a unit is issued 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 following description is a summary of selected provisions
relating to units that we may offer. The summary is not complete.
When units are offered in the future, a prospectus supplement,
information incorporated by reference or a free writing prospectus,
as applicable, will explain the particular terms of those
securities and the extent to which these general provisions may
apply. The specific terms of the units as described in a prospectus
supplement, information incorporated by reference, or free writing
prospectus will supplement and, if applicable, may modify or
replace the general terms described in this section.
This summary and any description of units in the applicable
prospectus supplement, information incorporated by reference or
free writing prospectus is subject to and is qualified in its
entirety by reference to the unit agreement, collateral
arrangements and depositary arrangements, if applicable. We will
file each of these documents, as applicable, with the SEC and
incorporate them by reference as an exhibit to the registration
statement of which this prospectus is a part on or before the time
we issue a series of units. See “Where You Can Find More
Information” and “Incorporation of Documents by Reference” above
for information on how to obtain a copy of a document when it is
filed.
The applicable prospectus supplement, information incorporated by
reference or free writing prospectus will 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 unit agreement under which the units will be issued;
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any provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units;
and
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whether the units will be issued in fully registered or global
form.
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The applicable provisions described in this section, as well as
those described under “Description of Capital Stock” and
“Description of Warrants” above, will apply to each unit and to
each security included in each unit, respectively.
PLAN OF
DISTRIBUTION
We may sell the securities being offered pursuant to this
prospectus to or through underwriters or dealers, through agents,
or directly to one or more purchasers (including our affiliates and
shareholders), through a specific bidding or auction process, a
rights offering or otherwise, through a combination of these
methods or through any other methods described in a prospectus
supplement. The applicable prospectus supplement will describe the
terms of the offering of the securities, including, to the extent
applicable:
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the name or names of any underwriters, if any, and if required, any
dealers or agents;
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the purchase price of the securities or other consideration
therefor, and the proceeds we will receive from the sale;
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any over-allotment option under which the underwriter may purchase
additional securities from us;
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any underwriting discounts, concessions, commissions and other
items constituting underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to
dealers;
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the nature of the underwriter’s or agent’s obligations, if any, to
take the securities; and
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any securities exchange or market on which the securities may be
listed.
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The distribution of securities may be effected, from time to time,
in one or more transactions, including:
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block transactions (which may involve crosses) and transactions on
the Nasdaq Capital Market or any other organized market where the
securities may be traded;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its own account pursuant to a prospectus
supplement;
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ordinary brokerage transactions and transactions in which a
broker-dealer solicits purchasers;
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sales “at the market” to or through a market maker or into an
existing trading market, on an exchange or otherwise; and
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sales in other ways not involving market makers or established
trading markets, including direct sales to purchasers.
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The securities may be sold at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at
prices relating to the prevailing market prices, or at negotiated
prices. The consideration may be cash or another form negotiated by
the parties.
We may also make direct sales through subscription rights
distributed to our existing shareholders on a pro rata basis, which
may or may not be transferable. In any distribution of subscription
rights to our shareholders, if all of the underlying securities are
not subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to
sell the unsubscribed securities to third parties.
Some or all of the securities that we offer through this prospectus
may be new issues of securities with no established trading market.
Any underwriters to whom we sell our securities for public offering
and sale may make a market in those securities, but they will not
be obligated to do so and they may discontinue any market making at
any time without notice. Accordingly, we cannot assure you of the
liquidity of, or continued trading markets for, any securities that
we offer.
Only underwriters named in the prospectus supplement are
underwriters of the securities offered by the prospectus
supplement.
If underwriters are used in an offering, we will execute an
underwriting agreement with such underwriters and will specify the
name of each underwriter and the terms of the transaction
(including any underwriting discounts and other terms constituting
compensation of the underwriters and any dealers) in a prospectus
supplement. The securities may be offered to the public either
through underwriting syndicates represented by managing
underwriters or directly by one or more investment banking firms or
others, as designated. If an underwriting syndicate is used, the
managing underwriter(s) will be specified on the cover of the
prospectus supplement. If underwriters are used in the sale, the
offered securities will be acquired by the underwriters for their
own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale,
or under delayed delivery contracts or other contractual
commitments. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed
from time to time. We may use underwriters with whom we have a
material relationship. We will describe in the prospectus
supplement, naming the underwriter, the nature of any such
relationship. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase the
offered securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all of the offered
securities if any are purchased.
We may grant to the underwriters options to purchase additional
securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as
may be set forth in a related prospectus supplement. The terms of
any over-allotment option will be set forth in the prospectus
supplement for those securities.
If we use a dealer in the sale of the securities being offered
pursuant to this prospectus or any prospectus supplement, we or an
underwriter will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale. To the
extent required, we will set forth in the prospectus supplement,
document incorporated by reference or free writing prospectus, as
applicable, the name of the dealer and the terms of the
transactions.
We may directly solicit offers to purchase the securities and may
make sales of securities directly to institutional investors or
others. These persons may be deemed to be underwriters with respect
to any resale of the securities. To the extent required, the
prospectus supplement, document incorporated by reference or free
writing prospectus, as applicable, will describe the terms of any
such sales, including the terms of any bidding or auction process,
if used.
We may sell the securities directly or through agents we designate
from time to time. We will name any agent involved in the offering
and sale of securities and we will describe any commissions we will
pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, any agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus supplement.
In connection with the sale of the securities, underwriters,
dealers or agents may receive compensation from us or from
purchasers of the securities for whom they act as agents in the
form of discounts, concessions, commissions or other payments.
Underwriters may sell the securities to or through dealers, and
those dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or commissions
from the purchasers for whom they may act as agents. Underwriters,
dealers and agents that participate in the distribution of the
securities, and any institutional investors or others that purchase
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. If such persons were deemed to be underwriters,
they may be subject to statutory liabilities under the Securities
Act.
We may provide agents and underwriters with indemnification against
particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the
agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform
services for, us in the ordinary course of business. In addition,
the agents’ and underwriters’ commissions, discounts or concessions
may qualify as underwriters’ compensation under the Securities Act
and the rules of the Financial Industry Regulatory Authority, Inc.,
or FINRA.
In addition, we may enter into derivative transactions with third
parties (including the writing of options), or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in
connection with such a transaction, the third parties may, pursuant
to this prospectus and the applicable prospectus supplement, sell
securities covered by this prospectus and the applicable prospectus
supplement. If so, the third party may use securities 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 the 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. The third party in such sale
transactions will be an underwriter and will be identified in the
applicable prospectus supplement or in a post-effective
amendment.
To facilitate an offering of a series of securities, persons
participating in the offering may engage in transactions that
stabilize, maintain, or otherwise affect the market price of the
securities. This may include over-allotments or short sales of the
securities, which involves the sale by persons participating in the
offering of more securities than have been sold to them by us. In
those circumstances, such persons would cover such over-allotments
or short positions by purchasing in the open market or by
exercising the over-allotment option granted to those persons. In
addition, those persons may stabilize or maintain the price of the
securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions
allowed to underwriters or dealers participating in any such
offering may be reclaimed if securities sold by them are
repurchased in connection with stabilization transactions. 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. Such transactions, if
commenced, may be discontinued at any time. We make no
representation or prediction as to the direction or magnitude of
any effect that the transactions described above, if implemented,
may have on the price of our securities.
Any common stock sold pursuant to a prospectus supplement will be
eligible for quotation and trading on the Nasdaq Capital Market.
Any underwriters to whom securities are sold by us for public
offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any
market making at any time without notice. Any person participating
in the distribution of common stock registered under the
registration statement that includes this prospectus will be
subject to applicable provisions of the Securities Exchange Act of
1934, as amended, or the Exchange Act, and the applicable SEC rules
and regulations, including, among others, Regulation M, which may
limit the timing of purchases and sales of any of our common stock
by any such person. Furthermore, Regulation M may restrict the
ability of any person engaged in the distribution of our common
stock to engage in market-making activities with respect to our
common stock. These restrictions may affect the marketability of
our common stock and the ability of any person or entity to engage
in market-making activities with respect to our common stock. Any
underwriters or agents that are qualified market makers on the
Nasdaq Capital Market may engage in passive market making
transactions in the common stock on the Nasdaq Capital Market in
accordance with Regulation M under the Exchange Act, during the
business day prior to the pricing of the offering, before the
commencement of offers or sales of the common stock. Passive market
makers must comply with applicable volume and price limitations and
must be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize
the market price of the securities at a level above that which
might otherwise prevail in the open market and, if commenced, may
be discontinued at any time.
In order to comply with the securities laws of some states, if
applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers
or dealers. In addition, in some states 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 complied with.
If more than 10% of the net proceeds of any offering of securities
made under this prospectus will be received by FINRA members
participating in the offering or affiliates or associated persons
of such FINRA members, the offering will be conducted in accordance
with FINRA Conduct Rule 5110(h).
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution.
LEGAL
MATTERS
Certain legal matters in connection with the offering of securities
covered by this prospectus will be passed upon for us by Vinson
& Elkins L.L.P. and, with respect to certain matters of
California law, Weintraub Tobin Chediak Coleman Grodin Law
Corporation.
EXPERTS
The consolidated financial statements of RiceBran Technologies as
of December 31, 2021 and 2020 and for each of the two years in the
period ended December 31, 2021, incorporated in this prospectus by
reference from the RiceBran Technologies Annual Report on Form 10-K
for the year ended December 31, 2021, have been audited by RSM US
LLP, an independent registered public accounting firm, as stated in
their report thereon, incorporated herein by reference and have
been incorporated in this prospectus and registration statement in
reliance upon such report and upon the authority of such firm as
experts in accounting and auditing.
WHERE YOU CAN
FIND MORE INFORMATION
We filed a registration statement on Form S-3 with the SEC under
the Securities Act, with respect to the securities covered by this
prospectus. This prospectus, which is a part of the registration
statement, does not contain all of the information set forth in the
registration statement or the exhibits and schedules filed
therewith. For further information with respect to us and the
securities covered by this prospectus, please see the registration
statement and the exhibits filed with the registration statement.
The SEC maintains a website at http://www.sec.gov that
contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
SEC.
We are subject to the information and periodic reporting
requirements of the Exchange Act and, in accordance therewith, we
file periodic reports, proxy statements and other information with
the SEC. Such periodic reports, proxy statements and other
information are available for inspection and copying at the Public
Reference Room and website of the SEC referred to above. We
maintain a website at http://www.ricebrantech.com. You may
access our Annual Report on Form 10-K, Quarterly Reports on Form
10-Q, Current Reports on Form 8-K and amendments to those reports
filed pursuant to Sections 13(a) or 15(d) of the Exchange Act with
the SEC free of charge at our website as soon as reasonably
practicable after such material is electronically filed with, or
furnished to, the SEC. Our website and the information contained on
that site, or connected to that site, are not incorporated into and
are not a part of this prospectus.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
Except as noted below, no expert or counsel named in this
prospectus as having prepared or certified any part of this
prospectus or having given an opinion upon the validity of the
securities being registered or upon other legal matters in
connection with the registration or offering of the securities was
employed on a contingency basis, or had, or is to receive, in
connection with the offering, a substantial interest, direct or
indirect, in the registrant or any of its parents or subsidiaries.
Nor was any such person connected with the registrant or any of its
parents or subsidiaries as a promoter, managing or principal
underwriter, voting trustee, director, officer, or employee.
Weintraub Tobin Chediak Coleman Grodin Law Corporation and
Weintraub Partners, a general partnership formed by certain
shareholders at Weintraub Tobin Chediak Coleman Grodin Law
Corporation, together owns 108,896 shares of our common stock.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We have filed a registration statement on Form S-3 with the SEC
under the Securities Act. This prospectus is part of the
registration statement but the registration statement includes and
incorporates by reference additional information and exhibits. The
SEC permits us to “incorporate by reference” the information
contained in documents we file with the SEC, which means that we
can disclose important information to you by referring you to those
documents rather than by including them in this prospectus.
Information that is incorporated by reference is considered to be
part of this prospectus and you should read it with the same care
that you read this prospectus. Information that we file later with
the SEC will automatically update and supersede the information
that is either contained, or incorporated by reference, in this
prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the
SEC, and incorporate by reference in this prospectus:
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Our Annual Report on Form 10-K for the year ended
December 31, 2021, filed with the SEC on March 17, 2022; and
Form 10-K/A filed with the SEC on
May 2, 2022;
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Our Quarterly Report on Form 10-Q filed with the SEC on
April 28, 2022;
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Our Current Reports on Form 8-K (other than information furnished
rather than filed) filed with the SEC on March 17, 2022 and April 28, 2022;
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Definitive proxy statement in connection with our annual meeting of
shareholders filed on May 26, 2022; and
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The description of our common stock contained in our Form 8-A filed with the SEC on
December 12, 2013.
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All documents that we file with the Securities and Exchange
Commission under the terms of Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act (1) on or after the date of initial filing of the
registration statement of which this prospectus is a part and prior
to the effectiveness of the registration statement, and (2) on or
after the date of this prospectus until the earlier of the date on
which all of the securities registered hereunder have been sold or
the registration statement of which this prospectus is a part has
been withdrawn shall be deemed incorporated by reference in this
prospectus and to be in part of this prospectus from the date of
filing of those documents. We are not, however, incorporating, in
each case, any documents or information that we are deemed to
furnish and not file in accordance with Securities and Exchange
Commission rules, including, without limitation, any information
filed under items 2.02 or 7.01 of Form 8-K, unless such Form 8-K
expressly provides to the contrary.
You may request, and we will provide you with, a copy of these
filings, at no cost, by calling us at (281) 675-2421 or by writing
to us at the following address:
RiceBran Technologies
25420 Kuykendahl Rd., Suite B300
Tomball, 77375
Attn: Corporate Secretary
675,000 Shares of Common Stock
Pre-Funded Warrants to Purchase up to 325,000 Shares of Common
Stock
Up to 325,000 Shares of Common Stock Underlying the Pre-Funded
Warrants
PROSPECTUS SUPPLEMENT
H.C. Wainwright & Co.
OCTOBER 18, 2022
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