Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-230492
PROSPECTUS
SUPPLEMENT
(To
Prospectus Dated April 5, 2019)
Up
to $912,000
Common
Stock
On
September 12, 2019, SINTX Technologies, Inc. entered into an amendment to that certain Equity Distribution Agreement with
Maxim Group LLC, or Maxim, relating to the sale of our common stock, par value $0.01 per share, offered by this prospectus supplement.
Under the amendment, we increased the maximum aggregate offering price of the shares of our common stock that we may issue and
sell from time to time under the Equity Distribution Agreement, as amended (which we refer to herein as the Equity Distribution
Agreement), from $1.6 million to $2.5 million (we previously sold approximately $1.5 million under the Equity
Distribution Agreement). This prospectus supplement only relates to such additional shares of common stock.
Sales
of our common stock, if any, under this prospectus supplement and the accompanying prospectus will be made in sales deemed to
be “at the market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities
Act, including sales made directly on or through the NASDAQ Capital Market, the existing trading market for our common stock,
sales made to or through a market maker other than on an exchange or otherwise, in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by law, including
in privately negotiated transactions. Maxim will use its commercially reasonable efforts to sell on our behalf all the shares
of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between
Maxim and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement. We provide more information
about how the shares of common stock will be sold in the section entitled “Plan of Distribution.”
Maxim
will be entitled to compensation at a fixed commission rate of 4.25% of the gross proceeds of each sale of shares of our common
stock. In connection with the sale of shares of our common stock on our behalf, Maxim will be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of Maxim will be deemed to be underwriting commissions or discounts.
We have also agreed to provide indemnification and contribution to Maxim with respect to certain liabilities, including liabilities
under the Securities Act.
Our
common stock is traded on The NASDAQ Capital Market under the symbol “SINT.” On September 11, 2019, the last
reported sale price of our common stock was $1.44 per share.
As
of the date of this prospectus supplement, the aggregate market value of our outstanding common stock held by non-affiliates was
approximately $7,328,071, based on 2,363,894 shares of outstanding common stock held by non-affiliates, and a per share
price of $3.10 based on the closing sale price of our common stock on July 29, 2019. In no event will the aggregate
market value of securities sold by us or on our behalf under this prospectus supplement pursuant to General Instruction I.B.6
of Form S-3 during the twelve-month period immediately prior to, and including, the date of any such sale, exceed one-third of
the aggregate market value of our common stock held by non-affiliates. During the twelve-month period that ends on and includes
the date hereof, we have sold 457,879 shares of our common stock, adjusted for our reverse stock split on July 26, 2019, for aggregate
gross proceeds of approximately $1,529,831 pursuant to General Instruction I.B.6 of Form S-3.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-5 of this prospectus supplement,
page 5 of the accompanying prospectus and under similar headings in the documents incorporated by reference into this prospectus
supplement and the accompanying prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
Maxim
Group LLC
The
date of this prospectus supplement is September 12, 2019
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT
THIS PROSPECTUS SUPPLEMENT
References
in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein or therein, to the
“Company,” “our,” “us” or “we” refer to SINTX Technologies, Inc.
On
March 25, 2019, we filed with the SEC a registration statement on Form S-3 (File No. 333-230492) utilizing a shelf registration
process relating to the securities described in this prospectus supplement, which registration statement was declared effective
on April 5, 2019. Under this shelf registration process, we may, from time to time, sell up to $50 million in the aggregate of
shares of common stock, shares of preferred stock, debt securities, warrants, rights, and units, of which approximately $47.5
million will remain available for sale following the offering and as of the date of this prospectus supplement.
This
document is in two parts. The first part is this prospectus supplement, which describes the specific terms of this offering and
adds to and updates information contained in the accompanying base prospectus and the documents incorporated by reference into
this prospectus supplement and the base prospectus. The second part, the base prospectus, gives more general information about
securities we may offer from time to time, some of which does not apply to this offering. Generally, when we refer only to the
prospectus, we are referring to both parts combined, and when we refer to the accompanying prospectus, we are referring to the
base prospectus.
If
the description of this offering varies between this prospectus supplement and the accompanying prospectus, you should rely on
the information in this prospectus supplement. This prospectus supplement, the accompanying prospectus and the documents incorporated
into each by reference include important information about us, our common stock being offered and other information you should
know before investing. You should read this prospectus supplement and the accompanying prospectus together with the additional
information described under the headings “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference” before investing in our common stock.
We
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 herein 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 agreement, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made.
Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state
of our affairs.
Unless
otherwise indicated, all references to “dollars” and “$” in this prospectus supplement, the accompanying
prospectus and documents incorporated by reference herein and therein, are to amounts presented in United States dollars. Financial
information presented in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein
and therein that is derived from the Company’s financial statements is prepared in accordance with accounting principles
generally accepted in the United States.
We
have authorized only the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus,
and any free writing prospectus prepared by or on behalf of us or to which we have referred you. We have not, and Maxim any other
underwriters have not, authorized anyone to provide you with information that is different. We and Maxim take no responsibility
for and can provide no assurance as to the reliability of, any information that others may give you. We are offering to sell,
and seeking offers to buy, our common stock only in jurisdictions where offers and sales are permitted. The information contained
in or incorporated by reference in this document is accurate only as of the date such information was issued, regardless of the
time of delivery of this prospectus supplement or the date of any sale of our common stock.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying prospectus and the information incorporated by reference herein and therein contain forward-looking
statements that reflect our management’s beliefs and views with respect to future events and are subject to substantial
risks and uncertainties within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Exchange Act. All statements, other than statements of historical fact, contained in this prospectus
supplement, the accompanying prospectus and the documents incorporated by reference herein, including statements regarding our
strategy, future operations, future financial position, future revenue, projected costs, prospects, plans and objectives of management,
are forward-looking statements. Forward-looking statements can be identified by the use of forward-looking words such as “believes,”
“expects,” “may,” “will,” “plans,” “intends,” “estimates,”
“could,” “should,” “would,” “continue,” “seeks,” “aims,”
“projects,” “predicts,” “pro forma,” “anticipates,” “potential” or
other similar words (including their use in the negative), or by discussions of future matters such as the development of product
candidates or products, technology enhancements, possible changes in legislation, and other statements that are not historical.
The
forward-looking statements in this prospectus supplement, the accompanying prospectus and the information incorporated by reference
herein and therein include, among other things, statements about:
|
●
|
our
ability to continue as a going concern;
|
|
|
|
|
●
|
our
ability to achieve sufficient market acceptance of any of our products or product candidates;
|
|
|
|
|
●
|
our
ability to enter into and maintain successful OEM partnerships and arrangements with third parties;
|
|
|
|
|
●
|
our
perception of the growth in the size of the potential market for our products and product candidates;
|
|
|
|
|
●
|
our
estimate of the advantages of our silicon nitride technology platform;
|
|
|
|
|
●
|
our
ability to become a profitable biomaterial technology company;
|
|
|
|
|
●
|
our
estimates regarding our needs for additional financing and our ability to obtain such additional financing on suitable terms;
|
|
|
|
|
●
|
our
ability to succeed in obtaining FDA clearance or approvals for our product candidates;
|
|
|
|
|
●
|
our
ability to receive CE Marks for our product candidates;
|
|
|
|
|
●
|
the
timing, costs and other limitations involved in obtaining regulatory clearance or approval for any of our product candidates
and product candidates and, thereafter, continued compliance with governmental regulation of our existing products and activities;
|
|
|
|
|
●
|
our
ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights
of others;
|
|
|
|
|
●
|
our
ability to obtain sufficient quantities and satisfactory quality of raw materials to meet our manufacturing needs;
|
|
|
|
|
●
|
the
availability of adequate coverage reimbursement from third-party payers in the United States;
|
|
|
|
|
●
|
our
estimates regarding anticipated operating losses, future product revenue, expenses, capital requirements and liquidity;
|
|
|
|
|
●
|
our
manufacturing capacity to meet future demand;
|
|
|
|
|
●
|
our
ability to develop effective and cost-efficient manufacturing processes for our products;
|
|
●
|
our
reliance on third parties to supply us with raw materials and our non-silicon nitride products and instruments;
|
|
|
|
|
●
|
the
safety and efficacy of products and product candidates;
|
|
|
|
|
●
|
the
timing of and our ability to conduct clinical trials; and
|
|
|
|
|
●
|
our
ability to attract and retain a qualified management team, engineering team, and business development team and other qualified
personnel and advisors.
|
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements. We operate in a very
competitive and rapidly changing environment. It is not possible for our management to predict all risks, nor can we assess the
impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to
differ materially from those contained in any forward-looking statements we may make. Actual results or events could differ materially
from the plans, intentions and expectations disclosed in the forward-looking statements we make, and accordingly you should not
place undue reliance on our forward-looking statements. We have included important factors in the cautionary statements included
in this prospectus supplement, particularly in the “Risk Factors” section, and under similar headings in the accompanying
prospectus and the documents incorporated by reference herein, that we believe could cause actual results or events to differ
materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact
of any future acquisitions, mergers, dispositions, joint ventures or investments we may make.
You
should read this prospectus supplement, the accompanying prospectus and the information incorporated by reference herein and therein
completely and with the understanding that our actual future results may be materially different from what we expect. We qualify
all of the forward-looking statements in this prospectus and the documents incorporated by reference herein by these cautionary
statements. Except as required by law, we undertake no obligation to publicly update any forward-looking statements, whether as
a result of new information, future events or otherwise.
PROSPECTUS
SUPPLEMENT SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus supplement, the accompanying prospectus and in
the documents we incorporate by reference. This summary does not contain all of the information you should consider before investing
in our common stock. You should read this entire prospectus supplement and the accompanying prospectus carefully, especially the
risks of investing in our common stock discussed under “Risk Factors” beginning on page S-5 of this prospectus supplement,
page 5 of the accompanying prospectus and page 26 of our Annual Report on Form 10-K for the year ended December 31, 2018, which
is incorporated by reference in this prospectus supplement, along with our consolidated financial statements and notes to those
consolidated financial statements and the other information incorporated by reference in this prospectus supplement and the accompanying
prospectus, before making an investment decision.
Company
Overview
We
are an original equipment manufacturer (“OEM”) ceramics company that develops and commercializes silicon nitride
for medical and non-medical applications. The core strength of SINTX Technologies is the manufacturing, research, and development
of silicon nitride ceramics for external partners. We believe that silicon nitride has a superb combination of properties that
make it ideally suited for long-term human implantation. Other biomaterials are based on bone grafts, metal alloys, and polymers-
all of which have well-known practical limitations and disadvantages. In contrast, silicon nitride has a legacy of success in
the most demanding and extreme industrial environments. As a human implant material, silicon nitride offers bone ingrowth, resistance
to bacterial and viral infection, ease of diagnostic imaging, resistance to corrosion, and superior strength and fracture resistance,
among other advantages, all of which claims are validated in our large and growing inventory of peer-reviewed, published literature
reports. We believe that our versatile silicon nitride manufacturing expertise positions us favorably to introduce new and innovative
devices in the medical and non-medical fields.
We
also believe that we are the first and only company to commercialize silicon nitride medical implants. Prior to October 1, 2018,
we designed, manufactured and commercialized silicon nitride products for our own behalf in the spine implant market. Over 33,000
of our spinal implants manufactured with silicon nitride have been implanted into patients, with an excellent safety record. On
October 1, 2018, we sold our spine implant business to CTL Medical and now manufacture spine implants made with silicon nitride
for CTL Medical. Prior to selling our spine implant business to CTL Medical, we had received 510(k) regulatory clearance in the
United States, a CE mark in Europe, ANVISA approval in Brazil, and ARTG and Prostheses approvals in Australia for a number of
silicon nitride spine implant products designed for spinal fusion surgery. Spine implant products manufactured by us from silicon
nitride are currently marketed and sold by CTL Medical under the Valeo® brand to surgeons and hospitals in the United States
and to selected markets in Europe and South America. These implants are designed for use in cervical (neck) and thoracolumbar
(lower back) spine surgery. We are collaborating with CTL Medical to establish a commercial partner in Australia and also working
with other partners to obtain regulatory approval for silicon nitride implants in Japan.
The
sale of our spine implant business to CTL Medical enables us to now focus on our core competencies. These are research and development
of silicon nitride and the design and manufacture of medical and nonmedical products manufactured from silicon nitride and other
ceramic materials for our own account and in collaboration with other medical device manufacturers. We are targeting OEM – including CTL Medical - and private label partnerships in order to accelerate
adoption of silicon nitride in future markets such as coating products with silicon nitride, hip and knee replacements, dental
and maxillofacial implants, extremities, trauma, and sports medicine. Existing biomaterials, based on plastics, metals, and bone
grafts have well-recognized limitations that we believe are addressed by silicon nitride, and we are uniquely positioned to convert
existing, successful implant designs made by other companies into products manufactured with silicon nitride. OEM and private
label partnerships allow us to work with a variety of partners, accelerate the adoption of silicon nitride, and realize incremental
revenue at improved operating margins, when compared to the cost-intensive direct sales model.
We
believe that silicon nitride addresses many of the biomaterial-related limitations in fields such as hip and knee replacements,
dental and maxillofacial implants, sports medicine, extremities, and trauma surgery. We further believe that the inherent material
properties of silicon nitride, and the ability to formulate the material in a variety of compositions, combined with precise control
of the surface properties of the material, opens up a number of commercial opportunities across orthopedic surgery, neurological
surgery, maxillofacial surgery, other medical disciplines, as well as commodity items such as industrial fasteners, bushings,
and valves to addressing more complex demands of hypersonic missile radomes, aerospace, air-conditioning systems, beverage dispensers,
touch-screen glass, and agribusiness fungicides.
We
operate a 30,000 square foot manufacturing facility at our corporate headquarters in Salt Lake City, Utah, and we believe we are
the only vertically integrated silicon nitride medical device manufacturer in the world.
Our
Strategy
Our
goal is to become a leading biomaterial company focused on using our silicon nitride technology platform to develop, manufacture
and commercialize a broad range of medical devices. Key elements of our strategy to achieve this goal are the following:
|
●
|
Support
CTL and drive further adoption of silicon nitride interbody spinal fusion devices. We have entered into a 10-year agreement
to manufacture all of CTL Medical’s requirements of silicon nitride based spinal implant products. This includes the
current product line as well as new applications for silicon nitride in the spine.
|
|
|
|
|
●
|
Develop
a commercial opportunity outside of spine. We have had active programs outside of spine for several years. We expect to
commercialize on one or more of these in the near future.
|
|
|
|
|
●
|
Develop
new silicon nitride manufacturing technologies. Our current manufacturing process has allowed us to successfully produce
spinal implants for over 10 years. However, this process has limitations and we are actively pursuing other manufacturing
technologies such as additive manufacturing, and surface coating technologies.
|
|
|
|
|
●
|
Make
improvements to our current formulation of silicon nitride to increase the bioactive properties of the material. We have
demonstrated in the laboratory that we can make our material more bioactive. This work has been independently corroborated
by researchers in other parts of the world. We expect that the availability of silicon nitride with enhanced bioactivity would
open up new markets to us.
|
Intellectual
Property
We
rely on a combination of patents, trademarks, trade secrets, nondisclosure agreements, proprietary information ownership agreements
and other intellectual property measures to protect our intellectual property rights. We believe that in order to have a competitive
advantage, we must continue to develop and maintain the proprietary aspects of our technologies.
As
of the beginning of May 2019, we had thirteen issued U.S. patents, four pending U.S. patent applications, and two pending PCT
applications. Our first issued patent expired in 2016, with the last of these patents expiring in 2036. The core patent (US 6,881,229)
expires in 2022.
We
have seven U.S. patents directed to articulating implants using our high-strength, high toughness doped silicon nitride solid
ceramic. The issued patents, which include US 6,881,229; US 7,666,229; US 7,780,738; US 8,123,812; US 8,133,284; US 9,051,639;
and US 9,517,136 begin to expire in 2022.
We
also have two U.S. patents related to our CSC technology that are directed to implants that have both a dense load-bearing, or
cortical, component and a porous, or cancellous, component, together with a surface coating. These issued patents, US 8,133,284
and US 9,649,197 will expire in 2022 and 2035, respectively.
We
also have three U.S. patents that we acquired in July 2012 from Dytech Corporation Ltd., or Dytech, directed to manufacturing
processes for the production of porous ceramics for use in our orthopedic implants. These patents include US 5,563,106 and US
5,705,448, which have now expired; and US 6,617,270, which expires in 2019. Under our acquisition agreement with Dytech, Dytech
granted to us a perpetual, irrevocable and exclusive license, including the right to grant sublicenses, to certain improvements
and know-how related to the acquired patents. In return, we are required to pay Dytech a low single-digit royalty on net sales
of products sold by us, our affiliates, or our licensees that are covered by one or more valid claims of these patents, and a
percentage of any non-royalty licensing income we may receive in the event we grant a license to others.
With
respect to PCT patent application serial no. PCT/US2018/014781 directed to antibacterial biomedical implants, we have instructed
outside patent counsel to enter the national stage in Europe, Australia, Brazil, Canada, China, Japan, and South Korea by the
statutory deadline on September 2019 in order to seek potential patent protection for our proprietary technologies in those countries.
In
relation to the sale of our spine implant business to CTL Medical under the Asset Purchase Agreement dated September 5, 2018 we
assigned our entire right to forty eight (48) U.S. patents, two (2) foreign patents and three (3) pending patent applications
from our patent portfolio to CTL Medical under that transaction. In addition, three (3) U.S. patents (U.S. patent nos. 9,399,309;
9,517,136; and 9,649,197) directed to silicon nitride manufacturing processes were licensed to CTL Medical under an irrevocable,
fully paid-up, worldwide license for a ten year term with CTL Medical also having a Right of First Negotiation to acquire these
patents if SINTX decides to later sell these IP assets to a third party. The previously listed licensed patents under Schedule
A that were licensed to SINTX (Amedica) by the Dr. Jackson and SMS Trust pursuant to a license agreement between the parties has
been assigned to CTL Medical as part of the sale of the spine business.
Our
remaining issued patents and pending applications are directed to additional aspects of our products and technologies including,
among other things:
|
●
|
designs
for intervertebral fusion devices;
|
|
●
|
designs
for hip implants;
|
|
●
|
designs
for knee implants;
|
|
●
|
implants
with improved antibacterial characteristics;
|
|
●
|
implants
with improved wear performance; and
|
|
●
|
Antipathogenic
compositions.
|
We
also expect to rely on trade secrets, know-how, continuing technological innovation and in-licensing opportunities to develop
and maintain our intellectual property position. However, trade secrets are difficult to protect. We seek to protect the trade
secrets in our proprietary technology and processes, in part, by entering into confidentiality agreements with commercial partners,
collaborators, employees, consultants, scientific advisors and other contractors and into invention assignment agreements with
our employees and some of our commercial partners and consultants. These agreements are designed to protect our proprietary information
and, in the case of the invention assignment agreements, to grant us ownership of the technologies that are developed.
Recent
Developments
On
July 25, 2019, the Company’s Board of Directors approved an amendment to the Company’s amended and restated certificate
of incorporation to effect a 1-for-30 reverse stock split of the Company’s common stock. The reverse stock split became
effective on July 26, 2019. The par value of the common stock and convertible preferred stock was not adjusted as a result of
the reverse stock split.
Corporate
Information
Our
headquarters is located at 1885 West 2100 South, Salt Lake City, Utah 84119, and our telephone number is (801) 839-3500. We maintain
a website at https://www.sintx.com. Information on the website is not incorporated by reference and is not a part of this prospectus.
THE
OFFERING
Common
Stock to be offered by us pursuant to this prospectus supplement
|
|
Shares
of our common stock having an aggregate offering price of up to $912,000
|
|
|
|
Common
Stock outstanding prior to this offering
|
|
2,363,990
shares of common stock
|
|
|
|
Common
Stock outstanding after this offering
|
|
Up
to 2,997,323 shares of common stock, assuming sales of 633,333 shares of common stock at a price of $1.44
per share, which was the closing price of our common stock on The NASDAQ Capital Market on September 11, 2019.
The actual number of shares of our common stock issued will vary depending on the sales price under this offering.
|
|
|
|
NASDAQ
Capital Market Symbol
|
|
SINT
|
|
|
|
Manner
of offering
|
|
Sales
of shares of our common stock, if any, will be made pursuant to the terms of the Equity Distribution Agreement between us
and Maxim Group LLC. Sales of the shares will be made in sales deemed to be “at-the-market” equity offerings as
defined in Rule 415 promulgated under the Securities Act. Maxim will act as sales agent and will use commercially reasonable
efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading
and sales practices. See “Plan of Distribution.”
|
|
|
|
Use
of Proceeds
|
|
We
plan to use the net proceeds from this offering, if any, for general working capital and general corporate purposes. See “Use
of Proceeds.”
|
|
|
|
Risk
Factors
|
|
Investing
in our common stock involves substantial risk. You should read the “Risk Factors” section of this prospectus supplement
beginning on page S-5, page 5 of the accompanying prospectus and the “Risk Factors” sections in our Annual Report
on Form 10-K for the year ended December 31, 2018, which are incorporated by reference, for a discussion of factors to consider
carefully before deciding to invest in shares of our common stock.
|
|
|
|
Exclusive
Sales Agent
|
|
Maxim
Group LLC is acting as the exclusive sales agent in connection with the offering.
|
|
|
|
Impact
of Offering on Outstanding Securities
|
|
Sales
of shares of common stock in this offering may result in the reduction of the exercise
price of certain of our outstanding warrants, as well as the reduction in the conversion
price of our Series B Convertible Preferred Stock. Reductions in the exercise prices
of certain warrants and the conversion price of the Series B Convertible Preferred Stock
could result in the issuance of additional shares of common stock, which would be dilutive
to the purchasers of shares of common stock in this offering.
|
The
above discussion is based on 2,363,990 shares of our common stock outstanding as of August 30, 2019 and excludes:
|
●
|
377
shares of our common stock issuable upon the exercise of stock options outstanding as of June 30, 2019, at a weighted average
exercise price of $7,653 per share;
|
|
|
|
|
●
|
5,953
shares of common stock reserved for future issuance under our Amended and Restated 2012 Equity Incentive Plan as of August
30, 2019;
|
|
|
|
|
●
|
388,175
shares of common stock issuable upon the exercise of warrants outstanding as of August 30, 2019; and
|
|
|
|
|
●
|
95,303
shares of common stock issuable upon the conversion of 249 shares of our outstanding Series B Convertible Preferred Stock
outstanding as of August 30, 2019.
|
Except as otherwise indicated, all information
in this prospectus gives effect to a 1-for-30 reverse stock split of our common stock, which became effective as of July 26, 2019.
RISK
FACTORS
Before
you make a decision to invest in our securities, you should consider carefully the risks described below, together with other
information in this prospectus supplement, the accompanying prospectus and the information incorporated by reference herein and
therein, including any risk factors contained in our annual and other reports filed with the SEC. If any of the following events
actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected.
This could cause the trading price of our common stock to decline and you may lose all or part of your investment. The risks described
below are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial may
also significantly impair our business operations and could result in a complete loss of your investment.
Risks
Related to this Offering
Since
we have broad discretion in how we use the proceeds from this offering, we may use the proceeds in ways with which you disagree.
We
have not allocated specific amounts of the net proceeds from this offering for any specific purpose. Accordingly, our management
will have some flexibility in applying the net proceeds of this offering. You will be relying on the judgment of our management
with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess
whether the proceeds are being used appropriately. It is possible that the net proceeds will be invested in a way that does not
yield a favorable, or any, return for us. The failure of our management to use such funds effectively could have a material adverse
effect on our business, financial condition, operating results and cash flow.
You
may experience future dilution as a result of future equity offerings.
In
order to raise additional capital, we may at any time, including during the pendency of this offering, 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.
Sales
of a significant number of shares of our common stock in the public markets, or the perception that such sales could occur, could
depress the market price of our common stock.
Sales
of a substantial number of shares of our common stock in the public markets could depress the market price of our common stock
and impair our ability to raise capital through the sale of additional equity securities. We cannot predict the effect that future
sales of our common stock would have on the market price of our common stock.
The
common stock offered hereby will be sold in “at the market” offerings, and investors who buy shares at different times
will likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes
in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares
sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result
of share sales made at prices lower than the prices they paid.
The
actual number of shares we will issue under the Equity Distribution Agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the Equity Distribution Agreement and compliance with applicable law, we have the discretion to deliver
a sales notice to Maxim at any time throughout the term of the Equity Distribution Agreement. The number of shares that are sold
by Maxim after delivering a sales notice will fluctuate based on the market price of the common shares during the sales period
and limits we set with Maxim. Because the price per share of each share sold will fluctuate based on the market price of our common
stock during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
The
market price of our common stock is volatile, and you could lose all or part of your investment.
The
volatility of orthopedic company stocks, including shares of our common stock, often do not correlate to the operating performance
of the companies represented by such stocks or our operating performance. Some of the factors that may cause the market price
of our common stock to fluctuate include:
|
●
|
CTL
Medical’s ability to sell silicon nitride based spinal fusion products and our cost of manufacturing such products for
CTL Medical;
|
|
|
|
|
●
|
our
ability to develop, obtain regulatory clearances or approvals for, and market new and enhanced product candidates on a timely
basis;
|
|
|
|
|
●
|
our
ability to enter into OEM and private label partnership agreements and the terms of those agreements;
|
|
|
|
|
●
|
changes
in governmental regulations or in the status of our regulatory approvals, clearances or future applications;
|
|
|
|
|
●
|
our
announcements or our competitors’ announcements regarding new products, product enhancements, significant contracts,
number and productivity of distributors, number of hospitals and surgeons using products, acquisitions or strategic investments;
|
|
|
|
|
●
|
announcements
of technological or medical innovations for the treatment of orthopedic pathology;
|
|
|
|
|
●
|
delays
or other problems with the manufacturing of our products, product candidates and related instrumentation;
|
|
|
|
|
●
|
volume
and timing of orders for our products and our product candidates, if and when commercialized;
|
|
|
|
|
●
|
changes
in the availability of third-party reimbursement in the United States and other countries;
|
|
|
|
|
●
|
quarterly
variations in our or our competitors’ results of operations;
|
|
|
|
|
●
|
changes
in earnings estimates or recommendations by securities analysts, if any, who cover our common stock;
|
|
|
|
|
●
|
failure
to meet estimates or recommendations by securities analysts, if any, who cover our stock;
|
|
|
|
|
●
|
changes
in the fair value of our derivative liabilities resulting from changes in the market price of our common stock, which may
result in significant fluctuations in our quarterly and annual operating results;
|
|
|
|
|
●
|
changes
in healthcare policy in the United States and internationally;
|
|
|
|
|
●
|
product
liability claims or other litigation involving us;
|
|
|
|
|
●
|
sales
of a substantial aggregate number of shares of our common stock;
|
|
|
|
|
●
|
sales
of large blocks of our common stock, including sales by our executive officers, directors and significant stockholders;
|
|
|
|
|
●
|
disputes
or other developments with respect to intellectual property rights;
|
|
|
|
|
●
|
changes
in accounting principles;
|
|
|
|
|
●
|
changes
to tax policy; and
|
|
|
|
|
●
|
general
market conditions and other factors, including factors unrelated to our operating performance or the operating performance
of our competitors.
|
These
and other external factors may cause the market price and demand for our common stock to fluctuate substantially, which may limit
or prevent our stockholders from readily selling their shares of our common stock and may otherwise negatively affect the liquidity
of our common stock. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have
sometimes instituted securities class action litigation against the company that issued the stock. If our stockholders brought
a lawsuit against us, we could incur substantial costs defending the lawsuit regardless of the merits of the case or the eventual
outcome. Such a lawsuit also would divert the time and attention of our management from running our company.
We
could be delisted from Nasdaq, which could seriously harm the liquidity of our stock and our ability to raise capital.
Our
common stock is currently listed on the Nasdaq Capital Market, which has qualitative and quantitative listing criteria. However,
we cannot assure you that our common stock will continue to be listed on Nasdaq in the future. In order to continue listing our
common stock on Nasdaq, we must maintain certain financial, distribution and stock price levels. Generally, we must maintain a
minimum amount in stockholders’ equity and a minimum number of holders of our common stock.
If
we cease to be eligible to trade on the Nasdaq Capital Market:
|
●
|
We
may have to pursue trading on a less recognized or accepted market, such as the OTC Bulletin Board or the “pink sheets.”
|
|
|
|
|
●
|
The
trading price of our common stock could suffer, including an increased spread between the “bid” and “asked”
prices quoted by market makers.
|
|
|
|
|
●
|
Shares
of our common stock could be less liquid and marketable, thereby reducing the ability of stockholders to purchase or sell
our shares as quickly and as inexpensively as they have done historically. If our stock is traded as a “penny stock,”
transactions in our stock would be more difficult and cumbersome.
|
|
|
|
|
●
|
We
may be unable to access capital on favorable terms or at all, as companies trading on alternative markets may be viewed as
less attractive investments with higher associated risks, such that existing or prospective institutional investors may be
less interested in, or prohibited from, investing in our common stock. This may also cause the market price of our common
stock to decline.
|
USE
OF PROCEEDS
We
may offer and sell shares of our common stock having aggregate sales proceeds of up to $912,000 from time to time.
The amount of proceeds we receive, if any, will depend on the actual number of shares of our common stock sold and the market
price at which such shares are sold. There can be no assurance that we will be able to sell any shares or fully utilize the Equity
Distribution Agreement with Maxim as a source of financing. Because there is no minimum offering amount required as a condition
to close this offering, the net proceeds to us, if any, are not determinable at this time.
We
currently intend to use the net proceeds from this offering, if any, primarily for working capital and general corporate purposes.
We may also use a portion of the net proceeds to invest in or acquire businesses or technologies that we believe are complementary
to our own, although we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this
prospectus supplement.
We
have broad discretion in determining how the remaining proceeds of this offering will be used, and our discretion is not limited
by the aforementioned possible uses. Our board of directors believes the flexibility in application of the net proceeds is prudent.
See “Risk Factors—Risks Relating to this Offering— Since we have broad discretion in how we use the proceeds
from this offering, we may use the proceeds in ways with which you disagree.”
PLAN
OF DISTRIBUTION
Pursuant
to the Equity Distribution Agreement, as amended on September 12, 2019, by and between the Company and Maxim Group LLC,
Maxim Group LLC (“Maxim”) has agreed to act as exclusive sales agent in connection with this offering of our common
stock pursuant to this prospectus supplement and the accompanying prospectus. Maxim is not purchasing or selling any of the shares
of our common stock offered by this prospectus supplement, nor is it required to arrange the purchase or sale of any specific
number or dollar amount of shares of our common stock, but have agreed to use their reasonable best efforts to arrange for the
sale of all of the shares of our common stock offered hereby.
Upon
delivery of a placement notice and subject to the terms and conditions of the Equity Distribution Agreement, Maxim may sell shares
of our common stock by any method permitted by law deemed to be an “at-the-market” equity offering as defined in Rule
415 promulgated under the Securities Act, including sales made directly on or through The NASDAQ Capital Market, the existing
trading market for our common stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated
transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or any
other method permitted by law, including in privately negotiated transactions.
We
will pay Maxim in cash, upon each sale of shares of our common stock pursuant to the Equity Distribution Agreement, a commission
equal to 4.25% of the gross proceeds from each sale of shares of our common stock. Because there is no minimum offering amount
required as a condition to this offering, the actual total public offering amount, commissions and proceeds to us, if any, are
not determinable at this time. To date, we have sold approximately $1.5 million under the Equity Distribution Agreement and
have paid to Maxim approximately $28,017 of commissions. We have also agreed to pay to Maxim an advance in the amount of $20,000
(to be applied towards future legal costs as well as expenses related to the offering incurred by Maxim). In the event the offering
is terminated, Maxim shall return any portion of the advance not used to pay its accountable out-of-pocket expenses actually incurred.
Legal fees for the offering shall initially equal $50,000 (inclusive of the $20,000 advance) and shall be paid as follows: $10,000
shall be paid out of the advance and $20,000 shall be paid when we have received gross proceeds equal to $1.5 million and $2.5
million, respectively. To date, we have paid to Maxim $20,000 of expenses. In addition to such fees, at the end of
each quarter in which the offering is open we have agreed to pay Maxim’s legal counsel an additional $5,000.
Settlement
for sales of shares of our common stock will occur on the second business day following the date on which any sales are made,
or on some other date that is agreed upon by us and Maxim in connection with a particular transaction, in return for payment of
the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement. Sales of
shares of our common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company
or by such other means as we and Maxim may agree upon.
We
have agreed to provide indemnification and contribution to Maxim and specified persons against certain civil liabilities, including
liabilities under the Securities Act, and the Securities Exchange Act of 1934, as amended, or the Exchange Act, and to contribute
to payments that Maxim may be required to make in respect of such liabilities.
Maxim
may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received
by them and any profit realized on the resale of the shares sold by them while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an underwriter, Maxim would be required to comply with the requirements
of the Securities Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5
and Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares by
the agent acting as principal. Under these rules and regulations, Maxim:
|
●
|
may
not engage in any stabilization activity in connection with our securities; and
|
|
|
|
|
●
|
may
not 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 it has completed its participation in the distribution.
|
The
offering of shares of our common stock pursuant to the Equity Distribution Agreement will terminate upon the earlier of (i) June
4, 2020, (ii) the sale of all common stock provided for in this prospectus supplement, and (iii) the termination of the Equity
Distribution Agreement by mutual written agreement of us and Maxim.
Maxim
and its affiliates may in the future provide various investment banking, commercial banking and other financial services for us
and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M,
Maxim will not engage in any market making activities involving our shares of our common stock while the offering is ongoing under
this prospectus.
This
prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by Maxim
and Maxim may distribute this prospectus supplement and the accompanying prospectus electronically.
The
foregoing does not purport to be a complete statement of the terms and conditions of the Equity Distribution Agreement. A copy
of the Amendment to the Equity Distribution Agreement is included as an exhibit to our Current Report on Form 8-K that
will be filed with the SEC and incorporated by reference into the registration statement of which this prospectus supplement and
the accompanying base prospectus form a part. A copy of the Equity Distribution Agreement was included as an exhibit to our
Current Report on Form 8-K filed on June 4, 2019 and is incorporated by reference into the registration statement of which this
prospectus supplement and the accompanying base prospectus form a part. See “Incorporation of Documents by Reference”
and “Where You Can Find More Information.”
LEGAL
MATTERS
The
validity of the shares of common stock offered hereby will be passed upon for us by Dorsey & Whitney LLP, Salt Lake City,
Utah. Maxim is being represented in connection with this offering by Ellenoff Grossman & Schole LLP, New York, New York.
EXPERTS
The
financial statements of SINTX Technologies, Inc., appearing in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2018 have been audited by Tanner LLC, an independent registered public accounting firm (the report on the consolidated
financial statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern) incorporated
by reference herein, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available
to the public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by
us with the SEC are also available on our website at http://www.sintx.com. Our website is not a part of this
prospectus supplement and is not incorporated by reference in this prospectus supplement.
This
prospectus supplement is part of a registration statement that we filed with the SEC. The registration statement contains more
information than this prospectus supplement and the accompanying prospectus regarding us and the securities, including certain
exhibits and schedules. You can obtain a copy of the registration statement from the SEC’s internet site.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information from other documents that we file with it, which means that
we can disclose important information to you by referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus supplement and the accompanying prospectus.
We
incorporate by reference into this prospectus supplement and the accompanying prospectus the information or documents listed below
that we have filed with the SEC, and any future filings we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K) until the offering of the securities
under the registration statement is terminated or completed:
|
●
|
our
Annual Report on Form
10-K for the year ended December 31, 2018;
|
|
|
|
|
●
|
our
Quarterly Report on Form
10-Q for the quarter ended March 31, 2019;
|
|
|
|
|
●
|
our
Quarterly Report on Form
10-Q for the quarter ended June 30, 2019;
|
|
|
|
|
●
|
our
Current Reports on Form 8-K filed on February
19, 2019, April
24, 2019, May
24, 2019, June
4, 2019, June
10, 2019, June
28, 2019, July
15, 2019 and July
26, 2019;
|
|
|
|
|
●
|
the
information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2018
from our Definitive
Proxy Statement on Schedule 14A (other than information furnished rather than filed) filed on March 25, 2019;
and
|
|
|
|
|
●
|
the
description of our common stock, which is contained in the Registration Statement on Form
8-A, as filed with the SEC on February 7, 2014, including any amendment or report filed for the purpose of updating
such description.
|
Any
statement contained in this prospectus supplement, the accompanying prospectus or in a document incorporated or deemed to be incorporated
by reference into this prospectus supplement and the accompanying prospectus will be deemed to be modified or superseded for purposes
of this prospectus supplement and the accompanying prospectus to the extent that a statement contained in this prospectus supplement
and the accompanying prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this
prospectus supplement and the accompanying prospectus modifies or supersedes the statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement and the accompanying
prospectus.
We
will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference
in this prospectus, including exhibits to these documents. You should direct any requests for documents to SINTX Technologies,
Inc., Attention: Investor Relations, 1885 West 2100 South, Salt Lake City, Utah 84119 or by calling (801) 839-3500.
You
also may access these filings on our website at www.sintx.com. We do not incorporate the information on our
website into this prospectus supplement or the accompanying prospectus and you should not consider any information on, or that
can be accessed through, our website as part of this prospectus supplement or the accompanying prospectus (other than those filings
with the SEC that we specifically incorporate by reference into this prospectus supplement and the accompanying prospectus).
PROSPECTUS
SINTX
TECHNOLOGIES, INC.
$50,000,000
Common
Stock, Preferred Stock,
Debt
Securities,
Warrants,
Rights and Units
From
time to time, we may offer and sell up to $50.0 million of any combination of the securities described in this prospectus, either
individually or in combination. We may also offer shares of common stock or shares of preferred stock upon conversion of debt
securities, shares of common stock upon conversion of shares of preferred stock, or shares of common stock, shares of preferred
stock or debt securities upon the exercise of warrants.
This
prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific
terms of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses
to be provided to you in connection with these offerings. A 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 in this prospectus
before you invest in any securities. This prospectus may not be used to consummate a sale of securities unless accompanied by
an applicable prospectus supplement.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”. On March 22, 2019, the last reported
sale price for our common stock was $0.224 per share. The applicable prospectus supplement will contain information, where applicable,
as to any other listing on The NASDAQ Capital Market or any securities market or other exchange of the securities, if any, covered
by the prospectus supplement.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK
FACTORS” ON PAGE 5 AND CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS AND
UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
The
securities may be sold directly to investors, through agents designated from time to time or to or through underwriters or dealers.
For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus. If any underwriters or agents are involved in the sale of any securities with respect to which this prospectus
is being delivered, the names of such underwriters or agents and any applicable commissions or discounts and over-allotment options
will be set forth 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.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is April 5, 2019
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
Throughout
this prospectus, references to “SINTX,” the “Company,” “we,” “us,” and “our”
refer to SINTX Technologies, Inc.
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing 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 up to a total dollar amount of $50.0 million. This prospectus provides you
with a general description of the securities we may offer. Each time we sell securities under this shelf registration, we will
provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus.
You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the
information incorporated herein by reference as described under the heading “Incorporation by Reference.”
You
should rely only on the information that we have provided or incorporated by reference in this prospectus, any applicable prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you. We have not authorized any dealer,
salesman or other person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided
to you. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus
or the accompanying prospectus supplement. This prospectus and the accompanying supplement to this prospectus do not constitute
an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate,
nor do this prospectus and the accompanying supplement to this prospectus constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free
writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even
though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered or securities
sold on a later date.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which involve risks
and uncertainties. Forward-looking statements provide current expectations of future events based on certain assumptions and include
any statement that does not directly relate to any historical or current fact. Forward-looking statements are based on our management’s
current beliefs, expectations and assumptions about future events, conditions and results and on information currently available
to us. Discussions containing these forward-looking statements may be found, among other places, in the Sections of this prospectus
entitled “Prospectus Summary” and “Risk Factors.”
All
statements, other than statements of historical fact, included or incorporated herein regarding our strategy, future operations,
financial position, future revenues, projected costs, plans, prospects and objectives are forward-looking statements. In some
cases, you can identify forward-looking statements by terms such as “anticipate,” “believe,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “should,” “will,” “would” and similar expressions.
These statements involve risks, uncertainties and other factors that may cause our actual results, performance, time frames or
achievements to be materially different from any future results, performance, time frames or achievements expressed or implied
by the forward-looking statements. Risks, uncertainties and other factors that might cause or contribute to such differences include,
but are not limited to, those discussed in the Section entitled “Risk Factors” in our most recent Annual Report on
Form 10-K and Quarterly Reports on Form 10-Q. Given these risks, uncertainties and other factors, many of which are beyond our
control, you should not place undue reliance on these forward-looking statements.
In
addition, past financial and/or operating performance is not necessarily a reliable indicator of future performance and you should
not use our historical performance to anticipate results or future period trends. We can give no assurances that any of the events
anticipated by the forward-looking statements will occur or, if any of them do, what impact they will have on our results of operations
and financial condition. Except as required by law, we assume no obligation to update these forward-looking statements publicly,
or to revise any forward-looking statements to reflect events or developments occurring after the date of this prospectus, even
if new information becomes available in the future.
Prospectus
Summary
This
summary highlights selected information from this prospectus and does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the entire prospectus, including the risks of investing discussed
under “Risk Factors” beginning on page 5, the information incorporated by reference, including our financial statements,
and the exhibits to the registration statement of which this prospectus is a part.
Our
Business
We
are a biomaterials company focused on providing ceramic based biomaterial solutions in a variety of medical and industrial applications.
To date, our primary focus has been the research, development and commercialization of medical implant products manufactured with
silicon nitride. We believe that silicon nitride has a superb combination of properties that make it ideally suited for long-term
human implantation. Other biomaterials are based on bone grafts, metal alloys, and polymers- all of which have well-known practical
limitations and disadvantages. In contrast, silicon nitride has a legacy of success in the most demanding and extreme industrial
environments. As a human implant material, silicon nitride offers bone ingrowth, resistance to bacterial and viral infection,
ease of diagnostic imaging, resistance to corrosion, and superior strength and fracture resistance, among other advantages, all
of which claims are validated in our large and growing inventory of peer-reviewed, published literature reports. We believe that
our versatile silicon nitride manufacturing expertise positions us favorably to introduce new and innovative devices in the medical
and non-medical fields.
We
also believe that we are the first and only company to commercialize silicon nitride medical implants. Prior to October 1, 2018,
we designed, manufactured and commercialized silicon nitride products for our own behalf in the spine implant market. Over 33,000
of our spinal implants manufactured with silicon nitride have been implanted into patients, with an excellent safety record. On
October 1, 2018, we sold our spine implant business to CTL Medical and now manufacture spine implants made with silicon nitride
for CTL Medical. Prior to selling our spine implant business to CTL Medical, we had received 510(k) regulatory clearance in the
United States, a CE mark in Europe, ANVISA approval in Brazil, and ARTG and Prostheses approvals in Australia for a number of
silicon nitride spine implant products designed for spinal fusion surgery. Spine implant products manufactured by us from silicon
nitride are currently marketed and sold by CTL Medical under the Valeo® brand to surgeons and hospitals in the United States
and to selected markets in Europe and South America. These implants are designed for use in cervical (neck) and thoracolumbar
(lower back) spine surgery. We are collaborating with CTL Medical to establish a commercial partner in Australia and also working
with other partners to obtain regulatory approval for silicon nitride implants in Japan.
The
sale of our spine implant business to CTL Medical enables us to now focus on our core competencies. These are research and development
of silicon nitride and the design and manufacture of medical and nonmedical products manufactured from silicon nitride and other
ceramic materials for our own account and in collaboration with other medical device manufacturers. We are targeting original
equipment manufacturers (“OEM”) – including CTL Medical - and private label partnerships in order to accelerate
adoption of silicon nitride in future markets such as coating products with silicon nitride, hip and knee replacements, dental
and maxillofacial implants, extremities, trauma, and sports medicine. Existing biomaterials, based on plastics, metals, and bone
grafts have well-recognized limitations that we believe are addressed by silicon nitride, and we are uniquely positioned to convert
existing, successful implant designs made by other companies into products manufactured with silicon nitride. OEM and private
label partnerships allow us to work with a variety of partners, accelerate the adoption of silicon nitride, and realize incremental
revenue at improved operating margins, when compared to the cost-intensive direct sales model.
We
believe that silicon nitride addresses many of the biomaterial-related limitations in fields such as hip and knee replacements,
dental and maxillofacial implants, sports medicine, extremities, and trauma surgery. We further believe that the inherent material
properties of silicon nitride, and the ability to formulate the material in a variety of compositions, combined with precise control
of the surface properties of the material, opens up a number of commercial opportunities across orthopedic surgery, neurological
surgery, maxillofacial surgery, and other medical disciplines.
Corporate
Information
Our
headquarters is located at 1885 West 2100 South, Salt Lake City, Utah 84119, and our telephone number is (801) 839-3500. We maintain
a website at https://www.sintx.com. Information on the website is not incorporated by reference and is not a part of this prospectus.
The
Securities We May Offer
We
may offer shares of common stock and shares of preferred stock, various series of debt securities, warrants to purchase any of
such securities, and rights to purchase shares of common stock, shares of preferred stock or warrants, either individually or
in units, , with a total value of up to $50.0 million from time to time under this prospectus, together with any applicable prospectus
supplement and related free writing 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. 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:
|
●
|
designation
or classification;
|
|
|
|
|
●
|
aggregate
principal amount or aggregate offering price;
|
|
|
|
|
●
|
maturity,
if applicable;
|
|
|
|
|
●
|
original
issue discount, if any;
|
|
|
|
|
●
|
rates
and times of payment of interest or dividends, if any;
|
|
|
|
|
●
|
redemption,
conversion, exchange or sinking fund terms, if any;
|
|
|
|
|
●
|
conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
|
|
|
|
|
●
|
ranking;
|
|
|
|
|
●
|
restrictive
covenants, if any;
|
|
|
|
|
●
|
voting
or other rights, if any; and
|
|
|
|
|
●
|
important
United States federal income tax considerations.
|
A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement
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.
We
may sell the securities directly to or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the
right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or
agents, we will include in the applicable prospectus supplement:
|
●
|
the
names of those underwriters or agents;
|
|
|
|
|
●
|
applicable
fees, discounts and commissions to be paid to them;
|
|
|
|
|
●
|
details
regarding over-allotment options, if any; and
|
|
|
|
|
●
|
the
net proceeds to us.
|
Common
Stock
Our
board of directors has the authority under our Amended and Restated Articles of Incorporation, without further action by our shareholders,
to issue up to 250,000,000 shares of common stock (including shares of common stock outstanding as of the date hereof). We may
offer shares of common stock from time to time.
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders,
and do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to
vote can elect all of the directors standing for election. Subject to preferences that may be applicable to any outstanding shares
of preferred stock, holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared from
time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of our common
stock are fully paid and nonassessable, and any shares of our common stock to be sold pursuant to this prospectus will be fully
paid and nonassessable. The holders of common stock have no preferences or rights of conversion, exchange, pre- emption or other
subscription rights. There are no redemption or sinking fund provisions applicable to our common stock. In the event of any liquidation,
dissolution or winding-up of our affairs, holders of our common stock will be entitled to share ratably in our assets that are
remaining after payment or provision for payment of all of our debts and obligations and after liquidation payments to holders
of outstanding shares of preferred stock, if any.
Preferred
Stock
Our
board of directors has the authority under our Amended and Restated Articles of Incorporation, without further action by our shareholders,
to issue up to 130,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares
to be included in each such series, to fix the rights, preferences, privileges and restrictions of the shares of each wholly unissued
series, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund
terms, and to increase or decrease the number of shares of any such series (but not below the number of shares of such series
then outstanding). Our preferred stock is described in greater detail in this prospectus under “Description of Capital Stock
— Preferred Stock.”
We
will fix the rights, preferences, privileges, qualifications and restrictions of the shares of each series of preferred stock
that we sell under this prospectus and applicable prospectus supplements in an amendment to our Amended and Restated Articles
of Incorporation relating to that series. We will incorporate by reference into the registration statement of which this prospectus
is a part the form of any amendment to our Amended and Restated Articles of Incorporation that describes the terms of the series
of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you to read the prospectus
supplements and any free writing prospectus that we may authorize to be provided to you related to the series of preferred stock
being offered, as well as the complete amendment to our Amended and Restated Articles of Incorporation that contains the terms
of the applicable series of preferred stock.
Debt
Securities
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. Senior debt securities will rank equally with any other unsecured and unsubordinated debt. Subordinated debt
securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing
the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into our shares of common stock or
shares of preferred stock. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
The
debt securities will be issued under one or more documents called indentures, which are contracts between us and a national banking
association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities.
We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be
provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms
of the debt securities. A form of indenture has been filed as an exhibit to the registration statement of which this prospectus
is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered
will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference
from reports that we file with the SEC.
Warrants
We
may offer warrants for the purchase of our common stock, preferred stock and/or debt securities in one or more series, from time
to time. We may issue warrants independently or together with shares of common stock, shares of preferred stock and/or debt securities,
and the warrants may be attached to or separate from those securities.
In
this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge
you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related
to the particular warrants being offered, as well as the complete warrant document or agreement that contain the terms of the
warrants. Specific warrant documents or agreements will contain additional important terms and provisions and will be filed as
exhibits to the registration statement of which this prospectus is a part, or incorporated by reference from a current report
on Form 8-K that we file with the SEC.
Rights
We
may distribute rights to the holders of our common stock or other securities to purchase a specified number of our shares of common
stock or other securities that the holder owns as of record date set by our board of directors. In a prospectus supplement, we
will inform you of the exercise price and other specific terms of the rights.
Units
We
may offer units consisting of shares of common stock, shares of preferred stock, debt securities warrants and/or rights to purchase
any of such securities in one or more series. In this prospectus, we have summarized certain general features of the units under
“Description of Units.” We urge you, however, to read the prospectus supplements and any free writing prospectus that
we may authorize to be provided to you related to the particular units being offered, as well as the unit agreements that contain
the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the form of unit agreement and any supplemental agreements
that describe the terms of the units we are offering before the issuance of the related units.
THIS
PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
NASDAQ
Capital Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”. The applicable prospectus supplement
will contain information, where applicable, as to other listings, if any, on The NASDAQ Capital Market or other securities exchange
of the securities covered by the applicable prospectus supplement.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing
in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in
the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the
prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties
and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, which is incorporated herein by reference, and may be amended, supplemented or superseded from time to time
by other reports we file with the Securities and Exchange Commission in the future. The risks and uncertainties we have described
are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our operations.
USE
OF PROCEEDS
Except
as described in any applicable prospectus, prospectus supplement and in any free writing prospectuses in connection with a specific
offering, we currently intend to use the net proceeds from this offering primarily for general corporate purposes, including capital
expenditures, working capital, financing of possible acquisitions and other business opportunities.
DESCRIPTION
OF CAPITAL Stock
As
of the date of this prospectus, our Restated Certificate of Incorporation authorizes us to issue 250,000,000 shares of common
stock, par value $0.01 per share, and 130,000,000 shares of preferred stock, par value $0.01 per share. The following is a summary
of the rights of our common and preferred stock and some of the provisions of our Restated Certificate of Incorporation and Restated
Bylaws, our outstanding warrants, our registration rights agreements and the Delaware General Corporation Law. Because it is only
a summary, it does not contain all the information that may be important to you and is subject to and qualified in its entirety
by our Restated Certificate of Incorporation and our Restated Bylaws, a copy of each of which has been incorporated as an exhibit
to the registration statement of which this prospectus forms a part.
Our
Restated Certificate of Incorporation and our Restated Bylaws contain certain provisions that are intended to enhance the likelihood
of continuity and stability in the composition of the board of directors, which may have the effect of delaying, deferring or
preventing a future takeover or change in control of the Company unless such takeover or change in control is approved by our
board of directors.
Common
Stock
As
of December 31, 2018 there were 21,793,641 shares of common stock outstanding. In addition, as of December 31, 2018 there were:
(i) 11,301 shares of common stock subject to outstanding options; (ii) 75,600 shares of common stock reserved for future issuance
under our Amended and Restated 2012 Equity Incentive Plan; (iii) 12,824,657 shares of common stock reserved for future issuance
under outstanding common stock warrants; and (iv) 9,336,264 shares of common stock reserved for issuance on conversion of shares
of the Series B Preferred Stock. Each outstanding share of common stock entitles the holder thereof to one vote per share on all
matters. Our Restated Bylaws provide that any vacancy occurring in the board of directors may be filled by the affirmative vote
of a majority of the remaining directors. Stockholders do not have preemptive rights to purchase shares in any future issuance
of our common stock. In the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to receive,
ratably, the net assets available to stockholders after payment of all creditors.
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders,
and do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to
vote can elect all of the directors standing for election. Subject to preferences that may be applicable to any outstanding shares
of preferred stock, holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared from
time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of our common
stock are fully paid and nonassessable, and any shares of our common stock to be sold pursuant to this prospectus will be fully
paid and nonassessable. The holders of common stock have no preferences or rights of conversion, exchange, pre- emption or other
subscription rights. There are no redemption or sinking fund provisions applicable to our common stock. In the event of any liquidation,
dissolution or winding-up of our affairs, holders of our common stock will be entitled to share ratably in our assets that are
remaining after payment or provision for payment of all of our debts and obligations and after liquidation payments to holders
of outstanding shares of preferred stock, if any.
The
transfer agent and registrar for our common stock is American Stock Transfer and Trust Company. The transfer agent and the registrar’s
address is 59 Maiden Lane, New York, New York 10038. Their telephone number is 1-800-937-5449. Our common stock is listed on The
NASDAQ Capital Market under the symbol “SINT”.
Preferred
Stock
Our
Board of directors has the authority under our Restated Certificate of Incorporation, without further action by our stockholders,
to issue up to 130,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares
to be included in each such series, to fix the rights, preferences, privileges and restrictions of the shares of each wholly unissued
series, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund
terms, and to increase or decrease the number of shares of any such series (but not below the number of shares of such series
then outstanding).
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could have the effect of
restricting dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of
our common stock or otherwise adversely affecting the rights of holders of our common stock. The issuance of preferred stock,
while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things,
have the effect of delaying, deferring or preventing a change of control and may adversely affect the market price of our common
stock.
Series
B Preferred Stock.
Our
board of directors designated 15,000 shares of our preferred stock as Series B Preferred Stock. As of December 31, 2018, there
were 4,074 shares of Series B Preferred stock outstanding. The Series B Preferred Stock ranks senior to our common stock and other
classes of capital stock with respect to redemption, unless the holders of a majority of the outstanding shares of Series B Preferred
Stock consent to the creation of parity stock or senior preferred stock.
Conversion
Each
share of Series B Preferred Stock is convertible into shares of our common stock at any time at the holder’s option at the
Conversion Price described below. We may not effect any conversion of Series B Preferred Stock, with certain exceptions, to the
extent that, after giving effect to an attempted conversion, the holder of Series B Preferred Stock (together with such holder’s
affiliates, and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially
own a number of shares of common stock in excess of 4.99% (or, at the election of the holder, 9.99%) of the shares of our common
stock then outstanding after giving effect to such conversion, referred to as the Preferred Stock Beneficial Ownership Limitation;
provided, however, that upon notice to the Company, the holder may increase or decrease the Preferred Stock Beneficial Ownership
Limitation, provided that in no event may the Preferred Stock Beneficial Ownership Limitation exceed 9.99% and any increase in
the Preferred Stock Beneficial Ownership Limitation will not be effective until 61 days following notice of such increase from
the holder to us.
Subject
to certain ownership limitations as described below and certain equity conditions being met, if during any 30 consecutive trading
days, the volume weighted average price of our common stock exceeds $4.3536 and the daily dollar trading volume during such period
exceeds $500,000 per trading day, we have the right to force the conversion of the Series B Preferred Stock into common stock.
Conversion
Price.
The
Series B Preferred Stock is convertible into shares of common stock by dividing the stated value of the Series B Preferred Stock
($1,100) by $0.48 (the “Conversion Price”). The Conversion Price is subject to adjustment for stock splits, stock
dividends, and distributions of common stock or securities convertible, exercisable or exchangeable for common stock, subdivisions,
combinations and reclassifications.
Subject
to certain exclusions contained in the Certificate of Designation, if the Company in any manner grants or sells any rights, warrants
or options and the lowest price per share for which one share of common stock is at any time issuable upon the exercise of any
such option or upon conversion, exercise or exchange of any Common Stock Equivalents (as defined in the Certificate of Designation)
issuable upon exercise of any such option, exercise or exchange of any Common Stock Equivalent issuable upon the exercise of such
option or otherwise pursuant to the terms thereof is less than the Conversion Price, then such share of common stock will be deemed
to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such option for such
price per share. For purposes of this paragraph only, the “lowest price per share for which one share of common stock is
issuable upon the exercise of any such options or upon conversion, exercise or exchange of any Common Stock Equivalent issuable
upon exercise of any such option or otherwise pursuant to the terms thereof” will be equal to (1) the lower of (x)
the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of
common stock upon the granting or sale of such option, upon exercise of such option and upon conversion, exercise or exchange
of any Common Stock Equivalents issuable upon exercise of such option or otherwise pursuant to the terms thereof and (y) the lowest
exercise price set forth in such option for which one share of common stock is issuable upon the exercise of any such options
or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any such option or otherwise
pursuant to the terms thereof.
Except
as contemplated by the terms of the Certificate of Designation, no further adjustment of the Conversion Price will be made upon
the actual issuance of such shares of common stock or of such convertible securities upon the exercise of such options or otherwise
pursuant to the terms of or upon the actual issuance of such Common Stock Equivalents.
Subject
to certain exclusions contained in the Certificate of Designation, if the Company in any manner issues or sells any Common Stock
Equivalents and the lowest price per share for which one share of common stock is at any time issuable upon the conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof is less than the Conversion Price, then such share of common stock
will be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such convertible
securities for such price per share. For purposes of this paragraph only, the “lowest price per share for which one share
of common stock is issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof”
will be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by
the Company with respect to one share of common stock upon the issuance or sale of the Common Stock Equivalent and upon conversion,
exercise or exchange of such convertible security or otherwise pursuant to the terms thereof and (y) the lowest conversion price
set forth in such convertible security for which one share of common stock is issuable upon conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Common Stock
Equivalent (or any other person) upon the issuance or sale of such Common Stock Equivalent plus the value of any other consideration
received or receivable by, or benefit conferred on, the holder of such Common Stock Equivalent (or any other person). Except as
contemplated by the terms of the Certificate of Designation, no further adjustment of the Conversion Price will be made upon the
actual issuance of such shares of common stock upon conversion, exercise or exchange of such Common Stock Equivalents or otherwise
pursuant to the terms thereof, and if any such issuance or sale of such Common Stock Equivalents is made upon exercise of any
options for which adjustment of the Conversion Price has been or is to be made, except as contemplated by the terms of the Certificate
of Designation, no further adjustment of the Conversion Price will be made by reason of such issuance or sale.
If
the purchase or exercise price provided for in any options, the additional consideration, if any, payable upon the issue, conversion,
exercise or exchange of any convertible securities, or the rate at which any convertible securities are convertible into or exercisable
or exchangeable for shares of common stock increases or decreases at any time (other than proportional changes in conversion or
exercise prices, as applicable, in connection with stock dividends, splits or combination of outstanding common stock) the Conversion
Price in effect at the time of such increase or decrease will be adjusted to the Conversion Price which would have been in effect
at such time had such options or convertible securities provided for such increased or decreased purchase price, additional consideration
or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. If the terms of
any option or convertible security that was outstanding as of the date of issuance of the Preferred Stock and related Warrants
are increased or decreased in the manner described in the immediately preceding sentence, then such option or convertible security
and the shares of common stock deemed issuable upon exercise, conversion or exchange thereof will be deemed to have been issued
as of the date of such increase or decrease. No adjustment will be made if such adjustment would result in an increase of the
Conversion Price then in effect.
If
any option and/or convertible security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance
or sale of any other securities of the Company (as determined by the holder of Preferred Stock, the “Primary Security”,
and such option and/or convertible security and/or Adjustment Right (as defined below), the “Secondary Securities”
and together with the Primary Security, each a “unit”), together comprising one integrated transaction, the aggregate
consideration per share of common stock with respect to such Primary Security will be deemed to be the lower of (x) the
purchase price of such unit, (y) if such Primary Security is an option and/or convertible security, the lowest price per share
for which one share of common stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance
with the paragraphs above and (z) the lowest volume-weighted average price of the common stock on any trading day during the four
trading day period immediately following the public announcement of such dilutive issuance. If any shares of common stock, options
or convertible securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor
will be deemed to be the net amount of consideration received by the Company therefor. If any shares of common stock, options
or convertible securities are issued or sold for a consideration other than cash, the amount of such consideration received by
the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities,
in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the volume-weighted
average prices of such security for each of the five (5) trading days immediately preceding the date of receipt. If any shares
of common stock, options or convertible securities are issued to the owners of the non-surviving entity in connection with any
merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value
of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of common stock,
options or convertible securities (as the case may be). The fair value of any consideration other than cash or publicly traded
securities will be determined jointly by the Company and the holder. If such parties are unable to reach agreement within ten
(10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration
will be determined within five trading days after the tenth day following such Valuation Event by an independent, reputable appraiser
jointly selected by the Company and the holder.
“Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance
or sale (or deemed issuance or sale in accordance with the paragraph above) of shares of common stock that could result in a decrease
in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation,
any cash settlement rights, cash adjustment or other similar rights).
In
addition, holders of Preferred Stock may be eligible to elect an alternative price in the event we issue certain variable price
securities.
Liquidation;
Dividends; Repurchases.
In
the event of a liquidation, the holders of Series B Preferred Stock are entitled to participate on an as-converted-to-common stock
basis with holders of the common stock in any distribution of assets of the Company to the holders of the common stock. Additionally,
we will not pay any dividends on shares of common stock (other than dividends in the form of common stock) unless and until such
time as we pay dividends on each Series B Preferred Share on an as-converted basis. Other than as set forth in the previous sentence,
no other dividends will be paid on Series B Preferred Stock and we will pay no dividends (other than dividends in the form of
common stock) on shares of common stock unless we simultaneously comply with the previous sentence.
Redemption
Right.
The
Company holds an option to redeem some or all of the Series B Preferred Stock at any time after the six-month anniversary of its
issuance date at a 25% premium to the stated value of the Series B Preferred Stock subject to redemption, upon 30 days prior written
notice to the holder of the Series B Preferred Stock. The Series B Preferred Stock would be redeemed by the Company for cash.
Fundamental
Transactions.
In
the event of any fundamental transaction, 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 common stock, then upon any subsequent conversion
of the Series B Preferred Stock, the holder will have the right to receive as alternative consideration, for each share of our
common stock that would have been issuable upon such conversion 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 our
common stock for which the Series B Preferred Stock is convertible immediately prior to such event.
Voting
Rights.
With
certain exceptions, the holders of shares of Series B Preferred Stock have no voting rights. However, as long as any shares of
Series B Preferred Stock remain outstanding, we may not, without the affirmative vote of holders of a majority of the then-outstanding
Series B Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Series B Preferred Stock
or alter or amend the Certificate of Designation, (b) increase the number of authorized shares of Series B Preferred Stock, (c)
amend our Certificate of Incorporation or other charter documents in any manner that adversely affects any rights of holders of
Series B Preferred Stock disproportionately to the rights of holders of our other capital stock, or (d) enter into any agreement
with respect to any of the foregoing.
Jurisdiction
and Waiver of Trial by Jury
Other
than with respect to suits, actions or proceedings arising under the federal securities laws, the Certificate of Designation provides
for investors to consent to exclusive jurisdiction to courts located in New York, New York and provides for a waiver of the right
to a trial by jury. It also provides that disputes are governed by Delaware law.
Future
Preferred Stock.
Our
board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each
series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to
that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or incorporate by reference
into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include:
|
●
|
the
title and stated value;
|
|
|
|
|
●
|
the
number of shares we are offering;
|
|
|
|
|
●
|
the
liquidation preference per share;
|
|
|
|
|
●
|
the
purchase price per share;
|
|
|
|
|
●
|
the
dividend rate per share, dividend period and payment dates and method of calculation for dividends;
|
|
|
|
|
●
|
whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
|
|
|
|
|
●
|
our
right, if any, to defer payment of dividends and the maximum length of any such deferral period;
|
|
|
|
|
●
|
the
procedures for any auction and remarketing, if any;
|
|
|
|
|
●
|
the
provisions for a sinking fund, if any;
|
|
|
|
|
●
|
the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and
repurchase rights;
|
|
|
|
|
●
|
any
listing of the preferred stock on any securities exchange or market;
|
|
|
|
|
●
|
whether
the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and, if applicable,
the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted;
|
|
|
|
|
●
|
voting
rights, if any, of the preferred stock;
|
|
|
|
|
●
|
preemption
rights, if any;
|
|
|
|
|
●
|
restrictions
on transfer, sale or other assignment, if any;
|
|
|
|
|
●
|
a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
|
|
|
|
|
●
|
the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
|
|
●
|
any
limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
|
|
|
|
|
●
|
any
other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock.
|
When
we issue shares of preferred stock under this prospectus, the shares will be fully paid and nonassessable and will not have, or
be subject to, any preemptive or similar rights.
The
General Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock
will have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Description
of Other Outstanding Securities of the Company
Warrants
As
of December 31, 2018, there were 12,824,657 common stock purchase warrants outstanding, which expire between June 2019 and May
2023. Each of these warrants entitles the holder to purchase one share of common stock at prices ranging between $0.48 and $9,279,
as converted, per share, with a weighted average exercise price of $1.40 per share. Certain of these warrants has a net exercise
provision under which its holder may, in lieu of payment of the exercise price in cash, surrender the warrant and receive a net
amount of shares based on the fair market value of our common stock at the time of exercise of the warrant after deduction of
the aggregate exercise price. Each of these warrants also contains provisions for the adjustment of the exercise price and the
aggregate number of shares issuable upon the exercise of the warrant in the event of dividends, share splits, reorganizations
and reclassifications and consolidations. Certain of these warrants contain a provision requiring a reduction to the exercise
price in the event we issue common stock, or securities convertible into or exercisable for common stock, at a price per share
lower than the warrant exercise price.
The
holders of certain of these warrants have registration rights that are outlined below under the heading “Registration Rights.”
May
2018 Public Offering Warrants
On
May 14, 2018, we issued 11,370,000 common stock warrants (the “May 2018 Warrants”) in a public offering. The material
terms and provisions of the May 2018 Warrants are summarized below. This summary of the May 2018 Warrants is not complete. For
the complete terms of the May 2018 Warrants, you should refer to the form of May 2018 Warrant filed as an exhibit to the registration
statement of which this prospectus forms a part.
Pursuant
to a warrant agency agreement between us and American Stock Transfer & Trust Company, LLC, as warrant agent, the May 2018
Warrants were issued in book-entry form and are represented only by one or more global warrants deposited with the warrant agent,
as custodian on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC,
or as otherwise directed by DTC.
Exercisability,
Exercise Price and Term. The May 2018 Warrants entitle the holder to purchase shares of our common stock at an exercise price
equal to $0.48 per share. The May 2018 Warrants were exercisable immediately and expire on the five-year anniversary of the issuance
date. The holder of a May 2018 Warrant will not be deemed a holder of our underlying common stock until the May 2018 Warrant is
exercised, except as set forth in the May 2018 Warrants.
The
exercise price and the number of shares issuable upon exercise of the May 2018 Warrants is subject to appropriate adjustment,
similar to that described with respect to the Series B Preferred Stock above, in the event of recapitalization events, stock dividends,
stock splits, stock combinations, reclassifications, reorganizations or similar events affecting our common stock. Subject to
certain exclusions contained in the May 2018 Warrant, the exercise price is also subject to adjustment in the event that we sell
or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any offer,
sale, grant or any option to purchase or other disposition) any common stock or common stock equivalents (as defined in the May
2018 Warrants), at an effective price per share less than the exercise price then in effect (including in the event we issued
Series B Preferred Stock at a conversion price lower than the initial conversion price of the Series B Preferred Stock). In addition,
May 2018 Warrant holders may be eligible to elect an alternative price in the event we issue certain variable price securities.
The May 2018 Warrant holders must pay the exercise price in cash upon exercise of the May 2018 Warrants, unless such May 2018
Warrant holders are utilizing the cashless exercise provision of the May 2018 Warrants, which is only available in certain circumstances
such as if the underlying shares are not registered with the SEC pursuant to an effective registration statement.
Fundamental
Transactions. In addition, in the event we consummate a merger or consolidation with or into another person or other reorganization
event in which our common shares are converted or exchanged for securities, cash or other property, or we sell, lease, license,
assign, transfer, convey or otherwise dispose of all or substantially all of our assets or we or another person acquires 50% or
more of our outstanding shares of common stock, referred to as a fundamental transaction, then following such event, the holders
of the May 2018 Warrants will be entitled to receive upon exercise of the May 2018 Warrants the same kind and amount of securities,
cash or property which the holders would have received had they exercised the May 2018 Warrants immediately prior to such fundamental
transaction. Any successor to us or surviving entity is required to assume the obligations under the warrants. Notwithstanding
the foregoing, in the event of a fundamental transaction, the holders will have the option, which may be exercised within 30 days
after the consummation of the fundamental transaction, to require the company or the successor entity purchase the Warrant from
the holder by paying to the holder an amount of cash equal to the Black Scholes value of the remaining unexercised portion of
the warrant on the date of the consummation of the fundamental transaction. However, if the fundamental transaction is not within
the company’s control, including not approved by the company’s Board of Directors, the holder will only be entitled
to receive from the company or any successor entity, as of the date of consummation of such fundamental transaction, the same
type or form of consideration (and in the same proportion), at the Black Scholes value of the unexercised portion of the May 2018
Warrant, that is being offered and paid to the holders of common stock of the company in connection with the fundamental transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of common stock are
given the choice to receive from among alternative forms of consideration in connection with the fundamental transaction.
Upon
the holder’s exercise of a May 2018 Warrant, we will issue the shares of common stock issuable upon exercise of the May
2018 Warrant within two trading days following our receipt of a notice of exercise, provided that payment of the exercise price
has been made (unless exercised via the “cashless” exercise provision).
Prior
to the exercise of any May 2018 Warrants to purchase common stock, holders of the May 2018 Warrants will not have any of the rights
of holders of the common stock purchasable upon exercise, including the right to vote, except as set forth therein.
May
2018 Warrant holders may exercise the May 2018 Warrants only if the issuance of the shares of common stock upon exercise of the
May 2018 Warrants is covered by an effective registration statement, or an exemption from registration is available under the
Securities Act and the securities laws of the state in which the holder resides. The May 2018 Warrant holders must pay the exercise
price in cash upon exercise of the May 2018 Warrants unless there is not an effective registration statement or, if required,
there is not an effective state law registration or exemption covering the issuance of the shares underlying the May 2018 Warrants
(in which case, the May 2018 Warrants may only be exercised via a “cashless” exercise provision).
Beneficial
Ownership Limitation. The May 2018 Warrant provides that we may not effect any exercise of the May 2018 Warrants, with certain
exceptions, to the extent that, after giving effect to an attempted exercise, the holder (together with such holder’s affiliates,
and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a
number of shares of common stock in excess of 4.99% (or, at the election of the holder, 9.99%) of the shares of our common stock
then outstanding after giving effect to such exercise, referred to as the May 2018 Warrant Beneficial Ownership Limitation; provided,
however, that upon notice to the Company, the holder may increase or decrease the May 2018 Warrant Beneficial Ownership Limitation,
provided that in no event may the May 2018 Warrant Beneficial Ownership Limitation exceed 9.99% and any increase in the May 2018
Warrant Beneficial Ownership Limitation will not be effective until 61 days following notice of such increase from the holder
to us.
Cashless
Exercise. If a May 2018 Warrant is exercised via the “cashless” exercise provision, the holder will receive the
number of shares equal to the quotient obtained by dividing (i) the difference between the VWAP (as determined pursuant to the
terms of the May 2018 Warrants) and the exercise price of the May 2018 Warrant multiplied by the number of shares issuable under
the May 2018 Warrant if such exercise were by means of a cash exercise by (ii) the VWAP (as determined pursuant to the terms of
the May 2018 Warrants).
Jurisdiction
and Waiver of Trial by Jury. Other than with respect to suits, actions or proceedings arising under the federal securities
laws, the May 2018 Warrant provides for investors to consent to exclusive jurisdiction to courts located in New York, New York
and provides for a waiver of the right to a trial by jury. It also provides that disputes are governed by New York law.
Repricing
of Series E Warrants and Issuance of New Warrants
On
March 6, 2018, the Company entered into a Warrant Amendment Agreement (the “Amendment Agreement”) with the holders
of previously issued Series E Common Stock Purchase Warrants (collectively, the “Series E Investors”).
In
connection with that certain Series E Common Stock Purchase Warrant between the Company and Series E Investors dated July 8, 2016,
(the “Series E Warrant Agreement”) the Company issued to the Series E Investors warrants to purchase up to 832,000
shares of common stock (the “Warrant Shares”) at an exercise price of $12.00 per share, (the “Series E Investor
Warrants”). Under the terms of the Amendment Agreement, in consideration of the Series E Investors exercising 668,335 of
the Series E Investor Warrants (the “Series E Warrant Exercise”), the exercise price per share of the Series E Investor
Warrants was reduced to $2.125 per share. In addition, and as further consideration, the Company issued to the Series E Investors
warrants to purchase up to the number of shares of common stock equal to 100% of the number of Series E Warrant Shares issued
pursuant to the Series E Warrant Exercise at an exercise price per share equal to $2.00 per share, the closing bid price for our
common stock on March 5, 2018 (the “New Warrants”). The Series E Investors may exercise the remaining 163,665 Series
E Investor Warrants at their discretion. In connection with the execution of the Amendment Agreement and issuance of the New Warrants,
we issued to the underwriter a warrant to purchase 10,025 shares of common stock at an exercise price of $2.00 per share. This
warrant is in the same form as the New Warrants and is exercisable for five years after issuance.
The
Amendment Agreement incorporated portions of the Series E Warrant Agreement, which contained customary representations, warranties
and covenants by each of the Company and the Series E Investors.
The
New Warrants are exercisable for up to five years from the Effective Date. The exercise price and number of shares issuable upon
exercise of the New Warrants are subject to adjustment for stock splits, combinations, recapitalization events and certain dilutive
issuances. The New Warrants are required to be exercised for cash, provided that if during the term of the New Warrants there
is not an effective registration statement under the Securities Act covering the resale of the shares issuable upon exercise of
the New Warrants, then the New Warrants may be exercised on a cashless (net exercise) basis. The New Warrant is attached as an
exhibit to the registration statement of which this prospectus forms a part and is incorporated herein by reference.
Securities
Issued to North Stadium Investments, LLC
On
July 28, 2017, the Company closed on a $2.5 million term loan (the “North Stadium Loan”) with North Stadium Investments,
LLC (“North Stadium”), a company owned and controlled by the Company’s Chief Executive Officer and Chairman
of the Board, Dr. Sonny Bal. In connection with the North Stadium Loan, the Company issued to North Stadium a Secured Promissory
Note in the amount of $2.5 million (the “North Stadium Note”). The North Stadium Note bears interest at the rate of
10% per annum, requires the Company to make monthly interest only payments for a period of 12 months, and principal and any unpaid
accrued interest are due and payable 12 months from the effective date of the North Stadium Note, July 28, 2017. The North Stadium
Note is secured by substantially all of the assets of the Company pursuant to a security agreement between the Company and North
Stadium dated July 28, 2017, and is junior to other previously existing security interests in such assets. The North Stadium Note
is attached as an exhibit to the registration statement of which this prospectus forms a part and is incorporated herein by reference.
In
connection with the North Stadium Loan and as additional consideration for the North Stadium Loan, the Company issued to North
Stadium a warrant to acquire shares of common stock with a five-year term (the “North Stadium Warrant”). As a result
of the Company’s reverse stock split since the North Stadium Warrant was issued, the North Stadium Warrant is exercisable
for 55,000 shares of common stock as of the date of this prospectus, at an exercise price of $5.04 per share. The North Stadium
Warrant also has a net exercise provision under which the holder may, in lieu of payment of the exercise price in cash, surrender
the North Stadium Warrant and receive a net number of shares of common stock based on the fair market value of our common stock
at the time of exercise of the North Stadium Warrant after deduction of the aggregate exercise price. The North Stadium Warrant
also contains provisions for the adjustment of the exercise price and the aggregate number of shares of common stock issuable
upon the exercise of the North Stadium Warrant in the event of dividends, share splits, reorganizations, reclassifications and
consolidations. The North Stadium Warrant is attached as an exhibit to the registration statement of which this prospectus forms
a part and is incorporated herein by reference.
January
2017 Public Offering Warrants
On
January 19, 2017, the Company issued common stock and warrants in a public offering, with each warrant exercisable for one share
of common stock. The warrants expire on the five-year anniversary of the closing date. The exercise price is subject to appropriate
adjustment in the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications, reorganizations
or similar events affecting the Company’s common stock. As a result of the Company’s reverse stock split since the
warrants were issued, the warrants are exercisable for 363,750 shares of common stock as of the date of this prospectus, at an
exercise price of $6.60 per share. The warrants are callable by the Company in certain circumstances.
Subject
to limited exceptions, a holder of these warrants will not have the right to exercise any portion of its warrants if the holder
(together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such holder’s
affiliates) would beneficially own a number of shares of our common stock in excess of 4.99% (or, at the election of the holder,
9.99%) of the shares of our common stock then outstanding after giving effect to such exercise (the “2017 Warrant Beneficial
Ownership Limitation”); provided, however, that upon notice to the Company, the holder may increase or decrease the 2017
Warrant Beneficial Ownership Limitation, provided that in no event shall the 2017 Warrant Beneficial Ownership Limitation exceed
9.99% and any increase in the Beneficial Ownership Limitation will not be effective until 61 days following notice of such increase
from the holder to us.
The
holders of these warrants must pay the exercise price in cash upon exercise of the warrants, unless such holders are utilizing
the cashless exercise provision of the warrants, which is only available in certain circumstances such as if the underlying shares
are not registered with the SEC pursuant to an effective registration statement. We intend to use commercially reasonable efforts
to have the registration statement of which this prospectus forms a part, effective when the warrants are exercised.
In
addition, in the event the Company consummates a merger or consolidation with or into another person or other reorganization event
in which our common stock is converted or exchanged for securities, cash or other property, or the Company sells, leases, licenses,
assigns, transfers, conveys or otherwise disposes of all or substantially all of our assets or the Company or another person acquires
50% or more of the outstanding shares of our common stock, then following such event, the holders of the warrants will be entitled
to receive upon exercise of the warrants the same kind and amount of securities, cash or property which the holders would have
received had they exercised the warrants immediately prior to such fundamental transaction. Any successor to us or surviving entity
shall assume the obligations under the warrants.
In
the event of a fundamental transaction other than one in which a successor entity that is a publicly traded corporation whose
stock is quoted or listed on a trading market assumes the warrant such that the warrant shall be exercisable for the publicly
traded common stock of such successor entity, then the Company or any successor entity will pay at the holder’s option,
exercisable at any time concurrently with or within 30 days after the consummation of the fundamental transaction, an amount of
cash equal to the value of the remaining unexercised portion of the warrants on the date of consummation of the fundamental transaction
as determined in accordance with the Black Scholes option pricing model.
Upon
the holder’s exercise of a warrant, the Company will issue the shares of common stock issuable upon exercise of the warrant
within three trading days following the Company’s receipt of a notice of exercise, provided that payment of the exercise
price has been made (unless exercised via the “cashless” exercise provision).
Prior
to the exercise of a warrant, holders of the warrants will not have any of the rights of holders of our common stock purchasable
upon exercise, including the right to vote, except as set forth therein.
The
form of this warrant is attached as an exhibit to the registration statement of which this prospectus forms a part and is incorporated
herein by reference.
June
2016 Public Offering and Underwriter Warrants
In
July 2016, the Company sold Class A and Class B Units that consisted of common stock and Series E Warrants. The Series E Warrants
are exercisable for up to five years after the date of issuance. As of the date of this prospectus, there were 348,623 Series
E Warrants outstanding, exercisable for 348,623 shares of our common stock, at an exercise price of $12 per share. The Series
E warrants are callable by us in certain circumstances.
Subject
to limited exceptions, a holder of Series E Warrants does not have the right to exercise any portion of its Series E Warrants
if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any
of such holder’s affiliates) would beneficially own a number of shares of common stock in excess of 4.99% (or, at the election
of the holder, 9.99%) of the shares of our common stock then outstanding after giving effect to such exercise (the “Series
E Beneficial Ownership Limitation”); provided, however, that upon notice to the Company, the holder may increase or decrease
the Series E Beneficial Ownership Limitation, provided that in no event shall the Series E Beneficial Ownership Limitation exceed
9.99% and any increase in the Series E Beneficial Ownership Limitation will not be effective until 61 days following notice of
such increase from the holder to us.
The
exercise price and the number of shares issuable upon exercise of the Series E Warrants is subject to appropriate adjustment in
the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications, reorganizations or
similar events affecting our common stock. The Series E Warrant holders must pay the exercise price in cash upon exercise of the
Series E Warrants, unless such Series E Warrant holders are utilizing the cashless exercise provision of the Series E Warrants,
which is only available in certain circumstances such as if the underlying shares are not registered with the SEC pursuant to
an effective registration statement. We intend to use commercially reasonable efforts to have the registration statement of which
this prospectus forms a part, effective when the Series E Warrants are exercised.
In
addition, in the event we consummate a merger or consolidation with or into another person or other reorganization event in which
our common shares are converted or exchanged for securities, cash or other property, or we sell, lease, license, assign, transfer,
convey or otherwise dispose of all or substantially all of our assets or we or another person acquire 50% or more of our outstanding
shares of common stock, then following such event, the holders of the Series E Warrants will be entitled to receive upon exercise
of the warrants the same kind and amount of securities, cash or property which the holders would have received had they exercised
the warrants immediately prior to such fundamental transaction. Any successor to us or surviving entity shall assume the obligations
under the Series E Warrants.
In
the event of a fundamental transaction approved by our board of directors and other than one in which a successor entity that
is a publicly traded corporation whose stock is quoted or listed on a trading market assumes the Series E Warrant such that the
Series E Warrant shall be exercisable for the publicly traded common stock of such successor entity, then the Company or any successor
entity will pay at the holder’s option, exercisable at any time concurrently with or within 30 days after the consummation
of the fundamental transaction, an amount of cash equal to the value of the remaining unexercised portion of the Series E Warrants
on the date of consummation of the fundamental transaction as determined in accordance with the Black Scholes option pricing model.
Upon
the holder’s exercise of a Series E Warrant, we will issue the shares of common stock issuable upon exercise of the Series
E Warrant within three trading days following our receipt of a notice of exercise, provided that payment of the exercise price
has been made (unless exercised via the “cashless” exercise provision).
Prior
to the exercise of any Series E Warrants to purchase common stock, holders of the Series E Warrants will not have any of the rights
of holders of the common stock purchasable upon exercise, including the right to vote, except as set forth therein.
The
form of Series E Warrant and form of underwriters warrant are attached as exhibits to the registration statement of which this
prospectus forms a part and is incorporated herein by reference.
2016
Debt Exchange Warrants
On
April 4, 2016, the Company entered into an exchange agreement (the “Riverside Exchange Agreement”) with Riverside
Merchant Partners, LLC (“Riverside”), pursuant to which the Company agreed to exchange $1,000,000 of the principal
amount outstanding under the term loan held by Riverside for a subordinated convertible promissory note in the principal amount
of $1,000,000 and a warrant (the “First Riverside Warrant”) (the “Riverside Exchange”). In addition, pursuant
to the terms and conditions of the Riverside Exchange Agreement, the Company and Riverside exchanged an additional $2,000,000
of the principal amount of the term loan for an additional subordinated convertible promissory note in the principal amount of
up to $2,000,000 and an additional warrant (the “Second Riverside Warrant” and, together with the First Exchange Warrant,
the “Riverside Warrants”). As a result of the Company’s reverse stock split since the Riverside Warrants were
issued, the First Riverside Warrant is exercisable for 8,333 shares of common stock as of the date of this prospectus, at an exercise
price of $19.56 per share, and the Second Riverside Warrant is exercisable for 8,333 shares of common stock as of the date of
this prospectus, at an exercise price of $19.92 per share.
The
Riverside Warrants are exercisable until the five-year anniversary of six months after the date of issuance of the Riverside Warrants.
The Riverside Warrants have a net exercise provision under which the holder may, in lieu of payment of the exercise price in cash,
surrender the warrant and receive a net number of shares of common stock based on the fair market value of our common stock at
the time of exercise of the Riverside Warrants after deduction of the aggregate exercise price. The Riverside Warrants also contain
provisions for the adjustment of the exercise price and the aggregate number of shares of common stock issuable upon the exercise
of the Riverside Warrants in the event of dividends, share splits, reorganizations, reclassifications and consolidations.
In
the event of a fundamental transaction approved by our board of directors, including but not limited to a transaction in which
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another person or group of persons whereby such other person or group acquires more than 50% of the outstanding shares of our
common stock (not including any shares of common stock held by the other person or other persons making or party to, or associated
or affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination),
other than one in which a successor entity that is a publicly traded corporation whose stock is quoted or listed on a trading
market assumes the warrant such that the warrant shall be exercisable for the publicly traded common stock of such successor entity,
then the Company or any successor entity will pay at the holder’s option, exercisable at any time concurrently with or within
30 days after the consummation of the fundamental transaction, an amount of cash equal to the value of the remaining unexercised
portion of the warrants on the date of consummation of the fundamental transaction as determined in accordance with the Black
Scholes option pricing model.
The
form of Riverside Warrant is attached as an exhibit to the registration statement of which this prospectus forms a part and is
incorporated herein by reference.
Westlake
Securities Warrants – 2016
As
compensation paid in connection with the consummation of a private placement in 2016, the Company issued a warrant to Westlake
Securities LLC on January 28, 2016 (the “2016 Westlake Warrant”). The 2016 Westlake Warrant is exercisable for five
years after the date of issuance. As a result of the Company’s reverse stock splits the 2016 Westlake Warrant is exercisable
for 6,250 shares of common stock as of the date of this prospectus at an exercise price of $23.40 per share. The 2016 Westlake
Warrant has a net exercise provision under which the holder may, in lieu of payment of the exercise price in cash, surrender the
warrant and receive a net number of shares of common stock based on the fair market value of our common stock at the time of exercise
of the warrant after deduction of the aggregate exercise price. The 2016 Westlake Warrant contains provisions for the adjustment
of the exercise price and the aggregate number of shares of common stock issuable upon the exercise of the warrant in the event
of dividends, share splits, reorganizations, reclassifications and consolidations. The 2016 Westlake Warrant is attached as an
exhibit to the registration statement of which this prospectus is a part and are incorporated herein by reference.
2015
Series A Warrants
On
September 11, 2015, the Company closed a concurrent public and private offering (the “2015 Offerings”) of common stock
and Series A, Series B and Series C Warrants. The Series B and Series C Warrants have since been either fully exercised or expired
in accordance with their terms, and only 8,333 Series A Warrants remain outstanding as of the date of this prospectus. On December
11, 2015, the Company entered into an Amended and Restated Series A Warrant (the “Series A Warrant Amendment”) with
each of the holders of the Series A Warrants (each an “Investor”). The Series A Warrants are exercisable on a cashless
basis, subject to certain conditions. As a result of the Company’s reverse stock splits since this warrant was issued, the
outstanding Series A Warrants are exercisable for 8,333 shares of common stock as of the date of this prospectus, at an exercise
price of $18.00 per share. The Series A Warrant also contains provisions for the adjustment of the exercise price and the aggregate
number of shares of common stock issuable upon the exercise of the warrant in the event of dividends, share splits, reorganizations,
reclassifications and consolidations. The Series A Warrant prohibits the Company from entering into variable rate transactions
without the holder’s consent.
In
the event of a fundamental transaction approved by our board of directors, including but not limited to a transaction in which
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another person or group of persons whereby such other person or group acquires more than 50% of the outstanding shares of our
common stock (not including any shares of common stock held by the other person or other persons making or party to, or associated
or affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination),
other than one in which a successor entity that is a publicly traded corporation whose stock is quoted or listed on a trading
market assumes the warrant such that the warrant shall be exercisable for the publicly traded common stock of such successor entity,
then the Company or any successor entity will pay at the holder’s option, exercisable at any time concurrently with or within
30 days after the consummation of the fundamental transaction, an amount of cash equal to the value of the remaining unexercised
portion of the warrants on the date of consummation of the fundamental transaction as determined in accordance with the Black
Scholes option pricing model.
As
compensation paid in connection with the consummation of the 2015 Offerings, the Company issued a warrant to Ladenburg Thalmann
& Co. Inc. on September 11, 2015 (the “Ladenburg Warrant”), who acted as placement agent for the 2015 Offerings.
As a result of the Company’s reverse stock split since the Ladenburg Warrant was issued, the Ladenburg Warrant is exercisable
for 3,645 shares of common stock as of the date of this prospectus, at an exercise price of $84.60 per share. The Ladenburg Warrant
is exercisable from March 12, 2016 until September 8, 2020. The Ladenburg Warrant has a net exercise provision under which the
holder may, in lieu of payment of the exercise price in cash, surrender the warrant and receive a net number of shares of common
stock based on the fair market value of our common stock at the time of exercise of the Ladenburg Warrant after deduction of the
aggregate exercise price. The Ladenburg Warrant also contains provisions for the adjustment of the exercise price and the aggregate
number of shares of common stock issuable upon exercise of the Ladenburg Warrant in the event of dividends, share splits, reorganizations,
reclassifications and consolidations.
In
the event of a fundamental transaction approved by our board of directors, including but not limited to a transaction in which
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another person or group of persons whereby such other person or group acquires more than 50% of the outstanding shares of our
common stock (not including any shares of common stock held by the other person or other persons making or party to, or associated
or affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination),
other than one in which a successor entity that is a publicly traded corporation whose stock is quoted or listed on a trading
market assumes the warrant such that the warrant shall be exercisable for the publicly traded common stock of such successor entity,
then the Company or any successor entity will pay at the holder’s option, exercisable at any time concurrently with or within
30 days after the consummation of the fundamental transaction, an amount of cash equal to the value of the remaining unexercised
portion of the warrants on the date of consummation of the fundamental transaction as determined in accordance with the Black
Scholes option pricing model.
The
Series A Warrant and the Ladenburg Warrant are attached as exhibits to the registration statement of which this prospectus forms
a part and is incorporated herein by reference.
2014
Warrant Issued to Hercules Technology III, L.P.
On
June 30, 2014, the Company and its subsidiary entered into a Loan and Security Agreement with Hercules Technology Growth Capital,
Inc. and Hercules Technology III, L.P. In connection with this agreement, the Company issued a warrant to Hercules Technology
III, L.P. to purchase shares of common stock. As a result of the Company’s reverse stock splits since this warrant was issued
and certain subsequent issuances of other securities below the original exercise price of this warrant, this warrant is exercisable
for 8,602 shares of common stock as of the date of this prospectus, at an exercise price of $18.00 per share. This warrant contains
a provision requiring a reduction to the exercise price in the event we issue common stock, or securities convertible into or
exercisable for common stock, at a price per share lower than the warrant exercise price. This warrant also has a net exercise
provision under which the holder may, in lieu of payment of the exercise price in cash, surrender the warrant and receive a net
number of shares of common stock based on the fair market value of our common stock at the time of exercise of the warrant after
deduction of the aggregate exercise price. The warrant also contains provisions for the adjustment of the exercise price and the
aggregate number of shares of common stock issuable upon the exercise of the warrant in the event of dividends, share splits,
reorganizations, reclassifications and consolidations. This warrant is attached as an exhibit to the registration statement of
which this prospectus forms a part and is incorporated herein by reference.
2014
Unit Purchase Option and Related Warrants
In
connection with a public offering of units, with each unit consisting of one share of common stock and one warrant to purchase
multiple shares of common stock in December 2014 we issued to Dawson James Securities, Inc. a Unit Purchase Option (the “Unit
Purchase Option”) to purchase units. The Unit Purchase Option is exercisable until five years from the date of issuance.
As a result of the Company’s reverse stock splits since these units were issued, this Unit Purchase Option is exercisable
for 3,178 units as of the date of this prospectus, at an exercise price of $256.56 per unit. The Unit Purchase Option also has
a net exercise provision under which the holder may, in lieu of payment of the exercise price in cash, surrender the Unit Purchase
Option and receive a net number of units based on the fair market value of the units at the time of exercise of the Unit Purchase
Option after deduction of the aggregate exercise price. The Unit Purchase Option also contains provisions for the adjustment of
the exercise price and the aggregate number of units issuable upon the exercise of the Unit Purchase Option in the event of dividends,
share splits, reorganizations, reclassifications and consolidations. The form of the Unit Purchase Option is attached as an exhibit
to the registration statement of which this prospectus forms a part and is incorporated herein by reference.
The
warrants issuable upon exercise of the Unit Purchase Option terminate on the fifth anniversary of the date of issuance. As a result
of the Company’s reverse stock splits, these warrants now have an exercise price of $256.56 per share. The number of shares
of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations
or similar events affecting our common stock and the exercise price. This warrant contains a provision requiring a reduction to
the exercise price in the event we issue common stock, or securities convertible into or exercisable for common stock, at a price
per share lower than the warrant exercise price.
Cashless
Exercise Provision. Holders may exercise warrants by paying the exercise price in cash or, in lieu of payment of the exercise
price in cash, at any time 120 days after issuance, by electing to receive a cash payment from us equal to the Black Scholes Value
(as defined below) of the number of shares the holder elects to exercise (the “Black Scholes Payment”); provided that
we have discretion as to whether to deliver the Black Scholes Payment or, subject to meeting certain conditions, to deliver a
number of shares of our common stock determined according to the following formula:
Total
Shares = (A x B) / C
Where:
|
●
|
Total
Shares is the number of shares of common stock to be issued upon a cashless exercise
|
|
●
|
A
is the total number of shares with respect to which the warrant is then being exercised.
|
|
●
|
B
is the Black Scholes Value (as defined below).
|
|
●
|
C
is the closing bid price of our common stock as of two trading days prior to the time of such exercise.
|
As
defined in the warrants, “Black Scholes Value” means the Black Scholes value of an option for one share of our common
stock at the date of the applicable Black Scholes Payment or cashless exercise, as such Black Scholes value is determined, calculated
using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying
price per share equal to the closing bid price of the common stock as of trading day immediately preceding the date of issuance
of the warrant, (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term
of the warrant as of the applicable Black Scholes Payment or cashless exercise, (iii) a strike price equal to the exercise price
in effect at the time of the applicable Black Scholes Payment or cashless exercise, (iv) an expected volatility equal to 135%
and (v) a remaining term of such option equal to five (5) years (regardless of the actual remaining term of the warrant).
If,
at any time a warrant is outstanding, the Company consummates any fundamental transaction, as described in the warrants and generally
including any consolidation or merger into another corporation, or the sale of all or substantially all of our assets, or other
transaction in which our common stock is converted into or exchanged for other securities or other consideration, the holder of
any warrants will thereafter receive, the securities or other consideration to which a holder of the number of shares of common
stock then deliverable upon the exercise or exchange of such warrants would have been entitled upon such consolidation or merger
or other transaction. Notwithstanding the foregoing, in connection with a fundamental transaction, at the request of a holder
of warrants we will be required to purchase the warrant from the holder by paying to the holder cash in an amount equal to the
Black Scholes value of the warrant, as described in such warrant. The form of this warrant is attached as an exhibit to the registration
statement of which this prospectus is a part and is incorporated herein by reference.
Kipke
Warrant
As
compensation paid in connection with the consummation of a bridge financing in 2014, the Company issued a warrant to purchase
shares of common stock to Karl Kipke, who acted as a financial advisor in the bridge financing. As a result of the Company’s
reverse stock splits this warrant is exercisable for 139 shares of common stock as of the date of this prospectus, at an exercise
price of $205.20 per share. The warrant has a net exercise provision under which the holder may, in lieu of payment of the exercise
price in cash, surrender the warrant and receive a net number of shares of common stock based on the fair market value of our
common stock at the time of exercise of the warrant after deduction of the aggregate exercise price. The form of this warrant
is attached as an exhibit to the registration statement of which this prospectus is a part and is incorporated herein by reference.
Westlake
Securities Warrants - 2014
As
compensation paid in connection with the consummation of two private placements in 2014, the Company issued two warrants to Westlake
Securities LLC (the “2014 Westlake Warrants”). The first 2014 Westlake Warrant was issued September 17, 2014, and
the second 2014 Westlake Warrant was issued November 12, 2014. The 2014 Westlake Warrants are each exercisable for five years
after the date of issuance. As a result of the Company’s reverse stock splits the first 2014 Westlake Warrant is exercisable
for 278 shares of common stock as of the date of this prospectus at an exercise price of $154.80 per share, and the second 2014
Westlake Warrant is exercisable for 833 shares of common stock as of the date of this prospectus at an exercise price of $225.00
per share. The 2014 Westlake Warrants have a net exercise provision under which the holder may, in lieu of payment of the exercise
price in cash, surrender the warrant and receive a net number of shares of common stock based on the fair market value of our
common stock at the time of exercise of the warrant after deduction of the aggregate exercise price. Each of the 2014 Westlake
Warrants contains provisions for the adjustment of the exercise price and the aggregate number of shares of common stock issuable
upon the exercise of the warrant in the event of dividends, share splits, reorganizations, reclassifications and consolidations.
These 2014 Westlake Warrants are attached as exhibits to the registration statement of which this prospectus is a part and are
incorporated herein by reference.
Outstanding
December 2012 Warrants
On
December 17, 2012, in connection with entering into a commercial lending transaction, we issued warrants to purchase a total of
270,000 shares of our Series F convertible preferred stock to two of our institutional lenders. These warrants are exercisable
for ten years after the date of issuance. As a result of the Company’s reverse stock splits since these warrants were issued
and other corporate changes, these warrants are exercisable for 375 shares of common stock as of the date of this prospectus,
at an exercise price of $9,279.00 per share. These warrants have a net exercise provision under which the holder may, in lieu
of payment of the exercise price in cash, surrender the warrant and receive a net number of shares of common stock based on the
fair market value of our common stock at the time of exercise of the warrant after deduction of the aggregate exercise price.
Each of these warrants also contains provisions for the adjustment of the exercise price and the aggregate number of shares of
common stock issuable upon the exercise of the warrant in the event of dividends, share splits, reorganizations, reclassifications
and consolidations. These warrants are attached as exhibits to the registration statement of which this prospectus is a part and
are incorporated herein by reference.
Registration
Rights
We
have entered into various agreements with holders of shares of our common stock and warrants to acquire shares of our common stock
that under certain circumstances require us to register with the SEC such shares of common stock and the shares of common stock
issuable upon exercise of the warrants. These registration rights are generally subject to certain conditions and limitations,
including our right to limit the number of shares included in any such registration under certain circumstances. We are generally
required to pay all expenses incurred in connection with registrations effected in connection with the registration rights, excluding
selling expenses such as broker commissions and underwriting discounts. The registration rights may be transferred to any transferee
or assignee of the holder of such registrations rights who agrees to be bound by the terms of the registration rights agreement.
Furthermore,
the terms of the agreements generally provide that we will not be required to maintain the effectiveness of any registration statement,
or file another registration statement, with respect to any registrable securities that are not subject to the current public
information requirement under Rule 144 and that are eligible for resale without volume or manner-of-sale restrictions.
Piggyback
Rights. Pursuant to the terms of the warrant issued to Hercules Technology III, L.P. (“Hercules Technology”) on
June 30, 2014 (the “Hercules Warrant”), if at any time while the Hercules Warrant is outstanding we file a registration
statement under the Securities Act to register the sale of any of our securities, we will be required to include in such registration
statement the shares of common stock underlying the Hercules Warrant. We intend to seek a waiver of these piggyback registration
rights from Hercules Technology in connection with this registration statement.
Pursuant
to the terms of the Unit Purchase Option, if at any time while the Unit Purchase Option is outstanding, we file a registration
statement under the Securities Act to register the sale of any of our securities, we will be required to include in such registration
statement the shares of common stock underlying the Unit Purchase Option. We intend to seek a waiver of these registration rights
in connection with this registration statement.
Generally,
the foregoing piggyback registration rights do not apply to registrations of our securities that we initiate that are (i) issuable
in connection with our acquisition of another entity or business or (ii) incidental to any of our equity compensation, employee
stock purchase or other employee benefit plans or any sales agent/distributor equity incentive program that we may implement.
Effects
of Anti-Takeover Provisions of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law
The
provisions of (1) Delaware law, (2) our Restated Certificate of Incorporation and (3) our Restated Bylaws discussed below could
discourage or make it more difficult to prevail in a proxy contest or effect other change in our management or the acquisition
of control by a holder of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult
to accomplish, or could deter, transactions that stockholders may otherwise consider to be in their best interests or our best
interests. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board
of directors and in the policies formulated by the board of directors and to discourage certain types of transactions that may
involve an actual or threatened change in control of our company. These provisions are designed to reduce our vulnerability to
an unsolicited acquisition proposal. These provisions also are intended to discourage certain tactics that may be used in proxy
fights. These provisions also may have the effect of preventing changes in our management.
Delaware
Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is, or the transaction in which the person became an interested
stockholder was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a “business
combination” is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to
the interested stockholder, and, subject to certain exceptions, an “interested stockholder” is a person who, together
with his or her affiliates and associates, owns (or within three years prior, did own) 15% or more of the corporation’s
voting stock.
Classified
Board of Directors; Appointment of Directors to Fill Vacancies; Removal of Directors for Cause. Our Restated Certificate of
Incorporation provides that our board of directors will be divided into three classes as nearly equal in number as possible. Each
year the stockholders will elect the members of one of the three classes to a three-year term of office. All directors elected
to our classified board of directors will serve until the election and qualification of their respective successors or their earlier
resignation or removal. The board of directors is authorized to create new directorships and to fill any positions so created
and is permitted to specify the class to which any new position is assigned. The person filling any of these positions would serve
for the term applicable to that class. The board of directors (or its remaining members, even if less than a quorum) is also empowered
to fill vacancies on the board of directors occurring for any reason for the remainder of the term of the class of directors in
which the vacancy occurred. Members of the board of directors may only be removed for cause and only by the affirmative vote of
holders of at least 80% of our outstanding voting stock. These provisions are likely to increase the time required for stockholders
to change the composition of the board of directors. For example, in general, at least two annual meetings will be necessary for
stockholders to effect a change in a majority of the members of the board of directors.
Authorization
of Blank Check Preferred Stock. Our Restated Certificate of Incorporation provides that our board of directors is authorized
to issue, without stockholder approval, blank check preferred stock. Blank check preferred stock can operate as a defensive measure
known as a “poison pill” by diluting the stock ownership of a potential hostile acquirer to prevent an acquisition
that is not approved by our board of directors.
Advance
Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our Restated Bylaws provide that, for
nominations to the board of directors or for other business to be properly brought by a stockholder before a meeting of stockholders,
the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s
notice generally must be delivered not less than 90 days nor more than 120 days prior to the anniversary of the mailing date of
the proxy statement for the previous year’s annual meeting. For a special meeting, the notice must generally be delivered
no less than 60 days nor more than 90 days prior to the special meeting or ten days following the day on which public announcement
of the meeting is first made. Detailed requirements as to the form of the notice and information required in the notice are specified
in our Restated Bylaws. If it is determined that business was not properly brought before a meeting in accordance with our bylaw
provisions, this business will not be conducted at the meeting.
Special
Meetings of Stockholders. Special meetings of the stockholders may be called only by our board of directors pursuant to a
resolution adopted by a majority of the total number of directors.
No
Stockholder Action by Written Consent. Our Restated Certificate of Incorporation does not permit our stockholders to act by
written consent. As a result, any action to be effected by our stockholders must be effected at a duly called annual or special
meeting of the stockholders.
Super-Majority
Stockholder Vote required for Certain Actions. The Delaware General Corporation Law provides generally that the affirmative
vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation
or bylaws, unless the corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage.
Our Restated Certificate of Incorporation requires the affirmative vote of the holders of at least 80% of our outstanding voting
stock to amend or repeal any of the provisions discussed in this section of this prospectus entitled “Effect of Anti-Takeover
Provisions of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law” or to reduce the number of
authorized shares of common stock or preferred stock. This 80% stockholder vote would be in addition to any separate class vote
that might in the future be required pursuant to the terms of any preferred stock that might then be outstanding. A 80% vote is
also required for any amendment to, or repeal of, our Restated Bylaws by the stockholders. Our Restated Bylaws may be amended
or repealed by a simple majority vote of the board of directors.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer and Trust Company, LLC. The transfer agent and the
registrar’s address is 59 Maiden Lane, New York, New York 10038.
Stock
Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”.
DESCRIPTION
OF DEBT SECURITIES
This
section describes the general terms and provisions of the debt securities that we may offer using this prospectus and the related
indenture. This section is only a summary and does not purport to be complete. You must look to the relevant form of debt security
and the related indenture for a full understanding of all terms of any series of debt securities. The form of debt security and
the related indenture have been or will be filed or incorporated by reference as exhibits to the registration statement of which
this prospectus is a part. See “Where You Can Find More Information” for information on how to obtain copies.
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under
this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described
below. Unless otherwise mentioned or unless the context requires otherwise, whenever we refer to the indenture, we also are referring
to any supplemental indentures that specify the terms of a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture
will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture
as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety
by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read
the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer
under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to
the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture
do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in
our operations, financial condition or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at
a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at
a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of
interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable
to debt securities issued with OID will be described in more detail in the applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
|
●
|
the
title of the series of debt securities;
|
|
|
|
|
●
|
any
limit upon the aggregate principal amount that may be issued;
|
|
|
|
|
●
|
the
maturity date or dates;
|
|
|
|
|
●
|
the
form of the debt securities of the series;
|
|
●
|
the
applicability of any guarantees;
|
|
|
|
|
●
|
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
|
|
|
|
|
●
|
whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms
of any subordination;
|
|
●
|
if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is
convertible into another security or the method by which any such portion shall be determined;
|
|
|
|
|
●
|
the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will
begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method
for determining such dates;
|
|
|
|
|
●
|
our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
|
|
|
|
|
●
|
if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may,
at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the
terms of those redemption provisions;
|
|
|
|
|
●
|
the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities
and the currency or currency unit in which the debt securities are payable;
|
|
|
|
|
●
|
the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
|
|
|
|
|
●
|
any
and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security
for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the
marketing of debt securities of that series;
|
|
|
|
|
●
|
whether
the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the
terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other
individual securities; and the depositary for such global security or securities;
|
|
|
|
|
●
|
if
applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable,
or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
|
|
|
|
|
●
|
if
other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof;
|
|
●
|
additions
to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant;
|
|
|
|
|
●
|
additions
to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders
to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
|
|
|
|
|
●
|
additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
|
|
|
|
|
●
|
additions
to or changes in the provisions relating to satisfaction and discharge of the indenture;
|
|
|
|
|
●
|
additions
to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders
of debt securities issued under the indenture;
|
|
|
|
|
●
|
the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars;
|
|
|
|
|
●
|
whether
interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions
upon which the election may be made;
|
|
|
|
|
●
|
the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax
purposes;
|
|
|
|
|
●
|
any
restrictions on transfer, sale or assignment of the debt securities of the series; and
|
|
|
|
|
●
|
any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions
or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws
or regulations.
|
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into
or exchangeable for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange
and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant
to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive
would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary
of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indenture with respect to any series of debt securities that we may issue:
|
●
|
if
we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable,
and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period
by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of
interest for this purpose;
|
|
|
|
|
●
|
if
we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due
and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such
debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment
of principal or premium, if any;
|
|
|
|
|
●
|
if
we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than
a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive
written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder,
from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable
series; and
|
|
|
|
|
●
|
if
specified events of bankruptcy, insolvency or reorganization occur.
|
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal of, premium, if any, and accrued interest, if any, of such series of debt securities due and payable immediately.
If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued
interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action
on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a
majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series, provided that:
|
●
|
the
direction so given by the holder is not in conflict with any law or the applicable indenture; and
|
|
|
|
|
●
|
subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
|
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a
receiver or trustee, or to seek other remedies only if:
|
●
|
the
holder has given written notice to the trustee of a continuing event of default with respect to that series;
|
|
|
|
|
●
|
the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written
request;
|
|
|
|
|
●
|
such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
by the trustee in compliance with the request; and
|
|
|
|
|
●
|
the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and
offer.
|
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
change an indenture without the consent of any holders with respect to specific matters:
|
●
|
to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
|
|
|
|
|
●
|
to
comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;
|
|
|
|
|
●
|
to
provide for uncertificated debt securities in addition to or in place of certificated debt securities;
|
|
|
|
|
●
|
to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for
the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance,
of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender
any right or power conferred upon us in the indenture;
|
|
|
|
|
●
|
to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of
issue, authentication and delivery of debt securities, as set forth in the indenture;
|
|
|
|
|
●
|
to
make any change that does not adversely affect the interests of any holder of debt securities of any series in any material
respect;
|
|
|
|
|
●
|
to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided
above under “Description of Debt Securities—General” to establish the form of any certifications required
to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities;
|
|
|
|
|
●
|
to
evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
|
|
|
|
|
●
|
to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act.
|
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series
of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding
debt securities affected:
|
●
|
extending
the fixed maturity of any debt securities of any series;
|
|
|
|
|
●
|
reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon
the redemption of any series of any debt securities; or
|
|
|
|
|
●
|
reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
|
Discharge
The
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations to:
|
●
|
provide
for payment;
|
|
|
|
|
●
|
register
the transfer or exchange of debt securities of the series;
|
|
|
|
|
●
|
replace
stolen, lost or mutilated debt securities of the series;
|
|
●
|
pay
principal of and premium and interest on any debt securities of the series;
|
|
|
|
|
●
|
maintain
paying agencies;
|
|
|
|
|
●
|
hold
monies for payment in trust;
|
|
|
|
|
●
|
recover
excess money held by the trustee;
|
|
|
|
|
●
|
compensate
and indemnify the trustee; and
|
|
|
|
|
●
|
appoint
any successor trustee.
|
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides
that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the
applicable prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global
form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus
supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
|
●
|
issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and
ending at the close of business on the day of the mailing; or
|
|
|
|
|
●
|
register
the transfer of or exchange of any debt securities so selected for redemption, in whole or in part, except the unredeemed
portion of any debt securities we are redeeming in part.
|
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to
this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any
holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities, and any claim, controversy or dispute arising under or related to the indenture or the debt
securities, will be governed by and construed in accordance with the laws of the State of New York, except to the extent that
the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase shares of common stock, shares of preferred stock or debt securities and may be issued in
one or more series. Warrants may be offered independently or together with shares of common stock, shares of preferred stock or
debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms
we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However,
no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is
not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, the form of warrant document or agreement that describes the terms of
the particular warrants we are offering before the issuance of the related warrants. The following summaries of material provisions
of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the warrant document or
agreement applicable to particular warrants. We urge you to read the applicable prospectus supplement and any applicable free
writing prospectus related to the particular warrants that we sell under this prospectus, as well as the complete warrant document
or agreement that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to the warrants, including, if applicable:
|
●
|
the
offering price and aggregate number of warrants offered;
|
|
|
|
|
●
|
the
currency for which the warrants may be purchased;
|
|
|
|
|
●
|
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;
|
|
|
|
|
●
|
if
applicable, the date on and after which the warrants and the related securities will be separately transferable;
|
|
|
|
|
●
|
in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
|
|
|
|
|
●
|
in
the case of warrants to purchase shares of common stock or shares of preferred stock, the number of shares of common stock
or shares of 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;
|
|
|
|
|
●
|
the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
|
|
|
|
|
●
|
the
terms of any rights to redeem or call the warrants;
|
|
|
|
|
●
|
any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
|
|
|
|
|
●
|
the
dates on which the right to exercise the warrants will commence and expire;
|
|
|
|
|
●
|
the
manner in which the warrant agreements and warrants may be modified;
|
|
●
|
material
United States federal income tax consequences of holding or exercising the warrants;
|
|
|
|
|
●
|
the
terms of the securities issuable upon exercise of the warrants; and
|
|
|
|
|
●
|
any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
|
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 debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
|
|
|
|
|
●
|
in
the case of warrants to purchase shares of common stock or shares of 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 at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth in the warrant agreement or documents and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant documents properly completed and duly executed at the office of the warrant agent
or any other office indicated in the applicable prospectus supplement, 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, holders of
the warrants may surrender securities as all or part of the exercise price for warrants.
DESCRIPTION
OF RIGHTS
We
may issue rights to purchase our common stock, preferred stock, or warrants in one or more series. Rights may be issued independently
or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription
rights. In connection with any rights offering to our shareholders, we may enter into a standby underwriting arrangement with
one or more underwriters pursuant to which the underwriters will purchase any of the offered securities remaining unsubscribed
after the expiration of the rights offering. In connection with a rights offering to our shareholders, we will distribute certificates
evidencing the rights and an applicable prospectus supplement to our shareholders on the record date that we set for receiving
rights in the rights offering. An applicable prospectus supplement will describe the following terms of rights in respect of which
this prospectus is being delivered:
|
●
|
the
title of the rights;
|
|
|
|
|
●
|
the
securities for which the rights are exercisable;
|
|
|
|
|
●
|
the
exercise price for the rights;
|
|
|
|
|
●
|
the
date of determining the security holders entitled to the rights distribution;
|
|
|
|
|
●
|
the
number of the rights issued to each security holder;
|
|
|
|
|
●
|
the
extent to which the rights are transferable;
|
|
|
|
|
●
|
if
applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the rights;
|
|
|
|
|
●
|
the
date on which the right to exercise the rights shall commence, and the date on which the rights shall expire (subject to any
extension);
|
|
|
|
|
●
|
the
conditions to completion of the rights offering;
|
|
|
|
|
●
|
any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the rights;
|
|
|
|
|
●
|
the
extent to which the rights include an over-subscription privilege with respect to unsubscribed securities;
|
|
|
|
|
●
|
if
applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection
with the rights offering; and
|
|
|
|
|
●
|
any
other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights.
|
Each
right will entitle the holder to purchase for cash the amount of securities, at the exercise price. Rights may be exercised at
any time up to the close of business on the expiration date of the rights. After the close of business on the expiration date,
all unexercised rights will become void. The manner in which rights may be exercised will be described in an applicable prospectus
supplement. We may, but we will not be required to, permit the exercise of rights through the delivery of a notice of guaranteed
delivery from a bank, a trust company, or a New York Stock Exchange member guaranteeing delivery of (1) payment of the exercise
price for the securities for which the rights are being exercised, and (2) a properly completed and executed rights certificate.
The notice of guaranteed delivery must be received by the rights agent before the expiration of the rights, and the rights agent
will not honor a notice of guaranteed delivery unless a properly completed and executed rights certificate and full payment for
the securities being purchased are received by the rights agent by the close of business on the third business day after the expiration
time of the rights. Upon receipt of payment and the proper completion and due execution of the rights certificate at the designated
office of the rights agent or any other office indicated in an applicable prospectus supplement, we or the transfer agent will
forward, as soon as practicable, the securities purchased through the exercise of the rights. We may determine to offer any unsubscribed
offered securities directly to persons other than shareholders, to or through agents, underwriters or dealers or through a combination
of the methods, including pursuant to standby underwriting arrangements, as set forth in an applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements, summarizes
the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below
will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set
forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the units we are
offering, and any supplemental agreements, before the issuance of the related units. The following summaries of material terms
and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement
and any supplemental agreements applicable to particular units. We urge you to read the applicable prospectus supplements related
to the particular units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements
that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock, warrants and rights,
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.
We
will describe in the applicable prospectus supplement the terms of the units, including:
|
●
|
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;
|
|
|
|
|
●
|
any
provisions of the governing unit agreement that differ from those described below; and
|
|
|
|
|
●
|
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
|
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities,” “Description of Warrants” and “Description of Rights” will apply to each unit
and to any shares of common, shares of preferred stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents, and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions,
block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents,
directly to one or more purchasers, or through any combination of these methods. The distribution of the securities may be effected
from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to the prevailing market prices or at negotiated prices.
We
may issue securities to other companies or their security holders to acquire those companies or equity interests in those companies,
or to acquire assets of those companies, through mergers or consolidations with us or any of our subsidiaries, or through the
exchange of our securities for securities of the other companies, or through the exchange of assets of other companies for our
securities, or through similar transactions. We may also issue securities to third parties to acquire patents or other intellectual
property or licenses or similar rights to use patents or other intellectual property.
A
prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to the extent applicable:
|
●
|
the
name or names of any underwriters or dealers, if any;
|
|
|
|
|
●
|
the
purchase price of the securities and the proceeds we will receive from the sale;
|
|
|
|
|
●
|
any
over-allotment options under which underwriters may purchase additional securities from us;
|
|
|
|
|
●
|
any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
|
|
|
|
|
●
|
any
public offering price;
|
|
|
|
|
●
|
any
discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
|
|
●
|
any
securities exchange or market on which the securities may be listed.
|
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
By
Underwriters
If
underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time
to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities
offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed may change
from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement,
naming the underwriter, the nature of any such relationship.
By
Dealers
If
a dealer is utilized in the sale of any securities offered by this prospectus, we will sell those 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. We will set forth the names of the dealers and the terms of the transaction in the applicable prospectus supplement.
By
Agents
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
By
Direct Sales
We
may also directly sell securities offered by this prospectus. In this case, no underwriters or agents would be involved. We will
describe the terms of those sales in the applicable prospectus supplement.
Electronic
Auctions
We
also may make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms
of electronic bidding or ordering systems for the pricing and allocation of the securities, you will want to pay particular attention
to the description of that system we will provide in an applicable prospectus supplement.
The
electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional
offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which
the securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time”
basis, relevant information to assist in making a bid, such as the clearing spread at which the offering would be sold, based
on the bids submitted, and whether a bidder’s individual bids would be accepted, prorated or rejected. Of course, many pricing
methods can and may also be used.
Upon
completion of the electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors.
The final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole
or in part on the results of the Internet or other electronic bidding process or auction.
General
Information
Underwriters,
dealers and agents that participate in the distribution of the securities offered by this prospectus may be deemed underwriters
under the Securities Act, and any discounts or commissions they receive from us and any profit on their resale of the securities
may be treated as underwriting discounts and commissions under the Securities Act.
We
may authorize agents, dealers or underwriters to solicit offers by certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions
we must pay for solicitation of these contracts in the prospectus supplement.
We
may provide agents and underwriters with indemnification against civil liabilities related to this offering, including liabilities
under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Some
or all of the securities we offer, other than shares of common stock, will be new issues of securities with no established trading
market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
We
may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short
sale transactions. If so, the third parties may use securities pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of shares, and may use securities received from us in settlement of those derivatives
to close out any related open borrowings of shares. The third parties in such sale transactions will be identified in the applicable
prospectus supplement.
One
or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the prospectus supplement
so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their
own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with the terms of the
securities. The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will
describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the
securities they remarket.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position.
This short sales position may involve either “covered” short sales or “naked” short sales. Covered short
sales are short sales made in an amount not greater than the underwriters’ over-allotment option to purchase additional
securities in this offering described above. The underwriters may close out any covered short position either by exercising their
over-allotment option or by purchasing securities in the open market. To determine how they will close the covered short position,
the underwriters will consider, among other things, the price of securities available for purchase in the open market, as compared
to the price at which they may purchase securities through the over-allotment option. Naked short sales are short sales in excess
of the over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market.
A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing,
there may be downward pressure on the price of the securities that could adversely affect investors who purchase securities in
this offering. Stabilizing transactions permit bids to purchase the underlying security for the purpose of fixing the price of
the security so long as the stabilizing bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to
cover short positions.
Any
underwriters who are qualified market makers on The NASDAQ Capital Market may engage in passive market making transactions in
our common stock, preferred stock, warrants, units and debt securities, as applicable, on The NASDAQ Capital Market in accordance
with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers
or sales of the securities. 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.
Similar
to other purchase transactions, an underwriter’s purchase to cover the syndicate short sales or to stabilize the market
price of our securities may have the effect of raising or maintaining the market price of our securities or preventing or mitigating
a decline in the market price of our securities. As a result, the price of our securities may be higher than the price that might
otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of the securities if
it discourages resales of the securities.
Neither
we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have
on the price of the securities. If such transactions are commenced, they may be discontinued without notice at any time.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business
for which they receive compensation.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”.
LEGAL
MATTERS
Dorsey
& Whitney LLP, Salt Lake City, Utah will pass for us upon the validity of the securities being offered by this prospectus
and applicable prospectus supplement, and counsel named in the applicable prospectus supplement will pass upon legal matters for
any underwriters, dealers or agents.
EXPERTS
The
consolidated financial statements of SINTX Technologies, Inc., as of December 31, 2018 and 2017, and for each of the years in
the two-year period ended December 31, 2018, have been incorporated by reference herein in reliance on the report of Tanner LLC,
an independent registered public accounting firm (the report on the consolidated financial statements contains an explanatory
paragraph regarding the Company’s ability to continue as a going concern), given on the authority of said firm as experts
in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We
have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities we are offering
under this prospectus. This prospectus 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, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers
that file electronically with the SEC, where our SEC filings are also available. The address of the SEC’s web site is “http://www.sec.gov.”
We maintain a website at www.sintx.com. Information contained in or accessible through our website does not constitute a part
of this prospectus.
INCORPORATION
BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that
we can disclose important information to you by referring you to those documents. The information incorporated by reference is
an important part of this prospectus. The information incorporated by reference is considered to be a part of this prospectus,
and information that we file later with the Commission will automatically update and supersede information contained in this prospectus
and any accompanying prospectus supplement. We incorporate by reference the documents listed below that we have previously filed
with the Commission:
|
●
|
our
Annual Report on Form 10-K for the year ended December 31, 2018;
|
|
|
|
|
●
|
our
Current Report on Form 8-K filed on February 19, 2019;
|
|
|
|
|
●
|
our
definitive proxy statement filed on Schedule 14A on March 25, 2019; and
|
|
|
|
|
●
|
the
description of our common stock, which is contained in the Registration Statement on Form 8-A, as filed with the SEC on February
7, 2014, including any amendment or report filed for the purpose of updating such description.
|
We
also incorporate by reference into this prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, excluding, in each case, information deemed furnished and not filed until we sell all of the
securities we are offering or the termination of the offering. Any statements contained in a previously filed document incorporated
by reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies or
supersedes that statement.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or
oral request, a copy of any or all of the information that has been incorporated by reference into this prospectus but not delivered
with the prospectus, including exhibits that are specifically incorporated by reference into such documents. Requests should be
directed to: SINTX Technologies, Inc., Attention: Investor Relations, 1885 West 2100 South, Salt Lake City, Utah 84119 and our
telephone number is (801) 839-3500.
Up
to $912,000
Common
Stock
PROSPECTUS
SUPPLEMENT
Maxim
Group LLC
September
12, 2019
SiNtx Technologies (NASDAQ:SINT)
Historical Stock Chart
From Aug 2024 to Sep 2024
SiNtx Technologies (NASDAQ:SINT)
Historical Stock Chart
From Sep 2023 to Sep 2024