As Filed With Thefiled with the Securities Andand Exchange Commission On July 20, 2000
on May 30, 2017
Registration Statement No. 333-______
333 - 218062
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
---------------------------
FORM
Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
TITAN MOTORCYCLE CO. OF AMERICA
(Exact
Diffusion Pharmaceuticals Inc.
(Exact name of registrant as specified in its Charter)
NEVADA 86-0776876
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2222 WEST PEORIA AVENUE
PHOENIX, ARIZONA 85029
(602) 861-6977
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
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FRANCIS S. KEERY, CHIEF EXECUTIVE OFFICER
TITAN MOTORCYCLE CO. OF AMERICA
2222 WEST PEORIA AVENUE
PHOENIX, ARIZONA 85029
(602) 861-6977
(Name,charter)
Delaware | 2020 Avon Court, #4 Charlottesville, VA 22902 (434) 220-0718 | 30-0645032 |
(State of Incorporation) | (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) | (I.R.S. Employer |
David G. Kalergis
Chief Executive Officer
2020 Avon Court, #4
Charlottesville, VA 22902
(434) 220-0718
(Name, address, including zip code, and telephone number, including area code, of agent for service)
-------------------------------
COPY TO:
STEVEN D. PIDGEON, ESQ.
SNELL & WILMER L.L.P.
ONE ARIZONA CENTER
PHOENIX, ARIZONA 85004-0001
(602) 382-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
With a Copy to: | |
David S. Rosenthal, Esq. | |
Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this registration statement
becomes effective.
Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_|
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☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X|
☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_|
☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_|
☐
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. |_|
☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer ☐ | Accelerated Filer ☐ | Non-Accelerated Filer ☐ | Smaller Reporting Company☒ | |||
Emerging Growth Company ☐ | ||||||
(Do not check if a smaller reporting company) | ||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be | Proposed Maximum Security(2) | Proposed Maximum Price(2) | Amount of | ||||||||||||
Common Stock, $0.001 par value per share | 26,467,801 | $ | 2.90 | $ | 76,756,622.90 | $ | 8,896.10 | (4) | ||||||||
(1)
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of the Common Stock of the Company as may be issuable with respect to the shares being registered hereunder as may be issuable as a result of any stock dividend, stock split, recapitalization or other similar transaction.
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and low prices per share of the Company’s common stock, $0.001 par value per share, as reported on the NASDAQ Capital Market, on May11, 2017, a date within five business days prior to the filing of this registration statement. |
(3) | Includes (i) 12,376,329 shares issued or issuable upon conversion of the Company’s Series A Convertible Preferred Stock, (ii) 13,555,887 shares issued or issuable upon exercise of the Company’s warrants issued in connection with its private placement of Series A Convertible Preferred Stock and (iii) an estimated 535,585 shares issuable as payment of dividends accruing through October 1, 2017 with respect to the Company’s Series A Convertible Preferred Stock. |
| (4) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 as amended, thisor until the Registration Statement also coversshall become effective on such indeterminate
additional shares of common stockdate as may become issuable as a result of stock
splits, stock dividends or other similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices of
the common stock on July 19, 2000, as reported by the Nasdaq SmallCap Market.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
Titan Motorcycle Co. of America
4,752,632 Common Shares
This prospectus relates to shares of our common stock that may be sold
by the selling stockholders named under the section of this prospectus entitled
"Selling Stockholders." The selling stockholders may sell some or all of the
common stock through ordinary brokerage transactions, directly to market makers
of our shares, or through any of the other means described in the section
entitled "Plan of Distribution" beginning on page 14.
The selling stockholders will receive all of the proceeds from the sale
of the common stock, less any brokerage or other expenses of sale incurred by
them. We are paying for the costs of registering the shares covered by this
prospectus.
Our common stock is traded on the Nasdaq SmallCap Market under the
symbol "TMOT." The closing sales price of our common stock as reported by the
Nasdaq SmallCap Market on July 19, 2000 was $.88 per share.
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BEFORE PURCHASING ANY OF THE SHARES COVERED BY THIS PROSPECTUS, CAREFULLY READ
AND CONSIDER THE RISK FACTORS INCLUDED IN THE SECTION ENTITLED "RISK FACTORS"
BEGINNING ON PAGE 1. YOU SHOULD BE PREPARED TO ACCEPT ANY AND ALL OF THE RISKS
ASSOCIATED WITH PURCHASING THE SHARES, INCLUDING A LOSS OF ALL OF YOUR
INVESTMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THE SALE OF THE COMMON STOCK OR DETERMINED THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANY
PERSON TO TELL YOU OTHERWISE.
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The date of this prospectus is July ____, 2000.
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TABLE OF CONTENTS
Page
TITAN MOTORCYCLE CO. OF AMERICA................................................1
RISK FACTORS...................................................................1
FORWARD LOOKING STATEMENTS.....................................................7
USE OF PROCEEDS................................................................8
SELLING STOCKHOLDERS...........................................................8
DESCRIPTION OF SECURITIES......................................................9
PLAN OF DISTRIBUTION..........................................................14
LEGAL OPINIONS................................................................15
EXPERTS.......................................................................15
WHERE YOU CAN FIND MORE INFORMATION...........................................15
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. NO ONE HAS
BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THE COMMON STOCK IS NOT BEING OFFERED IN ANY JURISDICTION WHERE THE OFFER IS NOT
PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
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TITAN MOTORCYCLE CO. OF AMERICA
We design and manufacture high-end customized heavyweight motorcycles.
We build both highly customized, individually assembled motorcycles and
high-end, assembly-line produced motorcycles. A heavyweight motorcycle is a
motorcycle with an engine size or displacement of 651 cubic centimeters or
greater. Our products are distributed through a network of 61 domestic dealers
and 20 foreign dealers.
We currently maintain three product lines.
PREMIUM MOTORCYCLES: We manufacture seven premium models with a package
of over 200 custom options. Customers design their motorcycles by choosing
colors, paint design, finish, fenders and various performance and aesthetic
enhancements. Premium models are typically constructed and delivered in six to
ten weeks from the order date. Our premium models represented approximately 75%
of our fiscal year 1999 revenues. The average retail selling price for our
premium models is approximately $35,000.
"PHOENIX BY TITAN" MOTORCYCLES: Our "Phoenix by Titan" line of
motorcycles was introduced in March 1999. We manufacture four "Phoenix by Titan"
models with six standard customization packages available through our
dealerships. Our Phoenix models represented approximately 23% of our fiscal year
1999 revenues. The average retail selling price for the "Phoenix by Titan"
models is approximately $25,000.
APPAREL AND ACCESSORIES: We have recently developed a line of Titan
apparel and accessories. We are also developing a premium line of upgrade parts
which are compatible with Titan and other "V Twin" motorcycles.
We are a Nevada corporation formed on January 10, 1995. Our principal
executive offices are located at 2222 West Peoria Avenue, Phoenix, Arizona and
our telephone number is (602) 861-6977.
RISK FACTORS
BEFORE PURCHASING ANY OF THE SHARES COVERED BY THIS PROSPECTUS, YOU SHOULD
CAREFULLY READ AND CONSIDER THE RISK FACTORS SET FORTH BELOW. YOU SHOULD BE
PREPARED TO ACCEPT ANY AND ALL OF THE RISKS ASSOCIATED WITH PURCHASING THE
SHARES, INCLUDING A LOSS OF ALL OF YOUR INVESTMENT.
WE WILL BE UNABLE TO CONTINUE OUR OPERATIONS IF WE ARE UNABLE TO REPLACE OUR
SENIOR CREDIT FACILITY AND RAISE NEW CAPITAL
The report of the independent accountants on the financial statements
included in our Form 10KSB for the fiscal year ended January 1, 2000 included an
explanatory paragraph discussing going concern issues. These issues included the
fact that the Company's primary financing source expired April 10, 2000, at
year-end we did not have another facility available to refinance this debt, and
we were incurring losses from operations.
We have received modifications and extensions through September 11,
2000 to the Wells Fargo line of credit. The latest extension was granted in
light of our continuing inability to date to secure a new credit facility to
replace the existing line of credit. In this regard, discussions with two
potential new lenders that had expressed a preliminary interest in replacing and
expanding the existing facility have terminated, and we are in the process of
seeking additional capital and a new lender. Among other things, the
modification and extension with Wells Fargo further limits our borrowing
capacity and requires that we develop and implement profit improvement and asset
reduction plans and engage an investment banker to seek strategic alternatives,
including selling the business. If we are unable to replace the Wells Fargo line
with a new credit facility, we will be forced to sell or wind down our business.
In addition, the loan agreement with Wells Fargo contains various continuing
obligations, including financial covenants. If the Company fails to satisfy
these covenants, it would be in default under the loan agreement, which could
force us to liquidate or file for reorganization.
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WE ARE SUFFERING FROM A LIQUIDITY CRISIS
Our operations require significant levels of cash to fund the
production of our motorcycles. We have funded our operations with our existing
credit facility, equity infusions and cash from operations. Our lender has
reduced our credit line and we may not be able to raise new capital. In
addition, we are receiving increasing pressure for additional payments from
trade creditors, and are encountering difficulties in obtaining necessary parts
from these suppliers to manufacture our motorcycles.
Many of our dealers receive floor plan financing for our products
through TransAmerica Commercial Finance Corporation and Deutsche Financial
Services. The dealers are the obligors under these floor plan agreements and are
responsible for all principal and interest payments. However, we are subject to
a standard repurchase agreement that requires us to buy back any of our
motorcycles at the wholesale price if the dealer defaults and the motorcycles
are repossessed by one of these floor plan providers. Deutsch Financial Service
and TransAmerica Commercial Finance Corporation have notified us that they
intend to terminate (in Transamerica's case) or may terminate (in Deutsch's
case) these arrangements unless dealer payment guarantees or other
accommodations are made. In addition, various distributorships owned by the
Keery family, which controls Titan Motorcycles, are in the process of being sold
or shut down. These dealerships have historically accounted for a substantial
portion of our sales. There is currently $600,000 in net receivables due to us
from these affiliated distributorships, collection of which is uncertain. As a
result, the inventory held by these dealerships will be returned to us through
Transamerica, with a corresponding payment due Transamerica in the amount of
$1,300,000. The Company does not have the cash to make this payment, and has
reached a verbal agreement with Transamerica that would allow it to resell the
returned inventory to dealers and repay Transamerica over a three month period.
In light of the foregoing, we are actively reviewing a number of
possible strategic alternatives, including:
X seeking alternative sources of capital or debt financing;
X negotiating to maintain the Transamerica and Deutsch
facilities in place;
X implementing a further substantial reduction in our operations
and workforce (we reduced our workforce by approximately 25%
on July 20, 2000); and
X selling or merging the Company.
There can be no assurance that we will be able to implement any of these
strategies. The failure to accomplish one or more of these strategies would
materially adversely effect our financial performance and liquidity. We might
also be forced to liquidate or file for reorganization under the federal
bankruptcy laws.
WE FACE POSSIBLE DELISITING FROM THE NASDAQ SMALLCAP MARKET
Our common stock is currently listed on the Nasdaq SmallCap Market. Our
net tangible assets, however, fell below the minimum required by Nasdaq,
primarily as a result of our Series A and Series B Convertible Preferred Stock
being classified as mezzanine debt rather than equity. Nasdaq notified us of its
intention to delist our common stock from the Nasdaq SmallCap Market unless we
can supply them with a specific plan as to how we expect to achieve and sustain
compliance with all Nasdaq SmallCap Market listing requirements. Subsequent to
Nasdaq's notification, the Company's Series A and Series B preferred
stockholders agreed to modify the terms of their preferred stock so that it
would be characterized under generally accepted accounting principles as
capital, rather than as mezzanine instruments.
Nasdaq also has inquired about the explanatory paragraph in the report
rendered by the Company's independent public accountant regarding the Company's
going concern issues, as more fully described above. In light of the Company's
current
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situation, it is unsure whether the Nasdaq will take action to delist the
Company's securities and, if so, what the timing of such an action would be.
If we fail to maintain Nasdaq listing, the market value of the common
stock may decline and trading in our stock is likely to be materially adversely
effected. Among other things, because our common stock would then constitute
"penny stock" under the Securities Exchange Act of 1934, as amended, any broker
engaging in a transaction in our securities would be required to provide any
customer with a risk disclosure document, disclosure of market quotations, if
any, disclosure of the compensation of the broker-dealer and its salesperson in
the transaction, and monthly account statements showing the market values of our
securities held in the customer's accounts. The bid and offer quotation and
compensation information must be provided prior to effecting the transaction and
must be contained on the customer's confirmation. If brokers become subject to
the "penny stock" rules when engaging in transactions in our securities, they
would become less willing to engage in such transactions, thereby making it more
difficult for our securityholders to sell their common stock, which may result
in a decline in stock value.
WE HAVE A HISTORY OF LOSSES AND WE MAY LOSE MONEY IN THE FUTURE
We incurred losses of $8.1 million in fiscal year 1999 and a loss of
$1,487,215 in the first quarter of 2000. In light of our cash crisis, inability
to finance full production, and reduction in workforce, we may incur losses in
the future. To achieve and maintain profitability, we need to generate an
increased level of market acceptance for our products. Our success depends on
our ability to meet the following objectives, none of which we may achieve:
X increase consumer awareness of our products;
X establish and maintain a reputation for high quality products;
X increase sales through our independent third party dealers;
X expand our dealer network; and
X finance these activities.
We cannot assure you that we will meet these objectives.
WE DEPEND HEAVILY ON THIRD PARTY PARTS SUPPLIERS AND ARE EXPERIENCING
DIFFICULTIES WITH THEM
We operate primarily as an assembler and rely heavily on a number of
major component manufacturers to supply us with almost all of our parts. Any
significant adverse variation in quantity, quality or cost would adversely
affect our volume and cost of production until we could identify alternative
sources of supply. In addition, we are receiving increasing pressure for
additional payments from trade creditors, and are encountering difficulties in
obtaining necessary parts from these suppliers to manufacture our motorcycles.
WE DEPEND HEAVILY ON INDEPENDENT THIRD PARTY DEALERS AND OUR RESULTS OF
OPERATIONS COULD BE NEGATIVELY IMPACTED IF THE DEALERS FAIL TO ADEQUATELY
PROMOTE OUR PRODUCTS, IMAGE AND NAME
Failures by independent third party dealers to adequately promote our
products could negatively affect our results of operations. Our products are
sold primarily through independent dealers. As a result, we are unable to fully
control the presentation, delivery and service of our products to the final
customer. We depend heavily on our dealers' willingness and ability to promote
our products, image and name. As a result of our financial situation, we are
losing dealerships operated by principals of the Company, and may lose others.
This would materially adversely affect our ability to continue in business.
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COMPLICATIONS IN ESTABLISHING AND INTEGRATING OUR NEW "PHOENIX BY TITAN" LINE OF
MOTORCYCLES COULD MATERIALLY ADVERSELY AFFECT OUR EXPENSES, GROSS MARGINS AND
OPERATING RESULTS
We introduced our "Phoenix by Titan" line of heavyweight motorcycles in
1999. Unlike our custom motorcycles, we manufacture these motorcycles in four
models through an assembly line process. Six standard customization packages are
available through the dealerships for each of the four models. While initial
orders have been substantial, there can be no assurance that we will be able to
accomplish the following goals:
X effectively manage any ongoing difficulties that we may
experience;
X successfully adapt to an assembly line manufacturing process;
X gain or maintain consumer acceptance of this product line; and
X finance the production of the motorcycles.
Also, we cannot assure you that this line, which is less expensive,
will not take sales away from our higher end custom motorcycles or that we will
not face other difficulties with this line. Any of these issues could materially
adversely affect our expenses, gross margins and operating results.
BECAUSE WE SELL A DISCRETIONARY PRODUCT, A DOWNTURN IN THE ECONOMY COULD
NEGATIVELY AFFECT OUR GROWTH AND PROFITABILITY
Motorcycles in the high-end customized heavyweight market are
discretionary purchase items. A recession or economic downturn may reduce
consumer spending on these types of items and negatively affect our growth and
profitability. An economic downturn could result from a number of factors
outside of our control, including:
X employment levels;
X business conditions;
X interest rates;
X inflation levels; and
X taxation rates.
COMPETITION IN OUR MARKET HAS INCREASED SUBSTANTIALLY AND MAY RESULT IN PRICE
REDUCTIONS, REDUCED GROSS MARGINS AND A LOSS OF OUR MARKET SHARE
While we operate in the high-end segment of the heavyweight cruiser
market, the overall heavyweight cruiser market has recently experienced a
substantial increase in production capacity and new entrants. Some of our
competitors have technical, production, personnel and financial resources that
exceed ours and we cannot assure you that the competition will not materially
adversely affect our business, financial condition or results of operations. The
increased competition could result in price reductions, reduced gross margins
and a loss in our market share.
Major competitors in the heavyweight cruiser market are:
X Harley-Davidson(TM), the heavyweight cruiser market leader,
which is reportedly increasing its capacity to over 160,000
units from approximately 148,000 units;
X BMW, which entered the segment in 1997 with their "R1200C"
model;
X Excelsior-Henderson, which entered the market with their
"Super X" model; and
X Polaris, which recently entered the market with their "Victory
V92C" model.
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OUR PRODUCTS COULD CONTAIN DEFECTS CREATING PRODUCT RECALLS AND WARRANTY CLAIMS
THAT COULD MATERIALLY ADVERSELY AFFECT OUR FUTURE SALES AND PROFITABILITY
Our products could contain unforeseen defects. These defects could
create product recalls or warranty claims that could increase our costs and
affect profitability. Significant and continuous defects also could negatively
impact the goodwill and quality associated with our brand name. Defects also
could give rise to litigation resulting in liability for judgments that could
have a significant impact on our business, operations and financial condition.
Product recalls resulting from unforeseen defects could subject us to a
significant financial commitment and have a significant impact on our business,
operations and financial condition.
WE DEPEND ON FOREIGN VENDORS FOR CERTAIN COMPONENT PARTS, WHICH EXPOSES US TO
RISKS THAT COULD MATERIALLY AND ADVERSELY AFFECT OUR OPERATING RESULTS
We depend on foreign vendors for certain component parts, which exposes
us to additional risks. Our reliance on foreign vendors exposes us to risks such
as:
X currency fluctuations that may adversely affect the value of
goods purchased;
X trade restrictions;
X delays in shipping;
X changes in tariffs; and
X difficulties in enforcing supply arrangements.
The occurrence of any of these risks could materially and adversely
affect our operating results.
WE MAY ATTEMPT TO ESTABLISH SALES OPERATIONS IN FOREIGN MARKETS, WHICH REQUIRES
SIGNIFICANT MANAGEMENT ATTENTION AND FINANCIAL RESOURCES, AND THIS STRATEGY MAY
NOT BE SUCCESSFUL
If we can obtain necessary financing to sustain our operations, we may
attempt to establish sales operations in foreign markets; however, we cannot
assure you that we will be able to successfully manage the inherent risks and
complications associated with operating in foreign markets.
These risks and complications of operating in foreign markets include the
following:
X selecting and monitoring dealers;
X establishing effective dealer training;
X transporting inventory;
X achieving market acceptance of our products;
X parts availability;
X changes in diplomatic and trade relationships;
X tariffs;
X currency exchange rate; and
X unexpected changes in regulatory requirements.
WE ARE SUBJECT TO VARIOUS ENVIRONMENTAL REGULATIONS AND OUR FAILURE TO COMPLY
COULD NEGATIVELY IMPACT OUR OPERATIONS
We are subject to various federal, state and local environmental
regulations. Our failure to comply with these regulations could result in any
one or more of the following:
X restrictions on our ability to expand or modify our current
operations or facilities;
X significant expenditures in achieving compliance with the
regulations;
X significant liabilities exceeding our available resources; and
X cessation of our operations.
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Our business and assets could be materially adversely affected if
environmental regulations require that we modify our facilities or otherwise
limit our ability to conduct our operations. Any significant expenses incurred
as a result of environmental liabilities could have a material adverse affect on
our business, operating results and financial condition.
OUR BUSINESS WILL SUFFER IF WE ARE UNABLE TO KEEP OUR SENIOR EXECUTIVE OFFICERS
AND KEY EMPLOYEES
We rely considerably on the abilities of Francis S. Keery, our Chairman
and Chief Executive Officer, and Patrick Keery, our President. We also depend to
a significant extent upon the performance of our executive management team. The
unavailability or loss of services of any of these individuals, or the failure
to attract and retain qualified personnel to replace them, could have a material
adverse affect on our business. We only have a non-competition agreement with
our Chief Financial Officer and we cannot assure you that his agreement will be
enforceable or effective in retaining him. Also, we cannot assure you that our
other executive officers will not leave us.
OUR FAILURE TO COMPLY WITH VARIOUS REGULATORY APPROVALS AND GOVERNMENTAL
REGULATIONS COULD NEGATIVELY IMPACT OUR OPERATIONS
Our motorcycles must comply with certain governmental approvals and
certifications regarding noise, emissions and safety characteristics. Our
failure to comply with these requirements could prevent us or delay us from
selling our products, which would have a significant negative impact on our
operations.
OUR QUARTERLY RESULTS MAY FLUCTUATE SIGNIFICANTLY, WHICH MAY CAUSE VOLATILITY IN
OUR STOCK PRICE
Our quarterly operating results may fluctuate significantly as a result
of a variety of factors, many of which are outside of our control. These factors
include:
X manufacturing delays;
X the amount and timing of orders from dealers;
X disruptions in the supply of key components and parts;
X seasonal variations in the sale of our products; and
X general economic conditions.
X liquidity issues
WE COULD BE REQUIRED TO REDEEM OUR SERIES A, SERIES B AND SERIES C CONVERTIBLE
PREFERRED STOCK AT A PREMIUM, WHICH WOULD REQUIRE A LARGE EXPENDITURE OF CAPITAL
AND COULD HAVE A MATERIAL ADVERSE AFFECT ON OUR FINANCIAL CONDITION
The holders of our Series A, Series B and Series C Convertible
Preferred Stock have the right to require us to redeem their Preferred Stock
upon the occurrence of certain events. The redemption of our Series A, Series B
or Series C Convertible Preferred Stock would require a large expenditure of
capital and we may not have sufficient funds to satisfy the redemption. However,
the holders of the Series A and Series B Convertible Preferred Stock have agreed
to amend the terms and conditions of the Series A and Series B Convertible
Preferred Stock through the filing of an amended and restated certificate of
designations. The amendments will allow us to deliver a control notice to the
Series A or Series B holders against their delivery of a redemption notice if
the event or circumstances giving rise to the redemption notice were outside of
our control. The delivery of a control notice will permit us to adjust the
conversion price of the Series A or Series B Convertible Preferred Stock in lieu
of redemption. Ultimately, this will allow us to classify the Series A and
Series B Convertible Preferred Stock as equity rather than mezzanine instruments
in accordance with generally accepted accounting principles.
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WE MAY ISSUE ADDITIONAL STOCK AND DILUTE YOUR OWNERSHIP PERCENTAGE
Certain events over which you have no control could result in the
issuance of additional shares of our common stock, which would dilute your
ownership percentage. We may issue additional shares of common stock or
preferred stock:
X to raise additional capital or finance acquisitions;
X upon the exercise or conversion of outstanding options,
warrants and shares of convertible preferred stock; or
X in lieu of cash payment of dividends.
There are currently outstanding convertible preferred stock, warrants,
and options to acquire up to 7,365,720 additional shares of common stock. If
converted or exercised, these securities will dilute your percentage ownership
of common stock. These securities, unlike common stock, provide for antidilution
protection upon the occurrence of stock dividends, combinations, capital
reorganizations and other events. If one or more of these events occurs, the
number of shares of common stock that may be acquired upon conversion or
exercise would increase.
In addition, you could face further dilution of your ownership
percentage as a result of a decline in the market price of our common stock,
which would result in an increase in the number of shares of common stock
issuable upon conversion of the Series A, Series B or Series C Convertible
Preferred Stock, or in the event of certain defaults under the Series A, Series
B or Series C Preferred Stock, which could result in a dilution adjustment. Any
such event could adversely affect the price of our stock and our ability to
raise additional capital.
OUR GOVERNING DOCUMENTS AND NEVADA LAW CONTAIN PROVISIONS THAT COULD PREVENT
TRANSACTIONS IN WHICH YOU WOULD RECEIVE A PREMIUM FOR YOUR STOCK
Our Articles of Incorporation and the Nevada Revised Statutes contain
provisions that could have the effect of delaying, deferring, or preventing a
change in control and the opportunity to sell your shares at a premium over
current market prices. Although these provisions are intended to protect us and
our stockholders from unwanted takeovers, their effect could hinder or prevent
transactions in which you might otherwise receive a premium for your common
stock over then-current market prices, and may limit your ability to approve
transactions that may be in your best interests. As a result, the mere existence
of these provisions could adversely affect the price of our common stock.
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates forward-looking statements
including statements regarding, among other items, our business strategy, growth
strategy, and anticipated trends in our business. We may make additional written
or oral forward-looking statements from time to time in filings with the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The Selling Stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy or sell these securities in any jurisdiction where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED MAY 30, 2017
Diffusion Pharmaceuticals Inc.
Common Stock
Up to 26,467,801 Shares of Common Stock
Offered by the Selling Stockholders
This prospectus relates to the resale or otherwise. When we use the words
"believe," "expect," "anticipate," "project" and similar expressions, this
should alert you that this is a forward-looking statement. Forward-looking
statements speak only as of the date the statement is made. These
forward-looking statements are based largely on our expectations. They are
subject to a number of risks and uncertainties, some of which cannot be
predicted or quantified and are beyond our control. Future events and actual
results could differ materially from those set forth in, contemplated by, or
underlying the forward-looking statements. Statements in this prospectus, and in
documents incorporated into this prospectus, including those set forth in "Risk
Factors," describe factors, among others, that could contribute to or cause
these differences. In light of these risks and uncertainties, there can be no
assurance that the forward-looking information contained in this prospectus will
in fact transpire or prove to be accurate. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by this section.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of any shares offered by
this prospectus.
SELLING STOCKHOLDERS
The following table provides information about the selling
stockholders. The shares offered by this prospectus will be offeredother disposition from time to time by the selling stockholders named below, or byidentified herein (including, except as the context may otherwise require, their donees, pledgees, donees, transferees or other successors in interestsuccessors-in-interest, the “Selling Stockholders”), of, subject to them.
The adjustment, up to shown as offered by Esquire Trade & Finance Inc. and Celeste
Trust Reg. under this prospectus may be issued upon conversion of the Series C
Convertible Preferred Stock and exercise of warrants acquired by these selling
stockholders from us in a private placement completed on June 20, 2000. Under
the terms of the Series C Convertible Preferred Stock and the related warrants,
no selling stockholder may convert the Series C Convertible Preferred Stock or
exercise warrants to the extent that conversion or exercise would cause the
selling stockholder's beneficial ownership of our common stock, (excluding shares
underlying unconverted Series C Convertible Preferred Stock and unexercised
warrants) to exceed 9.99% of the outstanding shares of common stock.
SHARES OWNED
AFTER OFFERING PERCENTAGE OF
MAXIMUM NUMBER OF (ASSUMING ALL COMMON STOCK
SHARES OWNED SHARES TO BE SOLD SHARES OFFERED OWNED AFTER
NAME OF SELLING STOCKHOLDER PRIOR TO THE OFFERING IN THE OFFERING ARE SOLD) OFFERING
Esquire Trade & Finance
Inc. 1,573,685(1)(6) 2,326,316(2) 0 0%
Celeste Trust Reg. 1,573,685(1)(6) 2,326,316(2) 0 0%
Advantage Fund II Ltd. 2,734,631(3)(6) 75,000(4) 2,659,631(7) 14%(7)
Koch Investment Group 908,056(3)(6) 25,000(5) 883,056(7) 4.7%(7)
Limited
(1) Represents the number of shares issuable upon conversion of
the Series C Convertible Preferred Stock, including two years
of accrued dividends thereon, which dividends are payable at
our option in common stock, at the initial fixed conversion
price of $0.95$0.001 par value per share (the “Common Stock”), of Diffusion Pharmaceuticals Inc. (the “Company”). Of these shares, (a) 12,376,329 are issued and outstanding as well as the exercisea result of, warrants
issued to these stockholders in June 2000.
(2) In accordance with the Registration Rights Agreement between
us and Esquire and Celeste, the number of shares shown as
offered by this prospectus represents 200% of the number of
shares issuable upon conversion of the Series C Convertible
Preferred Stock as described in note (1) plus the shares
issuable upon exercise of the related warrants.
(3) Represents the number of shares held directly plus the number
of sharesor issuable upon, the conversion of the Company’s outstanding shares of Series A Convertibleconvertible preferred stock, $0.001 par value per share (the “Series A Preferred Stock at the initial fixed conversion price”), (b) 13,555,887 are issued and outstanding as a result of, $2.6812, including conversion of two years of accrued
dividends thereon, the conversion of Series B Convertible
Preferred Stock at the initial fixed conversion price of
$1.75, including conversion of two years of accrued dividends
thereon, and exercise of warrants issued in connection with
the Series A, Series B and Series C Convertible Preferred
Stock. The shares issuable upon conversion of the Series A
Convertible Preferred Stock and the Series A warrants were
previously registered for resale under the Securities Act of
1933 on Registration Statement No. 333-89171. The shares
issuable upon conversion of the Series B Convertible Preferred
Stock and the Series B warrants were previously registered for
resale under the Securities Act of 1933 on Registration
Statement
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No. 333-35400. The Series A and B Convertible Preferred Stock
and the Series A, Series B and Series C warrants contain a
4.9% beneficial ownership limitation similar to the limitation
applicable to the Series C Convertible Preferred Stock
described above.
(4) Represents sharesor issuable upon, the exercise of warrants issuedto purchase shares of Common Stock (the “Warrants”) and (c) an estimated 535,585 are issuable as payment of dividends accruing through October 1, 2017 with respect to the Series A Preferred Stock. The Selling Stockholders acquired all of the securities covered by this prospectus in connection with the Series C offering. Genesee
International, Inc., the investment manager of Advantage Fund
II Ltd., may be deemed to beneficially own the shares offered
by Advantage through its shared dispositive and voting power
over such shares. Mr. Donald R. Morken, the controlling
stockholder of Genesee International, may be deemed to control
the exercise by Genesee International of such shared
dispositive and voting power over such shares.
(5) Represents shares issuable upon the exercise of warrants
issueda private placement transaction in connection with the Series C offering. Koch
Industries, Inc., the indirect parent company of Koch
Investment Group Limited, may be deemed to beneficially own
the shares offered by Koch Investment Group Limited through
its shared dispositive and voting power over such shares.
Messrs. Charles Koch and David Koch, the majority stockholders
of Koch Industries, may be deemed to control the exercise by
Koch Industries of such shared dispositive and voting power
over such shares.
(6) The actual conversion price will be based on a formula
applicable to each series of Convertible Preferred Stock and
may be lower than the initial fixed rate. The actual number of
shares of common stock issuable upon the conversion of the
preferred stock and exercise of the warrants is therefore
subject to adjustment and could be materially more than the
number estimated in the table. This variation is due to
factors that cannot be predicted by us at this time. The most
significant of these factors is the future market price of our
common stock.
(7) These amounts are subject to the 4.9% beneficial ownership
limitation described in footnote (3).
As of the date of this prospectus, the selling stockholders do not hold
any other securities in Titan other than the shares being offered under this
prospectus, the Series A Convertible Preferred Stock, the Series B Convertible
Preferred Stock, the Series C Convertible Preferred Stock and the warrants
described above. None of the selling stockholders has had any material
relationship with us within the past three years.
DESCRIPTION OF SECURITIES
We are authorized to issue up to 90,000,000 shares of common stock and
10,000,000 shares of preferred stock. As of July 15, 2000, 18,769,303 shares of
common stock were issued and outstanding. Additionally, as of July 15, 2000, we
had outstanding options to purchase 1,285,000 shares of our common stock,
warrants to purchase 2,102,573 shares of our common stock, 3,973 shares of our
Series A Convertible Preferred Stock, 2,000 shares of our Series B Convertible
Preferred Stock and 1,300 shares of our Series C Convertible Preferred Stock.
Our Board of Directors has the authority, without further action by the
stockholders, to issue a total of up to 9,992,700 additional preferred shares in
one or more series and to fix the rights, preferences, privileges and
restrictions granted to or imposed upon any series of unissued preferred shares
and to determine the number of shares constituting any series and the
designation of the series, without any further vote or action by the
stockholders.
The following summary of certain provisions of the common stock and
preferred shares does not purport to be complete and is subject to, and is
qualified in its entirety by, our amended Articles of Incorporation, Restated
Bylaws, our Certificates of Designations with respect to our Series A, Series B
and Series C Convertible Preferred Stock, and by the provisions of applicable
law.
COMMON STOCK
The holders of our common stock are entitled to one vote per share on
all matters on which stockholders are entitled to vote. Subject to the rights of
holders of any class or series of shares, including preferred shares, having a
preference over the common stock as to dividends or upon liquidation, the
holders of our common stock
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are also entitled to dividends as may be declared by our Board of Directors out
of funds that are lawfully available, and are entitled upon liquidation to
receive pro rata the assets that are available for distribution to holders of
common stock. Holders of the common stock have no preemptive, subscription, or
conversion rights. The common stock is not subject to assessment and has no
redemption provisions.
SERIES A CONVERTIBLE PREFERRED STOCK
We have 3,973 shares of Series A Convertible Preferred Stock
authorized, issued and outstanding. The Series A Convertible Preferred Stock is
currently convertible at any time into a maximum of 3,429,400 shares of our
common stock (unless such limitation is waived by vote of the stockholders) at a
fixed conversion price of $2.6812, which represents the average market price of
our common stock for the ten days prior to the issuance of the Series A
Convertible Preferred Stock on September 17, 1999, the date we sold the Series A Convertible Preferred Stock. Commencing September 17, 2000,Stock and Warrants to accredited investors in closings conducted on March 14, 2017 and March 31, 2017 (or, as applicable, a subsequent donation, pledge or transfer thereof). We are registering the conversion price
will be adjusted every six months to be the lesser of (a) 130%resale or other disposition of the prior
conversion price or (b) 90%shares of Common Stock to satisfy registration rights we have granted to the Selling Stockholders.
Our registration of the average market price for the ten days prior
to such adjustment date. The conversion price is subject to further adjustment
under certain other circumstances, including our inability to provide the Series
A Convertible Preferred Stockholders with common stock certificates on a timely
basis after receiving notice of their conversion, and our failure to pay any
applicable redemption price when due. Upon an adjustment of the conversion
price, the number of shares into which the Series A Convertible Preferred Stock
may be converted is also adjusted. The number of shares of common stock
underlyingCommon Stock covered by this prospectus does not mean that the Series A Convertible Preferred Stock is also subject to
adjustment for stock splits, stock dividends, combinations, capital
reorganizations and similar events relating to our common stock.
Dividends at the rate of $60 per annum per share are payable in cashSelling Stockholders will offer or at our option, may be added to the value of the Series A Convertible
Preferred Stock subject to conversion and to the $1,000 per share liquidation
preference of the Series A Convertible Preferred Stock.
We have the right to redeem the Series A Convertible Preferred Stock at
a premium, and under some circumstances, at the market price of the common stock
into which the Series A Convertible Preferred Stock would otherwise be
convertible. The holders of the Series A Convertible Preferred Stock also have
the right to require us to redeem all or some of their Series A Convertible
Preferred Stock at a premium or at market under the following circumstances:
X there is no closing bid price reported for our common stock
for five consecutive trading days;
X our common stock ceases to be listed for trading on the Nasdaq
SmallCap Market;
X the holders of our Series A Convertible Preferred Stock are
unable, for 30 or more days (whether or not consecutive) to
sell their common stock issuable upon conversion of the Series
A Convertible Preferred Stock pursuant to an effective
registration statement;
X we default under any of the agreements relatingshares. The Selling Stockholders(including their donees, pledgees, transferees or other successors-in-interest) may, from time to the sale of
the Series A Convertible Preferred Stock;
X certain business combination events;
X the adoption of any amendment to our Articles of Incorporation
materially adverse to the holders of the Series A Convertible
Preferred Stock without the consent of the holders of a
majority of the Series A Convertible Preferred Stock; and
X the holders of the Series A Convertible Preferred Stock are
unable to convert all of their shares because of limitations
under exchangetime, resell or market rules that require stockholder
approval of certain stock issuances.
However, the holders of the Series A Convertible Preferred Stock have
agreed to amend the terms and conditions of the Series A Convertible Preferred
Stock through the filing of an amended and restated certificate of
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designations. The amendments will allow us to deliver a control notice to the
Series A holders against their delivery of a redemption notice if the event or
circumstances giving rise to the redemption notice were outside of our control.
The delivery of a control notice will permit us to adjust the conversion price
of the Series A Convertible Preferred Stock in lieu of redemption. Ultimately,
this will allow us to classify the Series A Convertible Preferred Stock as
equity rather than mezzanine instruments in accordance with generally accepted
accounting principles.
SERIES B CONVERTIBLE PREFERRED STOCK
We have 2,000 shares of Series B Convertible Preferred Stock
authorized, issued and outstanding. The Series B Convertible Preferred Stock is
currently convertible at any time into a maximum of 3,436,000 shares of our
common stock (unless such limitation is waived by vote of the stockholders) at a
fixed conversion price of $1.75 per share. Commencing March 9, 2001, the
conversion price will be adjusted every six months to be the lesser of (a) the
prior conversion price or (b) the average market price for the ten days prior to
such adjustment date. The conversion price is subject to further adjustment
under certain other circumstances, including our inability to provide the Series
B Convertible Preferred Stockholders with common stock certificates on a timely
basis after receiving notice of their conversion, and our failure to pay any
applicable redemption price when due. Upon an adjustment of the conversion
price, the number of shares into which the Series B Convertible Preferred Stock
may be converted is also adjusted. The number of shares of common stock
underlying the Series B Convertible Preferred Stock is also subject to
adjustment for stock splits, stock dividends, combinations, capital
reorganizations and similar events relating to our common stock.
Dividends at the rate of $60 per annum per share are payable in cash
or, at our option, may be added to the value of the Series B Convertible
Preferred Stock subject to conversion and to the $1,000 per share liquidation
preference of the Series B Convertible Preferred Stock.
We have the right to redeem the Series B Convertible Preferred Stock at
a premium, and under some circumstances, at the market price of the common stock
into which the Series B Convertible Preferred Stock would otherwise be
convertible. The holders of the Series B Convertible Preferred Stock also have
the right to require us to redeem all or some of their Series B Convertible
Preferred Stock at a premium or at market under the following circumstances:
X there is no closing bid price reported for our common stock
for five consecutive trading days;
X our common stock ceases to be listed for trading on the Nasdaq
SmallCap Market;
X the holders of our Series B Convertible Preferred Stock are
unable, for 30 or more days (whether or not consecutive) to
sell their common stock issuable upon conversion of the Series
B Convertible Preferred Stock pursuant to an effective
registration statement;
X we default under any of the agreements relating to the sale of
the Series B Convertible Preferred Stock;
X certain business combination events;
X the adoption of any amendment to our Articles of Incorporation
materially adverse to the holders of the Series B Convertible
Preferred Stock without the consent of the holders of a
majority of the Series B Convertible Preferred Stock; and
X the holders of the Series B Convertible Preferred Stock are
unable to convert all of their shares because of limitations
under exchange or market rules that require stockholder
approval of certain stock issuances.
However, the holders of the Series B Convertible Preferred Stock have
agreed to amend the terms and conditions of the Series B Convertible Preferred
Stock through the filing of an amended and restated certificate of designations.
The amendments will allow us to deliver a control notice to the Series B holders
against their delivery
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of a redemption notice if the event or circumstances giving rise to the
redemption notice were outside of our control. The delivery of a control notice
will permit us to adjust the conversion price of the Series B Convertible
Preferred Stock in lieu of redemption. Ultimately, this will allow us to
classify the Series B Convertible Preferred Stock as equity rather than
mezzanine instruments in accordance with generally accepted accounting
principles.
SERIES C CONVERTIBLE PREFERRED STOCK
We have 2,300 shares of Series C Convertible Preferred Stock
authorized, and 1,300 issued and outstanding. The Series C Convertible Preferred
Stock is currently convertible at any time into a maximum of approximately
3,500,000 shares of our common stock (unless such limitation is waived by vote
of the stockholders) at a fixed conversion price of $0.95. This represents
19.99% of the outstanding common stock of the Company, which is the maximum
number of shares of common stock the Company can issue under applicable NASD
rules unless such shareholder approval is obtained at an annual or special
meeting of stockholders. Commencing December 20, 2000, the conversion price is
adjusted every three months to be the lower of (a) 80% of the average market
price for the lowest three trading days during the last ten trading days prior
to the adjustment date and (b) either (i) the current conversion price if 80% of
the average market price is less than or equal to 200% of the current conversion
price, or (ii) $0.95 if 80% of the average market price is more than 200% of the
current conversion price. The number of shares of common stock underlying the
Series C Convertible Preferred Stock is subject to adjustment for stock splits,
stock dividends, capital reorganizations and similar events relating to our
common stock. Subject to the limit referred to above, the Series C Convertible
Preferred Stock converts automatically on the second anniversary of the date of
the date of issuance.
Following effectiveness of this registration statement we may compel
the conversiondispose of any or all of the outstanding Series C Convertible Preferred
Stock at the conversion price in effect if for any 20 consecutive trading days
both (a) the closing bid price of the common stock of the Company is greater
than $1.90 per share, and (b) the average daily trading volume of the common
stock is at least 50,000 shares per trading day.
However, in no event will the Series C Convertible Preferred
Stockholders be required to convert if the number of shares of common stock
issuable upon conversion would resultCommon Stock described in beneficial ownership by the Series C
Convertible Preferred Stockholder and its affiliates of more than 9.99% of the
outstanding shares of common stock of the Company.
Dividends at the rate of 5% per annum are payable quarterly or on
conversion of the Series C Convertible Preferred Stock in cash or, at our
option, in common stock of the Company based on the conversion rate in effect on
the relevant date.
Subject to certain restrictions in a subordination agreement with our
primary lender, Esquire and Celeste each have the right to require us to redeem
the Series C Convertible Preferred Stock at a premium upon the occurrence of any
of the following events:
1. The amount of common stock reserved for issuance upon
conversion of the Series C Convertible Preferred Stock is less
than 150% of the number of shares of common stock issuable
upon potential conversion of the Series C Convertible
Preferred Stock for 10 consecutive trading days and the
Company fails to increase the reserved amount above the 150%
threshold for 90 days thereafter;
2. The Company is unable to issue sufficient shares of common
stock upon conversion of the Series C Convertible Preferred
Stock as a result of Nasdaq Rule 4310(c)(25)(H)(i) or Rule
4460(i)(1); or
3. The Company is unable to timely deliver certificates
representing the common stock issuable on conversion of the
Series C Convertible Preferred Stock.
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WARRANTS
We also issued warrants in connection with the offering of our Series
A, Series B and Series C Convertible Preferred Stock. We issued warrants to
purchase 372,967 shares of common stock to the Series A Convertible Preferred
Stockholders, of which 300,000 have been exercised, warrants to purchase 250,000
shares of common stock to the Series B Convertible Preferred Stockholders, all
of which remain fully exercisable, and warrants to purchase 1,642,106 shares of
common stock to the Series C Convertible Preferred Stockholders, all of which
remain fully exercisable. We also issued warrants to purchase 250,000 shares of
common stock to Reedland Capital Partners and its designees as partial
compensation for their assistance in placing the Series A Convertible Preferred
Stock and warrants to purchase 12,500 shares to certain designees of Reedland
Capital Partners as partial compensation for their assistance in placing the
Series B Convertible Preferred Stock. These warrants remain fully exercisable.
The exercise price of the warrants associated with the Series A and Series B
transaction have been repriced to $1.00. The exercise price of the warrants
issued to the Series C Convertible Preferred Stockholders is $1.69 with respect
to five-sixths of the shares and $2.26 with respect to the balance of the shares
covered by the warrants. Finally, we issued warrants to purchase 100,000 shares
of common stock, at an exercise price of $1.69 per share, to the Series A and
Series B Convertible Preferred Stockholders in exchange for their waiver of
certain terms and conditions related to the Series C offering. These warrants,
representing in the aggregate the right to purchase 2,102,573 shares of common
stock, are the only warrants we currently have outstanding. The warrants
associated with the Series A transaction expire on September 17, 2004, the
warrants associated with the Series B transaction expire on March 9, 2005 and
the warrants associated with the Series C transaction expire on June 30, 2005.
In no event will holders of the Series C warrants be permitted to
exercise if the number of shares of common stock issuable upon exercise would
result in beneficial ownership by the holder and its affiliates of more than
9.99% of the outstanding shares of common stock of the Company. In no event will
holders of the Series A and Series B Convertible Preferred Stockholders be
permitted to exercise their warrants if the number of shares of common stock
issuable upon exercise would result in beneficial ownership by the holder and
its affiliates of more than 4.99% of the outstanding shares of common stock of
the Company.
The exercise price and number of shares of common stock issuable upon
exercise of the warrants held by the Series A, Series B and Series C Convertible
Preferred Stockholders are subject to adjustment in certain events, including
events of default that are similar to those described above.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for our common stock is Signature
Stock Transfer, Inc.
CHARTER PROVISIONS AND EFFECTS OF NEVADA LAW
Our Articles of Incorporation authorize our Board of Directors to issue
up to 10,0000,000 shares of preferred stock from time to time in one or more
designated series. Our Board of Directors, without approval of the stockholders,
is authorized to establish the voting powers, designations, preferences,
limitations, restrictions and relative rights of each series of preferred stock,
including voting powers, preferences and relative rights that may be superior to
our common stock. As of July 18, 2000, 4,000 shares of preferred stock had been
designated Series A Convertible Preferred Stock, of which 3,973 shares were
outstanding, 2,000 shares of preferred stock had been designated Series B
Convertible Preferred Stock, of which 2,000 shares were outstanding and 2,300
shares of preferred stock had been designated Series C Convertible Preferred
Stock, of which 1,300 shares were issued and outstanding.
Sections 78.3791 through 78.3793 of the Nevada Revised Statutes
generally apply to any acquisition of outstanding voting securities of an
issuing corporation which results in the acquiror owning more than 20% of the
issuing corporation's then outstanding voting securities. An issuing corporation
is any Nevada corporation with at least 200 stockholders, at least 100 of which
are stockholders of record and Nevada residents, and which conducts business in
Nevada.
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The securities acquired in a covered acquisition are denied voting
rights unless a majority of the security holders of the issuing corporation
approve the granting of voting rights. If permitted by the issuing corporation's
Articles of Incorporation or bylaws then in effect, voting securities acquired
in the covered acquisition are redeemable by the issuing corporation at the
average price paid for the securities by the acquiror if the acquiring person
has not given timely notice to the issuing corporation or if the stockholders of
the issuing corporation vote not to grant voting rights to the acquiring
person's securities.
Unless the issuing corporation's Articles of Incorporation or bylaws
then in effect provide otherwise, if the acquiring person acquired securities
having 50% or more of the voting power of the issuing corporation's outstanding
securities and the stockholders of the issuing corporation grant voting rights
to the acquiring person, then any stockholders of the issuing corporation who
voted against granting voting rights to the acquiring person may demand that the
issuing corporation purchase, for fair value, all or any portion of his
securities.
Our Articles of Incorporation and bylaws do not limit the effect of
these provisions.
PLAN OF DISTRIBUTION
The selling stockholders, their pledgees, donees, transferees or other
successors in interest may from time to time offer and sell all or a portion of
the shares in transactions on the Nasdaq SmallCap Market, orthis prospectus on any other
securitiesstock exchange, market or markettrading facility on which the common stock is listedshares are traded or traded, in private transactions. These sales may be at fixed or negotiated transactions or otherwise, at prices, then prevailing or relatedand may be to
the then-current market price or at negotiated prices. The selling stockholders
or their pledgees, donees, transferees or other successors in interest may sell
their shares directly or through underwriters, broker-dealers or agents, or broker-dealers acting as principal or
agent, or in block trades or pursuant to a distribution by one or more
underwriters on a firm commitment or best-efforts basis. To the extent required,
the names of any agent or broker-dealer and applicable commissions or discounts
and any other required information with respect to any particular offer will be
set forth in an accompanying prospectus supplement. Each of the selling
stockholders and their pledgees, donees, transferees or other successors in
interest reserves the right to accept or reject, in whole or in part, any
proposed purchase of the shares to be made directly or through agents.
Such broker-dealers, if any,who may receive compensation in the form of discounts, concessions or commissions. The Selling Stockholders will pay all underwriting discounts, commissions and any similar expenses it incurs, if any, in connection with the sale of the shares of Common Stock, and any related legal expenses incurred by it. We have agreed to pay certain expenses in connection with this registration statement and to indemnify the Selling Stockholders against certain liabilities. None of our shares of Common Stock may be sold without delivery of the applicable prospectus supplement describing the method and terms of the offering of the Common Stock. See “Plan of Distribution” beginning on page 19 for more information regarding the manners in which Selling Stockholders may sell or dispose of the securities registered hereby.
We are not selling any shares of Common Stock under this prospectus and will not receive any of the proceeds from the sale of shares of Common Stock by the Selling Stockholders. To the extent Warrants are exercised for cash, if at all, we will receive the exercise price thereof.
You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus carefully before you invest.
Our Common Stock is traded on the NASDAQ Capital Market under the symbol “DFFN.” On May 26, 2017, the last reported sale price of our Common Stock was $2.72 per share.
Investing in our Common Stock involves significant risks. See “Risk Factors” on page7 of this prospectus, in our most recent Annual Report on Form 10-K, any of our other filings with the Securities and Exchange Commission and in any applicable prospectus supplement. You should read this prospectus, any accompanying prospectus supplement, and the documents incorporated by reference herein and therein carefully before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the Common Stock being offered hereby or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus is dated _________, 2017
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS | 1 |
PROSPECTUS SUMMARY | 2 |
| THE OFFERING | 6 |
| RISK FACTORS | 7 |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS | 8 |
USE OF PROCEEDS | 9 |
THE SELLING STOCKHOLDERS | 10 |
PLAN OF DISTRIBUTION | 19 |
WHERE YOU CAN FIND MORE INFORMATION | 22 |
LEGAL MATTERS | 24 |
EXPERTS | 24 |
PART II Information Not Required in Prospectus | 25 |
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission, or the Commission, using a “shelf” registration process. Under this process, the Selling Stockholders may from time to time, in one or more offerings, sell the Common Stock described in this prospectus.
You should rely only on the information provided in this prospectus, the related prospectus supplement, including any information incorporated by reference, and any pricing supplement. No one is authorized to provide you with information different from that which is contained, or deemed to be contained, in the prospectus, the related prospectus supplement and any pricing supplement. The Selling Stockholders are not making offers to sell Common Stock in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the information in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date of the document in which the information is contained or other date referred to in that document, regardless of the time of sale or issuance of the Common Stock.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the Common Stock, you should refer to the registration statement including the exhibits. This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find Additional Information.” We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless otherwise specified or unless the context requires otherwise, all references in this prospectus to “Diffusion,” the “Company,” “we,” “us,” “our” or similar references mean Diffusion Pharmaceuticals Inc. and its subsidiaries on a consolidated basis.
We have registered trademarks for RestorGenex and Diffusion. All other trade names, trademarks and service marks appearing in this prospectus are the property of their respective owners. Use or display by us of other parties’ trademarks, trade dress or products is not intended to and does not imply a relationship with, or endorsements or sponsorship of, us by the trademark or trade dress owner.
PROSPECTUS SUMMARY
The following is a summary of what we believe to be the most important aspects of our business and the offering of our common stock under this prospectus. This summary does not contain all of the information that should be considered before investing in our common stock. Investors should read the entire prospectus carefully, including the risks related to our business and purchasing our common stock discussed under “Risk Factors” beginning on page 7 of this prospectus, “Special Notes Regarding Forward Looking Statements” and our financial statements and the notes to those financial statements incorporated by reference in this prospectus.
Diffusion Pharmaceuticals Inc.
Business Overview
We are a clinical stage biotechnology company focused on extending the life expectancy of cancer patients by improving the effectiveness of current standard-of-care treatments, including radiation therapy and chemotherapy. We are developing our lead product candidate,transcrocetinate sodium, also known astrans sodium crocetinate (“TSC”), for use in the many cancer types in which tumor oxygen deprivation (“hypoxia”) is known to diminish the effectiveness of current treatments. TSC is designed to target the cancer’s hypoxic micro-environment, re-oxygenating treatment-resistant tissue and making the cancer cells more susceptible to the therapeutic effects of standard-of-care radiation therapy and chemotherapy.
Our lead development programs target TSC against cancers known to be inherently treatment-resistant, including brain cancers and pancreatic cancer. A Phase 2 clinical program, completed in the second quarter of 2015, evaluated 59 patients with newly diagnosed glioblastoma multiforme (“GBM”). This open label, historically controlled study demonstrated a favorable safety and efficacy profile for TSC combined with standard of care, including a 37% improvement in overall survival over the control group at two years. A particularly strong efficacy signal was seen in the inoperable patients, where survival of TSC-treated patients at two years was increased by 380% over the controls. At an End-Of-Phase 2 Meeting, the U.S. Food and Drug Administration provided Diffusion with extensive guidance on the design for a Phase 3 trial of TSC in newly diagnosed, inoperable GBM patients. We believe focusing on the inoperable patient group in Phase 3 should reduce the needed number of patients from over 400 to around 230, which is expected to provide real cost savings, while the strength of the Phase 2 efficacy signal should make the showing of significant clinical gain in Phase 3 more likely. Assuming FDA sign-off on our final protocol design, focusing on the inoperable patients, the study is planned to initiate by the end of 2017. Due to its novel mechanism of action, TSC has safely re-oxygenated a range of tumor types in our preclinical and clinical studies. Diffusion believes its therapeutic potential is not limited to specific tumors, thereby making it potentially useful to improve standard-of-care treatments of other life-threatening cancers. Additional planned studies include a Phase 2 trial in pancreatic cancer and a study in brain metastases, with a study initiation subject to receipt of additional funding or collaborative partnering. We also believe that TSC has potential application in other indications involving hypoxia, such as neurodegenerative diseases and emergency medicine. For example, our stroke program is now in advanced discussions with doctors from UCLA and the University of Virginia, with whom we have established a joint team dedicated to developing a program to test TSC in the treatment of stroke, with an in-ambulance trial of TSC in stroke under consideration.
In addition to the TSC programs, we are exploring alternatives regarding how best to capitalize upon the legacy RestorGenex product candidate, RES-529, a novel PI3K/Akt/mTOR pathway inhibitor which has completed two Phase I clinical trials for age-related macular degeneration and was in preclinical development in oncology, specifically GBM. RES-529 has shown activity in both in vitro and in vivo glioblastoma animal models and has been demonstrated to be orally bioavailable and can cross the blood brain barrier.
Corporate Information
We are a Delaware corporation. We maintain our principal executive offices at 2020 Avon Court, Suite #4, Charlottesville, VA 22902. Our telephone number there is (434) 220-0718. The address of our website iswww.diffusionpharma.com. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus.
Summary of Private Placement
In March 2017, we conducted a private placement (the “Private Placement”), pursuant to which we issued 12,376,329 shares of the Series A Preferred Stock, initially convertible into one share of Common Stock, and 5-year warrants to purchase 12,376,329 shares of Common Stock at an exercise price equal to $2.22 per share (the “Investor Warrants”). The aggregate gross proceeds from the Private Placement were $25.0 million, prior to deducting placement agent fees and expenses payable by us. Maxim Merchant Capital, a division of Maxim Group LLC (“Maxim”), acted as our sole placement agent in the Private Placement. We issued to Maxim and its designees (who are included as Selling Stockholders) 5-year warrants, to purchase of 1,179,558 shares of Common Stock at an exercise price equal to $2.22 per share, with such warrants containing a cashless exercise provision (the “Maxim Warrants” and, together with the Investor Warrants, the “Warrants”). The securities were issued to accredited investors in reliance upon an exemption pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder. Please see “Description of Capital Stock” for a description of our Common Stock, Series A Preferred Stock and Warrants.
As part of the Private Placement, we entered into registration rights agreements with the investors in the Private Placement and Maxim (the “Registration Rights Agreement”), pursuant to which we agreed to file a registration statement to register for resale the shares of common stock (i) issued and outstanding as a result of, or issuable upon, the conversion of the shares of Series A Preferred Stock, (ii) issued and outstanding as a result of, or issuable upon, the exercise of the Warrants sold in the Private Placement and (iii) issuable as payment of dividends accruing on the Series A Preferred Stock. We are required to use our commercially reasonable best efforts to cause the registration statement to be declared effective under the Securities Act, as soon as practicable, but in no event later than 120 days after the final closing of the Private Placement, which occurred on March 31, 2017 (the “Final Closing”). We agreed to keep the registration statement effective until the earlier of (i) 66 months after the Final Closing or (ii) all registrable securities may be sold pursuant to Rule 144 under the Securities Act or another similar exemption under the Securities Act. We also agreed, among other things, to indemnify the investors under the registration statement from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration Rights Agreement.
Series A Convertible Preferred Stock
Voting. The holders of the Series A Preferred Stock will be entitled to vote with the holders of Common Stock (and any other class or series that may similarly be entitled to vote with the holders of Common Stock as the Board may authorize and issue) and not as a separate class, at any annual or special meeting of stockholders of the Company, and may act by written consent in the same manner as the holders of Common Stock. In the event of any such vote or action by written consent, each holder of shares of Series A Preferred Stock shall be entitled to that number of votes equal to the whole number of shares of Common Stock into which the aggregate number of shares of Series A Preferred Stock held of record by such holder are convertible as of the close of business on the record date fixed for such vote or such written consent based on a conversion price, solely for such purpose, equal to the closing price of our Common Stock on the date such Series A Preferred Stock was issued. In addition, for as long as 50% of the shares of Series A Preferred Stock outstanding immediately after the final closing remain outstanding, without the consent of holders of at least a majority of the then outstanding shares of Series A Preferred Stock, we may not (a) amend our amended and restated certificate of incorporation (the “Certificate of Incorporation”) and amended and restated bylaws (the “Bylaws”)so as to materially and adversely affect any rights of the holders of the Series A Preferred Stock, (b) increase or decrease (other than by conversion of the Series A Preferred Stock) the authorized number of Series A Preferred Stock to be in excess of the number of shares required to satisfy the maximum offering amount of the Private Placement, (c) amend the Certificate of Designation of Preferences, Rights and Limitations of the Series A Convertible Preferred Stock of Diffusion Pharmaceuticals Inc. (the “Certificate of Designation”), (d) repay, repurchase or offer to repay, repurchase or otherwise acquire more than ade minimis number of shares of Common Stock or Common Stock equivalents or (e) enter into any agreement or understanding with respect to (a) through (d).
Dividends. The Series A Preferred Stock will be entitled to an 8.0% cumulative preferred dividend payable semi-annually in shares of Common Stock that will begin accruing on the issue date of the Series A Preferred Stock. The dividend will begin to accrue and be cumulative on the first day of each applicable dividend period and shall remain accumulated dividends with respect to such Series A Preferred Stock until paid; provided, that the first dividend payable with respect to any share of Series A Preferred Stock shall not begin to accrue until the date of original issuance of such share of Series A Preferred Stock. Dividends shall accrue whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends but shall not be payable until legally permissible, as applicable.
Liquidation. The Series A Preferred Stock will rank senior to the Common Stock and each other class of capital stock of the Company or series of Series A Preferred Stock of the Company authorized by the Board in the future that does not expressly provide that such class or series ranks senior to, or on parity with, the Series A Preferred Stock (“Junior Securities”). In the event of a Liquidation Event (as defined in the Certificate of Designation), the holders of the Series A Preferred Stock shall be entitled to receive, out of the assets of the Company or proceeds thereof legally available therefor, an amount in cash equal to 100% of the stated value of the Series A Preferred Stock before any payment or distribution of the assets of the Company is made or set apart for the holders of Junior Securities. In addition, prior to such Liquidation Event, the holders of Series A Preferred Stock shall be entitled to notice so that they may exercise their conversion rights prior to such event. If, upon the occurrence of any Liquidation Event, the assets of the Company, or proceeds thereof, distributable after payment in full of our creditors and any securities senior to the Series A Preferred Stock shall be insufficient to pay in full the aggregate amount of 100% of the stated value to the holders of the Series A Preferred Stock, the assets of the Company, or the proceeds thereof, shall be distributed ratably among the holders of any Series A Preferred Stock and the holders of any security ranked equally with the Series A Preferred Stock.
Conversion Rate: Each share of Series A Preferred Stock is convertible into a share of Common Stock at a conversion price equal to the $2.02, subject to adjustment as provided in the Certificate of Designation and summarized herein (the “Conversion Price”), at any time after the final closing date at the holder’s sole and absolute discretion. Holders may immediately convert their Series A Preferred Stock prior to the occurrence of certain Liquidation Events. Each share of Series A Preferred Stock will automatically convert, initially, into a share of Common Stock (a) on any date that is more than thirty (30) trading days after the original issued date of such share Series A Preferred Stock that the 30 day moving average of the closing price of the Common Stock on the NASDAQ Capital Market (or any other exchange where the Common Stock is traded) exceeds $8.00 per share (subject to adjustment in the event of a stock dividend or split), (b) upon a financing of at least $10 million or (c) upon the majority vote of the voting power of the then outstanding shares of Series A Preferred Stock. We are not required to issue any fractional shares of Series A Preferred Stock or Common Stock in connection with the conversion of Series A Preferred Stock and may, in each case, at our discretion, pay the holder such amount in cash or deliver an additional whole share in lieu thereof.
Limitations of Conversion: The number of shares of Common Stock issuable upon a conversion of the Series A Preferred Stock that may be acquired by a holder shall be limited to the extent necessary to ensure that, following such conversion (or other issuance), the total number of shares of Common Stock then beneficially owned by such holder and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Exchange Act, does not exceed 4.99% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such conversion). However, any holder may increase or decrease such percentage to any other percentage not in excess of 9.99% of the total number of shares of Common Stock then issued and outstanding provided that such increase in percentage shall not be effective until sixty-one (61) days after notice to the Company.
Dilution Protection. In the event we, at any time after the first date of issue of the Series A Preferred Stock and while at least one share of Series A Preferred Stock is outstanding: (a) pay a dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of the Series A Preferred Stock or any debt securities), (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (d) issue by reclassification of shares of Common Stock any shares of capital stock of the Company, then in each case the conversion price shall be multiplied by a fraction of which (x) the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and (y) the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this section shall become effective immediately after the effective date of the applicable event described in subsections (a) through (d) above.
Make-Whole Adjustment. In the event we, during the three years immediately following the Initial Closing, subject to certain exceptions, issue in an offering at least $10 million of Common Stock or securities convertible into or exercisable for Common Stock at a per share price less than $2.02 (the “Make-Whole Price”), we will be required to issue to the holders of Series A Preferred Stock a number of shares of Common Stock equal to the additional number of shares of Common Stock that such shares of Series A Preferred Stock would be convertible into if the conversion price of the Series A Preferred Stock was equal to 105% of the Make-Whole Price (the “Make-Whole Adjustment”). We are only obligated to issue shares with respect to a Make-Whole Adjustment in the first such subsequent offering, if any, following the Private Placement.
Warrants Issued in the Private Placement
As of May 5, 2017 there were 13,555,887 Warrants issued and outstanding. The Warrants have an exercise price $2.22 per share, are immediately exercisable and are subject to customary anti-dilution adjustments. The Warrants are exercisable until March 31, 2022. The Warrants are subject to a provision prohibiting the exercise of such Warrants to the extent that, after giving effect to such exercise, the holder of such Warrant (together with the holder’s affiliates, and any other persons acting as a group together with the holder or any of the holder’s affiliates), would beneficially own in excess of 19.99% of the outstanding Common Stock. In addition, the Maxim Warrants contain a cashless exercise provision.
THE OFFERING
Selling Stockholders | Accredited investors who purchased shares of Series A Preferred Stock and Warrants the Private Placement conducted in March 2017, the placement agent for the Private Placement, Maxim, and its designees, and their respective donees, pledges, transferees and other successors-in-interest. | |
Common Stock offered by the Selling Stockholders | Subject to adjustment, up to 26,467,801 shares of Common Stock, which includes (a) 12,376,329 shares issued and outstanding as a result of, or issuable upon, the conversion of the Series A Preferred Stock, (b) 13,555,887 shares issued and outstanding as a result of, or issuable upon, the exercise of the Warrants and (c) an estimated 535,585 issuable as payment of dividends accruing through October 1, 2017 with respect to the Series A Preferred Stock. | |
Use of proceeds | We are not selling any shares of Common Stock under this prospectus and will not receive any of the proceeds from the sale of shares of Common Stock by the Selling Stockholders. To the extent Warrants are exercised for cash, we will receive the exercise price thereof. | |
Risk factors | Investing in our Common Stock involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus, and any other risk factors described in the documents incorporated by reference in this prospectus or in any accompanying prospectus supplement, for a discussion of factors that you should carefully consider before deciding to invest in our Common Stock. | |
NASDAQ Capital Market symbol | DFFN |
RISK FACTORS
Investing in our Common Stock involves a high degree of risk. Prior to making any decision to invest in our securities, you should carefully consider the information contained or incorporated by reference in this prospectus or in any accompanying prospectus supplement, including, without limitation, the risks described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, which is incorporated herein by reference, the risk factors described under the caption “Risk Factors” in any applicable prospectus supplement and any risk factors set forth in our other filings with the Commission, pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, before making an investment decision. The occurrence of any of these risks might cause you to lose all or a part of your investment in the offered securities. See “Where You Can Find More Information.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and the documents incorporated by reference herein contain forward-looking statements within the meaning of Section 21E of the Exchange Act and Section 27A of the Securities Act, and are subject to the safe harbor created by those sections. We have identified some of these forward-looking statements with words like “believe,” “may,” “could,” “would,” “might,” “possible,” “potential,” “will,” “should,” “expect,” “intend,” “plan,” “predict,” “anticipate,” “estimate” and “continue”, the negative of these words, other words and terms of similar meaning and the use of future dates. Forward-looking statements involve risks and uncertainties. These uncertainties include factors that affect all businesses as well as matters specific to us. Forward-looking statements by their nature address matters that are, to different degrees, uncertain. Uncertainties and risks may cause our actual results to be materially different than those expressed in or implied by our forward-looking statements. For us, particular uncertainties and risks include, among others, our history of operating losses and negative cash flow, uncertainties regarding clinical testing, the difficulty of developing pharmaceutical products, obtaining regulatory and other approvals and achieving market acceptance and other risks and uncertainties described in our filings with the Commission, including:
● | our estimates regarding expenses, future revenues, capital requirements and needs for additional financing; |
● | our ability to continue as a going concern; |
● | the success and timing of our preclinical studies and clinical trials; |
● | the difficulties in obtaining and maintaining regulatory approval of our products and product candidates, and the labeling under any approval we may obtain; |
● | our plans and ability to develop and commercialize our product candidates; |
● | our failure to recruit or retain key scientific or management personnel or to retain our executive officers; |
● | the accuracy of our estimates of the size and characteristics of the potential markets for our product candidates and our ability to serve those markets; |
● | regulatory developments in the United States and foreign countries; |
● | the rate and degree of market acceptance of any of our product candidates; |
● | our ability to obtain additional financing; |
● | obtaining and maintaining intellectual property protection for our product candidates and our proprietary technology; |
● | our ability to operate our business without infringing the intellectual property rights of others; |
● | recently enacted and future legislation regarding the healthcare system; |
● | the success of competing products that are or become available; and |
● | the performance of third parties, including contract research organizations and manufacturers. |
All forward-looking statements in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein speak only as of the date of this prospectus or any applicable prospectus supplement and are based on our current beliefs and expectations. We undertake no obligation to update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as otherwise required by law.
USE OF PROCEEDS
We will receive no proceeds from the sale of the Common Stock by the Selling Stockholders. To the extent Warrants are exercised for cash, we will receive the exercise price thereof.
The Selling Stockholders will pay any underwriting discounts and commissions and any similar expenses they incur in disposing of the Common Stock, if any, and any related legal expenses incurred by them. We will bear all other costs, fees and expenses incurred in effecting the registration of the Common Stock covered by this prospectus, including all registration and filing fees, fees and expenses of compliance with securities or “blue sky” laws, listing application fees, printing expenses, transfer agent’s and registrar’s fees, costs of distributing prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of counsel for the Company and all independent certified public accountants and other persons retained by the Company.
THE SELLING STOCKHOLDERS
This prospectus relates to the resale or other disposition from time to time by the Selling Stockholders identified herein (including their donees, pledgees, transferees or other successors-in-interest) of, subject to adjustment, up to26,467,801shares of Common Stock. Of these shares, (a) 12,376,329 are issued and outstanding as a result of, or issuable upon, the conversion of the Series A Preferred Stock, (b) 13,555,887 are issued and outstanding as a result of, or issuable upon, the exercise of the Warrants (including the Maxim Warrants) and (c) an estimated 535,585 are issuable as payment of dividends accruing through October 1, 2017 with respect to the Series A Preferred Stock. We entered into subscription agreements on March 14, 2017 and March 31, 2017 for the sale of an aggregate of 12,376,329 shares of the Series A Preferred Stock for aggregate gross proceeds of approximately $25.0 million in the Private Placement to the investors therein. In addition, each such investor received a Warrant to purchase one share of Common Stock for each share of Series A Preferred Stock purchased by such investor in the Private Placement. In connection with the Private Placement, we entered into the Registration Rights Agreement with such investors. The filing of the registration statement of which this prospectus is a part is pursuant to our obligations to register the shares of Common Stock on behalf of the Selling Stockholders under the Registration Rights Agreement. All expenses incurred with the registration of the Common Stock owned by the Selling Stockholders will be borne by us. This prospectus will not cover subsequent sales of Common Stock purchased from a Selling Stockholder named in this prospectus.
We cannot predict when or whether any of the Selling Stockholders will convert their Series A Preferred Stock or exercise their Warrants and even if they do, we do not know how long the Selling Stockholders will hold the shares of Common Stock acquired upon conversion or exercise, as applicable, before selling them, and we currently have no agreements, arrangements or understandings with the Selling Stockholders regarding the sale or other disposition of any of the shares. The shares of Common Stock covered hereby may be offered from time to time by the Selling Stockholders.
Furthermore, we do not know when or in what amounts the Selling Stockholders may sell or otherwise dispose of the shares covered hereby. The Selling Stockholders might not sell any or all of the shares covered by this prospectus or may sell or dispose of some or all of the shares other than pursuant to this prospectus. Because the Selling Stockholders may not sell or otherwise dispose of some or all of the shares covered by this prospectus and because there are currently no agreements, arrangements or understandings with respect to the sale or other disposition of any of the shares, we cannot estimate the number of the shares that will be held by the Selling Stockholders after completion of the offering. For purposes of the table below, we have assumed that the Selling Stockholders will have sold all of the shares covered by this prospectus upon completion of the applicable offering.
The table below presents information regarding the Selling Stockholders and the shares of our Common Stock that they may sell or otherwise dispose of from time to time under this prospectus. The percentage of beneficial ownership is based upon 10,345,637 shares of Common Stock issued and outstanding as of May 5, 2017. Beneficial ownership is determined under Section 13(d) of the Exchange Act and generally includes voting or investment power with respect to securities and includes any securities that grant the Selling Stockholders the right to acquire Common Stock within 60 days of May 5, 2017. Information in the table below is based on information provided by or on behalf of the Selling Stockholders. Since the date on which they provided us with the information below, the Selling Stockholders may have sold, transferred or otherwise disposed of some or all of the shares in transactions exempt from the registration requirements of the Securities Act.
Name of Selling Stockholders(1) | Shares of Common Stock Before this Offering(2) | Estimated Shares of Common Stock to be Issuable as Dividends on the Series A Preferred Stock at 10/1/2017 | Number of Shares of Common Stock Being Offered Pursuant to this Prospectus(3) | Shares of Common Stock Beneficially To Be Owned Upon Completion of this Offering(4) | ||||||||||||||||||||
Number | Percentage(5) | Number | Number | Number | Percentage(5) | |||||||||||||||||||
ABG – USL1 Limited(6) | 1,127,182 | 9.9 | % | 21,210 | 970,892 | 177,500 | 1.7 | % | ||||||||||||||||
ACNYC, LLC | 607,550 | 4.6 | % | 11,056 | 506,106 | 112,500 | 1.1 | % | ||||||||||||||||
Adam Lipson | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Adam T Drobot & Lucy S. Drobot JT Ten | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Adolfo Carmona & Donna Carmona JT TEN | 93,170 | * | 1,857 | 85,027 | 10,000 | * | ||||||||||||||||||
Advanced Ambulatory ANES LLC Defined Benefit Plan | 272,526 | 2.6 | % | 5,528 | 253,054 | 25,000 | * | |||||||||||||||||
Albert Gentile & Heidi Lyn Gentile JT TEN | 41,604 | * | 884 | 40,488 | 2,000 | * | ||||||||||||||||||
Alva Terry Staples | 24,952 | * | 557 | 25,509 | — | — | ||||||||||||||||||
Alyson D. Schlosser | 37,154 | * | 774 | 35,428 | 2,500 | * | ||||||||||||||||||
Andrew Schwartzberg | 455,446 | 4.2 | % | 9,311 | 464,757 | — | — | |||||||||||||||||
Andy Entertainment Limited | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Angelo Moesslang & Monika Moesslang JT TEN | 69,308 | * | 1,548 | 70,856 | — | — | ||||||||||||||||||
Anthony Daulerio | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
AR Properties C/O Dennis Repp | 300,196 | 2.9 | % | 3,354 | 153,550 | 150,000 | 1.4 | % | ||||||||||||||||
Arnold E. Spangler | 101,510 | * | 2,211 | 101,221 | 2,500 | * | ||||||||||||||||||
Arnold T Hagler Separate Trust U/A/D 9/17/97 Arnold T Hagler TTEE | 27,754 | * | 553 | 25,307 | 3,000 | * | ||||||||||||||||||
Barclay Armitage | 89,160 | * | 1,880 | 86,040 | 5,000 | * | ||||||||||||||||||
Ben Crown | 208,020 | 1.3 | % | 4,422 | 202,442 | 10,000 | * | |||||||||||||||||
Benjamin King | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Benjamin L. Padnos | 160,398 | 1.5 | % | 3,279 | 163,677 | — | — | |||||||||||||||||
Benjamin R. Hasty | 27,254 | * | 506 | 25,260 | 2,500 | * | ||||||||||||||||||
BES Investments, LLC | 133,812 | 1.3 | % | 2,653 | 121,465 | 15,000 | * | |||||||||||||||||
Bigger Capital Fund, L.P. | 247,600 | 2.3 | % | 5,062 | 252,662 | — | — | |||||||||||||||||
Bowling Family Trust | 55,446 | * | 1,238 | 56,684 | — | — | ||||||||||||||||||
Bradley Cuvelier | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Brian Potiker Revocable Trust UAD 8/7/96 Brian Potiker TTEE | 62,006 | * | 1,012 | 50,518 | 12,500 | * | ||||||||||||||||||
Bruce D. Goethe & Laura K. Goethe COMM PROP WROS | 30,224 | * | 619 | 28,343 | 2,500 | * | ||||||||||||||||||
Bruce Inglis & Nancy Inglis JT TEN | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Bryan Ezralow 1994 Trust UTD 12/22/1994 U/A/D 12/22/94 Bryan Ezralow TTEE AMD 12/01/12 | 198,020 | 1.9 | % | 4,422 | 202,442 | — | — | |||||||||||||||||
C. Barnes Darwin II | 99,110 | * | 1,990 | 91,100 | 10,000 | * | ||||||||||||||||||
Carleen Tufo DTD 2/21/2017 | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Charles Brinkley | 27,254 | * | 506 | 25,260 | 2,500 | * | ||||||||||||||||||
Chitayat Holdings, LLC | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Ciro Giuseppe Randazzo | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
CJ Biotech II, LLC | 222,774 | 2.1 | % | 4,554 | 227,328 | — | — | |||||||||||||||||
Clay Struve | 109,010 | 1.0 | % | 2,211 | 101,221 | 10,000 | * | |||||||||||||||||
Craig Geers | 38,154 | * | 708 | 35,362 | 3,500 | * | ||||||||||||||||||
Daniel P. Petro | 32,254 | * | 553 | 25,307 | 7,500 | * | ||||||||||||||||||
David Abel | 29,704 | * | 663 | 30,367 | — | — | ||||||||||||||||||
David Abraham & Joann Abraham JT TEN | 133,714 | 1.2 | % | 2,875 | 131,589 | 5,000 | * | |||||||||||||||||
David D. Shively Rev Wealth Preservation Trust UAD 7/21/04 David D. Shively TTEE | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
David E. Schwartz | 83,708 | * | 1,548 | 70,856 | 14,400 | * | ||||||||||||||||||
David E.I. Pyott Revocable Living Trust U/A/D 4/18/14 David E.I. Pyott TTEE | 495,050 | 4.6 | % | 10,121 | 505,171 | — | — | |||||||||||||||||
David Frydrych | 505,546 | 4.7 | % | 9,109 | 454,655 | 60,000 | * | |||||||||||||||||
David G. Schmidt | 1,169,643 | 10.6 | % | 14,373 | 657,939 | 526,077 | 4.9 | % | ||||||||||||||||
David Pouland | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
David R. Victor Revocable Trust UAD 3/29/00 David R. Victor TTEE | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
David S. Nagelberg 2003 Rev TR U/A/D 07/02/03 David S. Nagelberg TTEE A/M/D 12/11/07 | 247,526 | 2.3 | % | 5,528 | 253,054 | — | — | |||||||||||||||||
David Schneider | 218,020 | 2.1 | % | 4,422 | 202,442 | 20,000 | * | |||||||||||||||||
David Y. Norton | 49,704 | * | 663 | 30,367 | 20,000 | * | ||||||||||||||||||
David Young & Karen Plaisance JT TEN | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Dennis Shasha | 114,010 | 1.1 | % | 2,211 | 101,221 | 15,000 | * | |||||||||||||||||
DJ&J, LLC | 218,020 | 2.1 | % | 4,422 | 202,442 | 20,000 | * | |||||||||||||||||
Dominick Abel TOD | 38,154 | * | 774 | 35,428 | 3,500 | * | ||||||||||||||||||
Donald E. Hinkle | 32,664 | * | 662 | 30,326 | 3,000 | * | ||||||||||||||||||
Donald Sesterhenn | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Douglas J. Gold | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Dyke Rogers | 207,920 | 2.0 | % | 4,422 | 202,442 | 9,900 | * | |||||||||||||||||
E.L. Property Trust UAD 7/01/83 Robert C. Kopple TTEE | 990,100 | 8.7 | % | 22,112 | 1,012,212 | — | — | |||||||||||||||||
Edgar D. Jannotta JR Exempt Family Trust U/A/D 10/02/1998 Erika Pearsall TTEE | 247,526 | 2.3 | % | 5,061 | 252,587 | — | — | |||||||||||||||||
Eldar Investments, LLC | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Elevado Investments Company, LLC | 208,020 | 2.0 | % | 4,422 | 202,442 | 10,000 | * | |||||||||||||||||
Eric Prescott Campbell | 44,556 | * | 911 | 45,467 | — | — | ||||||||||||||||||
Erick Richardson | 148,516 | 1.4 | % | 3,036 | 151,552 | — | — | |||||||||||||||||
Ernest W. Moody Revocable Trust U/A/D 01/14/09 Ernest W. Moody TTEE | 1,215,100 | 10.7 | % | 20,242 | 1,010,342 | 225,000 | 2.1 | % | ||||||||||||||||
EZ Colony Partners, LLC | 208,020 | 2.0 | % | 4,422 | 202,442 | 10,000 | * | |||||||||||||||||
EZ MM & B Holdings, LLC | 208,020 | 2.0 | % | 4,422 | 202,442 | 10,000 | * | |||||||||||||||||
G. Jan Van Heek | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Garfinkle Revocable Trust UAD 5/15/08 Morris Garfinkle & Stephanie Garfinkle TTEES | 106,510 | 1.0 | % | 2,211 | 101,221 | 7,500 | * | |||||||||||||||||
Gary M. Ferman | 35,625 | * | 613 | 30,613 | 5,625 | * | ||||||||||||||||||
Gary W. Jaster | 55,446 | * | 1,238 | 56,684 | — | — | ||||||||||||||||||
Graham Burton | 990,100 | 8.7 | % | 20,242 | 1,010,342 | — | — | |||||||||||||||||
Graham R. Smith | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Greenway Capital, L.P. | 198,020 | 1.9 | % | 4,048 | 202,068 | — | — | |||||||||||||||||
Gregory L. Storm | 123,764 | 1.2 | % | 2,530 | 126,294 | — | — | |||||||||||||||||
Henry Herzing Revocable Living Trust U/A/D 10/27/93 Henry Herzing TTEE AMD 05/22/00 | 475,842 | 4.4 | % | 9,287 | 425,129 | 60,000 | * | |||||||||||||||||
Howard J. Worman | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
IRA FBO Kristian Weinman Pershing LLC as Custodian Roth | 20,000 | * | 409 | 20,409 | — | — | ||||||||||||||||||
IRA FBO Marhsall S Ezralow Pershing LLC as Custodian Roth Account | 208,020 | 2.0 | % | 4,422 | 202,442 | 10,000 | ||||||||||||||||||
IRA FBO Robin J. Steele Pershing LLC as Custodian Rollover Account | 99,010 | * | 2,024 | 101,034 | — | — | ||||||||||||||||||
IRA FBO Stephen R. Meyer Pershing LLC as Custodian Rollover Account | 98,110 | * | 1,990 | 91,100 | 9,000 | * | ||||||||||||||||||
IRA FBO Steven Yost Pershing LLC as Custodian Roth Conversion Account #2 | 29,664 | * | 662 | 30,326 | — | — |
IRA FBO: Peter J. Spengler Pershing LLC as Custodian | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
IRA FBO: Roger L. Hawley Pershing LLC as Custodian | 198,020 | 1.9 | % | 4,422 | 202,442 | — | — | |||||||||||||||||
Irrevocable Aloha Trust UAD 5/1/02 Marianne Schmitt Hellauer TTEE | 198,020 | 1.9 | % | 4,422 | 202,442 | — | — | |||||||||||||||||
Irwin Blitt Revocable Trust UAD 1/28/78 Irwin Blitt TTEE AMD 1/11/07 | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Isymax Corp | 22,000 | * | 491 | 22,491 | — | — | ||||||||||||||||||
Jack Cavin Holland 1979 Trust U/A/D 2/14/79 Jack Cavin Holland TTEE | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
Jack R. Frank II | 27,254 | * | 506 | 25,260 | 2,500 | * | ||||||||||||||||||
Jacob D. Wiznitzer | 34,654 | * | 708 | 35,362 | — | — | ||||||||||||||||||
James A. Kluge | 31,754 | * | 553 | 25,307 | 7,000 | * | ||||||||||||||||||
James B. and Karen A Glavin Family Trust U/A/D 10/30/98 James B. and Karen A. Glavin TTEES | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
James Diasio | 33,724 | * | 619 | 28,343 | 6,000 | * | ||||||||||||||||||
James F. Winschel, JR | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
James L. Dritz | 36,496 | * | 681 | 31,177 | 6,000 | * | ||||||||||||||||||
James L. Payne & Arlene H. Payne TEN COMM | 247,526 | 2.3 | % | 5,528 | 253,054 | — | — | |||||||||||||||||
James R. Hollingshead and Amita Hollingshead Revocable Living Trust 5/30/08 James and Amita Hollingshead TTEES | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
James W. Thomas | 11,402 | * | 202 | 10,104 | 1,500 | * | ||||||||||||||||||
Jason Schmidt | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Jay & Jennifer Ferguson JT TEN | 99,010 | * | 2,024 | 101,034 | — | — | ||||||||||||||||||
Jayant Aphale | 99,010 | * | 2,024 | 101,034 | — | — | ||||||||||||||||||
Jeff Kurtz | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Jeffrey & Margaret Padnos 2010 Generation Trust F/B/O Benjamin Padnos | 50,000 | * | 1,022 | 51,022 | — | — | ||||||||||||||||||
Jeffrey Bacha | 24,750 | * | 506 | 25,256 | — | — | ||||||||||||||||||
Jeffrey S. Padnos & Margaret Mais Padnos JT TEN | 100,000 | * | 2,044 | 102,044 | — | — | ||||||||||||||||||
Jeffrey Wren & Shannon Wren TEN COMM | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Joel L. Hochman Revocable Trust UAD 12/08/94 Joel L. Hochman TTEE | 81,758 | * | 1,658 | 75,916 | 7,500 | * | ||||||||||||||||||
Joel Yanowitz | 19,802 | * | 405 | 20,207 | — | — |
John Florsheim | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
John Ford | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
John V. Wagner | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Jonathan Gilliland | 29,802 | * | 405 | 20,207 | 10,000 | * | ||||||||||||||||||
Jonathan Patronik | 25,600 | * | 470 | 23,470 | 2,600 | * | ||||||||||||||||||
Joshua Gregg Berkowitz | 148,516 | 1.4 | % | 3,317 | 151,833 | — | — | |||||||||||||||||
Juan Carlos Alzate Tejada | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Juli-Ann Cialone | 15,248 | * | 341 | 15,589 | — | — | ||||||||||||||||||
Karen Shasha | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Keith Gelles | 163,516 | 1.6 | % | 3,317 | 151,833 | 15,000 | * | |||||||||||||||||
Keller Enterprises, LLC | 695,050 | 6.4 | % | 10,121 | 505,171 | 200,000 | 1.9 | % | ||||||||||||||||
Kenmont Capital Private Equity Partners III | 148,516 | 1.4 | % | 3,317 | 151,833 | — | — | |||||||||||||||||
Kenneth F. Buechler Trust 9/24/2007 UAD 9/24/07 Kenneth F. Buechler TTEE | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Kevin Gabrik | 19,802 | * | 405 | 20,207 | — | — | ||||||||||||||||||
Lambda IV, LLC | 247,526 | 2.3 | % | 5,528 | 253,054 | — | — | |||||||||||||||||
Leonite Capital, LLC | 74,258 | * | 1,518 | 75,776 | — | — | ||||||||||||||||||
Leslie Rudes Grandchildren Trust UAD 2/27/03 Lis Rudes Sandel TTEE | 260,026 | 2.5 | % | 5,061 | 252,587 | 12,500 | * | |||||||||||||||||
Leipman Trust UAD 5/08/1984 Holger A Liepmann & Loraine Liepmann TTEES AMD 4/22/12 | 44,556 | * | 957 | 45,513 | — | — | ||||||||||||||||||
Lisa Rudes Grandchildren Trust UAD 2/13/03 Lis Rudes Sandel TTEE | 260,026 | 2.5 | % | 5,060 | 252,586 | 12,500 | * | |||||||||||||||||
Loeb Holding Corporation | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Louis Vigden | 109,010 | * | 2,024 | 101,034 | 10,000 | * | ||||||||||||||||||
Lundring Family Trust U/A/D 2/13/02 Eric Lundring and Lori Yost Lundring TTEES | 29,704 | * | 663 | 30,367 | — | — | ||||||||||||||||||
Mai 2, LLC | 346,536 | 3.2 | % | 7,739 | 354,275 | — | — | |||||||||||||||||
Marc Cohen | 39,904 | * | 774 | 35,428 | 5,250 | * | ||||||||||||||||||
Marc R. Jalbert | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Mark Grinbaum and Tatyana Grinbaum JT TEN | 74,308 | * | 1,548 | 70,856 | 5,000 | * | ||||||||||||||||||
Mark H. Rubin | 64,358 | * | 1,316 | 65,674 | — | — | ||||||||||||||||||
Mark Ravich | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Marsha K. Ederer | 74,258 | * | 1,518 | 75,776 | — | — | ||||||||||||||||||
Mayhar Eidgah | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Maxim Merchant Capital(7) | 1,377,695 | 4.9 | % | — | 1,179,558 | 198,137 | 1.9 | % | ||||||||||||||||
Michael Cohn & Paula Cohn JT TEN | 27,452 | * | 557 | 25,509 | 2,500 | * | ||||||||||||||||||
Michael P. Ross | 203,020 | 1.9 | % | 4,422 | 202,442 | 5,000 | * | |||||||||||||||||
Monte D. Anglin & Janet S. Anglin JT TEN | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Neil H. Wasserman | 29,704 | * | 663 | 30,367 | — | — | ||||||||||||||||||
OSI Holdings, LLC | 29,754 | * | 553 | 25,307 | 5,000 | * | ||||||||||||||||||
OSPREY I, LLC | 81,758 | * | 1,658 | 75,916 | 7,500 | * | ||||||||||||||||||
Panella Living Trust U/A/D 05/11/04 Joseph Panella and Pan Panella TTEES | 14,144 | * | 260 | 11,904 | 2,500 | * | ||||||||||||||||||
Patrick Lin | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
Peter B. Rauenbuehler & Mary L. Mines Living Trust U/A/D 09/26/05 Peter B. Rauenbuehler & Mary MinesTTEES | 99,802 | * | 2,229 | 102,031 | — | — | ||||||||||||||||||
Peter D. Schiffrin | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Peter john Freix | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Pura Vida Master Fund, LTD | 165,632 | 1.6 | % | 3,386 | 169,018 | — | — | |||||||||||||||||
Rande R Willison | 29,754 | * | 506 | 25,260 | 5,000 | * | ||||||||||||||||||
Richard D. Cohen | 150,892 | 1.4 | % | 2,477 | 113,369 | 40,000 | * | |||||||||||||||||
Richard Dvorak | 29,324 | * | 619 | 28,343 | 1,600 | * | ||||||||||||||||||
Richard F. Braun | 115,010 | 1.1 | % | 2,211 | 101,221 | 16,000 | * | |||||||||||||||||
Richard Martin Reiter | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Richman Trust DTD 6/02/1983 UAD 6/02/83 Douglas Richman & Eva Richman TTEES AMD 1/6/14 | 29,704 | * | 663 | 30,367 | — | — | ||||||||||||||||||
Rick D. Mace & Karen Mace JT TEN | 34,654 | * | 774 | 35,428 | — | — | ||||||||||||||||||
Robert C. Monks | 26,000 | * | 409 | 20,409 | 6,000 | * | ||||||||||||||||||
Robert Charles Bourge | 109,010 | 1.0 | % | 2,211 | 101,221 | 10,000 | * | |||||||||||||||||
Robert Giesen | 13,402 | * | 221 | 10,123 | 3,500 | * | ||||||||||||||||||
Robert Kantor | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Robert N Garff | 57,050 | * | 1,166 | 58,216 | — | — | ||||||||||||||||||
Robin J. Steele Trust DTD 1/30/2015 Robin J. Steele TTEE AMD 05/04/15 | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Robin Rothstein & Jeffery Rothstein COMM PROP WROS | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Ron Eller & Beth Eller JT TEN | 32,724 | * | 619 | 28,343 | 5,000 | * | ||||||||||||||||||
RP Capital, LLC | 455,446 | 4.2 | % | 9,311 | 464,757 | — | — | |||||||||||||||||
Russell Nowak | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
Russell S. Dritz | 9,518 | * | 186 | 8,504 | 1,200 | * | ||||||||||||||||||
Ryan Miller & Gail Miller | 29,704 | * | 663 | 30,367 | — | — | ||||||||||||||||||
Sean Janzer | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Shamus, LLC | 489,132 | 4.6 | % | 5,765 | 263,897 | 231,000 | 2.2 | % | ||||||||||||||||
Sherry Casali | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
Shiloh Produce, Inc. | 191,388 | 1.8 | % | 3,913 | 195,301 | — | — | |||||||||||||||||
Stanley M. Marks | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Stephen Bender | 109,010 | 1.0 | % | 2,211 | 101,221 | 10,000 | * |
Stephen Dwayne Richards | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
Stephen J. Meringoff | 495,050 | 4.6 | % | 10,121 | 505,171 | — | — | |||||||||||||||||
Stephen M. Payne | 59,506 | * | 1,106 | 50,612 | 10,000 | * | ||||||||||||||||||
Stephen Mut | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Steve Goodman & Helane Goodman JT TEN | 39,604 | * | 884 | 40,488 | — | — | ||||||||||||||||||
Steven and Kaye Yost Family Trust U/A/D 02/07/92 AMD 6/04/97 Steven A. Yost and Kate Yost TTEES | 59,902 | * | 1,114 | 51,016 | 10,000 | * | ||||||||||||||||||
Steven F. White | 51,393 | * | 531 | 26,521 | 25,403 | * | ||||||||||||||||||
Steven Glassman | 27,254 | * | 553 | 25,307 | 2,500 | * | ||||||||||||||||||
Steven H. Oram Revocable Trust UAD 5/17/06 Steven H. Oram & Terri Oram TTEES | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Steven K. Luminais & Elizabeth Kindwall Luminais JT TEN | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Steven M. Nelson | 26,827 | * | 557 | 25,509 | 1,875 | * | ||||||||||||||||||
Swift Run Capital | 990,100 | 8.7 | % | 22,112 | 1,012,212 | — | — | |||||||||||||||||
Terrence E. Troy | 86,210 | * | 1,769 | 80,979 | 7,000 | * | ||||||||||||||||||
The A.C. Trust (Delaware) UAD 8/21/08 Seth Lapidow TTEE | 495,050 | 4.6 | % | 11,056 | 506,106 | — | — | |||||||||||||||||
The Bahr Family Limited Partnership | 119,912 | 1.1 | % | 2,432 | 111,344 | 11,000 | * | |||||||||||||||||
The Kentor Trust U/A/D 9/18/02 Eric Kentor and Adrienne Kentor TTEES | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
The Notas Family Trust UAD 8/13/1997 Bernard Notas & Eve Notas TTEES | 69,308 | * | 1,548 | 70,856 | — | — | ||||||||||||||||||
The Oberkfell Living Trust U/A/D 12/18/02 HF Oberkfell & VA Oberkfell TTEES AMD 06/29/10 | 55,446 | * | 1,238 | 56,684 | — | — | ||||||||||||||||||
The R Scott Greer and Michelle Greer Revocable Trust U/A/D 10/01/00 R. Scott Greer and Michelle Greer TTEES | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
The Robert L. Bahr Revocable Trust UAD 3/14/85 Robert Bahr TTEE | 89,110 | * | 1,990 | 91,100 | — | — | ||||||||||||||||||
The Stanford Baratz Revocable Trust U/A/D 09/07/94 Stanford Baratz & Amy Baratz TTEES | 21,875 | * | 409 | 20,409 | 1,875 | * | ||||||||||||||||||
Thomas L. Eisenberg | 28,754 | * | 553 | 25,307 | 4,000 | * | ||||||||||||||||||
Thomas L. Kempner | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Thomas M Vertin | 49,506 | * | 1,012 | 50,518 | — | — | ||||||||||||||||||
Timothy Michael Cicchese | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Timothy P. Hanley & Monica Hanley JTWROS | 99,010 | * | 2,211 | 101,221 | — | — | ||||||||||||||||||
Tom Sego | 99,010 | * | 2,024 | 101,034 | — | — | ||||||||||||||||||
Trust of David Benaderet U/A/D 1/15/13 David Benaderet TTEE | 54,506 | * | 1,106 | 50,612 | 5,000 | * | ||||||||||||||||||
Trust U/W Renee Weiss DTD 5/9/90 Peter H. Weiss TTEE | 23,552 | * | 442 | 20,244 | 3,750 | * | ||||||||||||||||||
William Filon | 21,802 | * | 442 | 20,244 | 2,000 | * | ||||||||||||||||||
William H. Costigan | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
William Huff | 51,956 | * | 1,105 | 50,561 | 2,500 | * | ||||||||||||||||||
William Kadi & Sandra Marie Kadi JT TEN | 24,754 | * | 506 | 25,260 | — | — | ||||||||||||||||||
William Krywicki & Nancie Krywicki JT TEN | 49,506 | * | 1,106 | 50,612 | — | — | ||||||||||||||||||
William Strawbridge | 24,754 | * | 553 | 25,307 | — | — | ||||||||||||||||||
Wilson Wilson & Wilson | 44,556 | * | 910 | 45,466 | — | — | ||||||||||||||||||
Zhe Qiu | 99,012 | * | 2,117 | 101,129 | — | — |
* Less than 1%
(1) | All information contained as of May 5, 2017. |
(2) | Includes (a) shares of our Common Stock held by the applicable Selling Stockholder, (b) shares of Common Stock issuable upon exercise or conversion of convertible securities that are currently exercisable or convertible or are exercisable or convertible within 60 days of May 5, 2017 beneficially owned by the applicable Selling Stockholder outside of the Private Placement and (c) shares of Common Stock issuable to the applicable Selling Stockholder upon the conversion of the Series A Preferred Stock or the exercise of the Warrants sold in the Private Placement. |
(3) | Consists only of (a) shares of Common Stock issuable to the applicable Selling Stockholder upon the conversion of the Series A Preferred Stock or the exercise of the Warrants sold in the Private Placement and (b) shares of Common Stock issuable to the applicable Selling Stockholder as dividends on the Series A Preferred Stock. |
(4) | For purposes of this table, the Company assumes that all of the shares covered by this prospectus will be sold by the Selling Stockholders. |
(5) | Based on a denominator equal to the sum of (a) 10,345,637 shares of our Common Stock outstanding on May 5, 2017, and (b) the number of shares of Common Stock issuable upon exercise or conversion of convertible securities that are currently exercisable or convertible or are exercisable or convertible within 60 days of May 5, 2017 beneficially owned by the applicable Selling Stockholder. |
(6) | Shares beneficially owned is based solely on the Schedule 13G/A filed with the SEC on April 6, 2017 by Ally Bridge Group Capital Partners II, L.P. (“Ally Bridge”). The address of Ally Bridge is Unit 3002-3004, 30th Floor, Gloucester Tower, The Landmark, 15 Queen’s Road Central, Hong Kong. Amounts reported do not include 6,099 shares of Common Stock held by ABG II - SO Limited, as reported on the Schedule 13G/A filed with the SEC on April 6, 2017 by Ally Bridge. The conversion of the Series A Preferred Stock and the exercise of certain warrants held by this Selling Stockholder are subject to a 9.99% ownership blocker. |
(7) | Maxim Merchant Capital, a division of Maxim Group LLC, a FINRA member broker-dealer, acted as our sole placement agent in the Private Placement. In connection with the Private Placement, we issued to Maxim and its designees 5-year warrants to purchase of 1,179,558 shares of Common Stock at an exercise price equal to $2.22 per share, with such warrants containing a cashless exercise provision. The exercise of certain warrants held by this Selling Stockholder are subject to a 4.99% ownership blocker. |
Each time the Selling Stockholders sell any shares of Common Stock offered by this prospectus, they are required to provide you with this prospectus and the related prospectus supplement, if any, containing specific information about the Selling Stockholders and the terms of the shares of Common Stock being offered in the manner required by the Securities Act.
No offer or sale may occur unless the registration statement that includes this prospectus has been declared effective by the Commission and remains effective at the time the Selling Stockholders offer or sell shares of Common Stock. We are required, under certain circumstances, to update, supplement or amend this prospectus to reflect material developments in our business, financial position and results of operations and may do so by an amendment to this prospectus, a prospectus supplement or a future filing with the Commission incorporated by reference in this prospectus.
This prospectus also covers any additional shares of Common Stock that become issuable in connection with the shares being registered by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of Common Stock.
PLAN OF DISTRIBUTION
We are registering the shares of Common Stock issuable to the Selling Stockholders upon conversion of the Series A Preferred Stock or exercise of the Warrants issued to the Selling Stockholders to permit the resale of these shares of Common Stock by the holders thereof from time to time after the date of this prospectus, pursuant to the provisions of the Registration Rights Agreement. As used in this prospectus, “Selling Stockholders” includes donees, pledgees, transferees or other successors-in-interest selling shares received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other permitted transfer.
We will not receive any of the proceeds from the sale by the Selling Stockholders of the shares of Common Stock. We will bear all fees and expenses incident to our obligation to register the shares of Common Stock.
The Selling Stockholders may sell all or a portion of the shares of Common Stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Common Stock are sold through underwriters or broker-dealers, the Selling Stockholders will be responsible for underwriting discounts, commissions or any similar expenses it incurs in disposing of the Common Stock, if any, and any related legal expenses incurred by it. The shares of Common Stock may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions. In addition, the Selling Stockholders may use any one or more of the following methods when selling shares:
● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
● | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
● | an exchange distribution in accordance with the rules of the applicable exchange; |
● | privately negotiated transactions; |
● | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
● | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; |
● | through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise; |
● | a combination of any such methods of sale; and |
● | any other method permitted pursuant to applicable law. |
The Selling Stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the Selling Stockholders may arrange for other broker-dealers to participate in sales. If the Selling Stockholders effect such transactions by selling shares of Common Stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling shareholder and/Selling Stockholders or thecommissions from purchasers of the shares of common stockCommon Stock for whom such broker-dealersthey may act as agentsagent or to whom they may sell as principals, or both (which compensation,principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a particular broker-dealer, mightsupplement to this prospectus, in the case of an agency transaction will not be in excess of a customary commissions).
brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.01.
In connection with distributionssales of the shares any selling stockholderof Common Stock or otherwise, the Selling Stockholders may enter into hedging transactions with broker-dealers and the broker-dealersor other financial institutions, which may in turn engage in short sales of the shares of Common Stock in the course of hedging thein positions they assume with the selling stockholder. Any selling stockholderassume. The Selling Stockholders may also may sell the shares of Common Stock short and if such short sale shall take place after the date that this Registration Statement is declared effective by the Commission, the Selling Stockholders may deliver the shares of Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short positions. Any
selling stockholdersales. The Selling Stockholders may also loan or pledge shares of Common Stock to broker-dealers that in turn may sell such shares, to the extent permitted by applicable law. The Selling Stockholders may also enter into option or other transactions with broker-dealers that involveor other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the Selling Stockholders have been advised that they may not use shares registered on this registration statement to cover short sales of our common stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the Commission.
The Selling Stockholders may, from time to time, pledge or grant a security interest in some or all of the Warrants or shares toof Series A Preferred Stock or Common Stock owned by them and, if they default in the broker-dealers,
whichperformance of their secured obligations, the pledgees or secured parties may then resell or otherwise transfer such shares. Any selling stockholder
also may loan or pledge the shares to a broker-dealeroffer and the broker-dealer may sell the shares so loanedof Common Stock from time to time pursuant to this prospectus or upon a default may sellany amendment to this prospectus under Rule 424(b)(3) or otherwise transfer the
pledged shares. The activities are limited by the purchase agreement between us
and the selling stockholders during periods when the conversion price is subject
to periodic adjustment.
The selling stockholders, any agents, dealers or underwriters that
participate with the selling stockholders in the resaleother applicable provision of the sharesSecurities Act amending, if necessary, the list of common
stock andSelling Stockholders to include the pledgees, donees, transfereespledgee, transferee or other successors in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer and donate the shares of Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The Selling Stockholders and any broker-dealer or agents participating in the distribution of the selling stockholdersshares of Common Stock may be deemed to be "underwriters"“underwriters” within the meaning of Section 2(a)(11) of the Securities Act in which caseconnection with such sales. In such event, any commissions received bypaid, or any discounts or concessions allowed to, any such agents,
dealersbroker-dealer or underwritersagent and aany profit on the resale of the shares of common stock
purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Stockholders who are "underwriters" within the meaning of Section 2(a)(11) of the Securities Act will be subject to the applicable prospectus delivery requirements of the Securities Act including Rule 172 thereunder and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act.
Except as set forth herein, each Selling Stockholder has informed the Company that it is not a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Common Stock. Upon the Company being notified in writing by a Selling Stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such Selling Stockholder and of the participating broker-dealer(s), (ii) the number of shares of Common Stock involved, (iii) the price at which such the shares of Common Stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In order to comply withno event shall any broker-dealer receive fees, commissions and markups, in the aggregate, in excess of eight percent (8.0%) of any offering.
Under the securities laws of particularsome states, if
applicable, the shares of Common Stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. Subject to the terms of the Registration Rights Agreement, the Company has no obligation to qualify the resale of any shares in any particular state.
There iscan be no assurance that the selling stockholdersany Selling Stockholder will sell any or all of the shares.
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Pursuantshares of Common Stock registered pursuant to the shelf registration rights agreements between usstatement, of which this prospectus forms a part.
Each Selling Stockholder and Advantage
Fund II Ltd., Koch Investment Group Limited, Esquire Trade & Finance Inc.,any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and Celeste Trust Reg., we have agreedthe rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Common Stock by the Selling Stockholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Common Stock to engage in market-making activities with respect to the shares of Common Stock. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Common Stock.
We will pay all expenses incurred inof the registration of the shares of Common Stock pursuant to the registration rights agreement, including, without limitation, Commission filing fees and expenses of initial compliance with state securities or “blue sky” laws;provided,however, that each selling stockholder will pay all underwriting discounts, commissions and any similar expenses it incurs in disposing of the Common Stock, if any, and any related legal expenses incurred by such
selling stockholders. However, we are not responsible for selling commissions
and discounts, brokerage feesit. We will indemnify the Selling Stockholders against certain liabilities, including some liabilities under the Securities Act, in accordance with the Registration Rights Agreements, or any other expenses incurredthe Selling Stockholders will be entitled to contribution. We may be indemnified by the selling
stockholders.
We have agreed to indemnify each selling shareholder or their
transferees or assigneesSelling Stockholders against certaincivil liabilities, including liabilities under the Securities Act of 1933, orthat may arise from any written information furnished to contribute to payments to which such
selling shareholder or its pledgees, donees, transferees or other successors in
interest may be required to make in respect thereof.
In addition to selling their common stock under this prospectus,us by the selling stockholders may:
- transfer their common stock in other ways not involving market
makers or established trading markets, including by gift,
distribution, or other transfer; or
- sell their common stock under Rule 144 of the Securities Act.
LEGAL OPINIONS
James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson will pass
upon the validity of the common stock offered under this prospectus.
EXPERTS
The consolidated financial statements incorporatedSelling Stockholders specifically for use in this prospectus, by referencein accordance with the related Registration Rights Agreements or we may be entitled to our (annual report on Form 10-KSB) for the fiscal year ended
January 1, 2000 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
contribution.
WHERE YOU CAN FIND MORE INFORMATION GOVERNMENT FILINGS:
Available Information
We file annual, quarterly and specialcurrent reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document that we fileof this information at the Commission's Public Reference RoomCommission’s public reference room at 450
Fifth100 F Street, N.W.N.E., Room 1024, Washington, D.C. 20549, and at its regional
offices located at 7 World Trade Center, 13th Floor, New York, New York 10048,
and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661.20549. Please call the Commission at 1-800-SEC-0330(800) SEC-0330 or (202) 942-8090 for morefurther information abouton the Public Reference Rooms. Mostpublic reference room. The Commission also maintains an Internet website that contains reports, proxy statements and other information regarding issuers, including us, who file electronically with the Commission. The address of our filings arethat site iswww.sec.gov.
We also availablemaintain an Internet website atwww.diffusionpharma.com, which can be used to youaccess free of charge, atthrough the Commission's web site at
http://www.sec.gov.
STOCK MARKET: Our common stockinvestor relations section, our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, current reports on Form 8-K and any amendments to those reports, as soon as reasonably practicable after we electronically file such material with or furnish it to the Commission and all such reports of ours going forward. The information set forth on, or connected to, our website is listedexpressly not incorporated by reference into, and does not constitute a part of, this prospectus.
This prospectus is part of a registration statement on the Nasdaq SmallCap Market
and similar information can be inspected and copied at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
REGISTRATION STATEMENT: WeForm S-3 that we have filed a registration statementwith the Commission under the Securities Act, withfor the Commission with respect toregistration under the common stock offered
under this prospectus. This prospectus is a partSecurities Act of the registration statement.
However, itsecurities offered hereby. This prospectus does not contain all of the information containedset forth in the registration statement, parts of which are omitted in accordance with the rules and its exhibits. You should referregulations of the Commission. Reference is hereby made to the registration statement and its exhibits forwhich contains further information about uswith respect to our company and our securities. Statements herein concerning the common stock
offered under this prospectus.
INFORMATION INCORPORATED BY REFERENCE: provisions of documents filed as exhibits to the registration statement are necessarily summaries of such documents, and each such statement is qualified by reference to the copy of the applicable document filed with the Commission.
Incorporation of Documents by Reference
The Commission allows us to "incorporateincorporate by reference" thereference information we file with it, whichinto this prospectus. This means that we can disclose important information to you by referring you to another document we filed with the Commission. We will make those documents.
The information incorporateddocuments available to you without charge upon your oral or written request. Requests for those documents should be directed to Investor Relations Department, Diffusion Pharmaceuticals Inc., 2020 Avon Court, Suite 4, Charlottesville, Virginia 22902, Attention: Secretary, telephone: (434) 220-0718. This prospectus incorporates by reference is an important partthe following documents (other than any portion of this
prospectus, and informationthe respective filings furnished, rather than filed, under the applicable Commission rules) that we file laterhave filed with the Commission will
automatically update and supersedebut have not included or delivered with this information. prospectus:
● | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as amended, filed with the Commission on March 31, 2017. |
● | Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed with the Commission on May 15, 2017. |
● | Our Current Reports on Form 8-K filed on January 9, 2017, January 26, 2017 (to the extent not furnished), March 15, 2017, April 3, 2017, April 11, 2017 and May 26, 2017. |
● | Our Definitive Proxy Statement on Schedule 14A filed on May 12, 2016. |
● | The description of our Common Stock included in our amended registration statements on Form 8-A filed on November 8, 2016 under the Exchange Act, and any amendment or report we may file with the Commission for the purpose of updating such description. |
We have filed the following
documents with the Commission and they are incorporatedalso incorporate by reference into this prospectus:
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- our Annual Report on Form 10-KSB for the fiscal year ended
January 1, 2000;
- our Quarterly Report on Form 10-QSB for the fiscal quarter
ended April 1, 2000;
- our Proxy Statement for the 2000 Annual Meeting of
Stockholders, dated June 20, 2000;
- our Current Reports on Form 8-K, including Exhibits, filed
March 24, 2000, June 22, 2000 and July 20, 2000;
- the description of our capital stock contained in our
registration statement on Form 10-SB, including all amendments
or reports filed forand prospectus any future filings we will make with the purpose of updating the description
of our capital stock.
Please note that all other documents and reports filedCommission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act following the date of this prospectus and
prior to the termination of the offering of the securities covered by this offering will beprospectus (other than current reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K).This additional information is a part of this prospectus from the date of filing of those documents.
Any statements made in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus andwill be deemed to be mademodified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document, which is also incorporated or deemed to be incorporated into this prospectus, modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of itthis prospectus. The information relating to us contained in this prospectus should be read together with the information in the documents incorporated by reference.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered by this prospectus will be passed upon for us by Dechert LLP, New York, New York. Any underwriter or agent will be advised about other issues relating to any offering by its own legal counsel.
EXPERTS
The consolidated financial statements of Diffusion Pharmaceuticals Inc. as of and for the years ended December 31, 2016 and 2015, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2016 consolidated financial statements contains an explanatory paragraph that states that the Company has suffered recurring losses from operations, has limited resources available to fund current research and development activities, and will require substantial additional financing to continue to fund its research and development activities, which raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the dateoutcome of that uncertainty.
PART II
Information Not Required in Prospectus
Item 14.Other Expenses of Issuance and Distribution
The following is a statement of the filingexpenses (all of our reports and documents.
You may request free copies of these filingswhich are estimated) to be incurred by writing or telephoning
us at the following address:
Investor Relations
Titan Motorcycle Co. of America
2222 West Peoria Avenue
Phoenix, Arizona 85029
(602) 861-6977
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the
issuance anda distribution of the securities beingCommon Stock registered allunder this registration statement:
SEC registration fee | $ | 8,896 | ||
Legal fees and expenses | $ | 35,000 | ||
Accounting fees and expenses | $ | 7,050 | ||
Printing fees | * | |||
Miscellaneous | * | |||
Total | $ | 50,946 |
|
* | The estimated expenses are presently indeterminable and will be set forth in the applicable prospectus supplement with respect to any offering of the Common Stock registered hereunder. |
Item 15.Indemnification of Directors and Officers
The summary set forth below does not purport to be complete and is subject to and qualified in its entirety by reference to our Certificate of Incorporation and Bylaws, each of which will
be paidis incorporated by Titan:
We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation tomay indemnify any personpersons who wasare, or is a party or isare threatened to be made, a partyparties to any threatened, pending or completed action, or suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of thesuch corporation), by reason of the fact that he is orsuch person was aan officer, director, officer, employee or agent of thesuch corporation, or is or was serving at the request of the corporationsuch person as aan officer, director, officer, employee or agent of another corporation or other enterprise,
againstenterprise. The indemnity may include expenses (including attorneys'attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by himsuch person in connection with such action, suit or proceeding, if heprovided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction or upon
a plea of nolo contendere or its equivalent does not, of itself, create a
presumption that the person did not act in good faith or in a manner which he
reasonably believed to be in or not opposed to the best interests of theillegal. A Delaware corporation or that, with respect to any criminal action or proceeding, he had
reasonable cause to believe his actions were unlawful.
Subsection 2 of Section 78.7502 of the NRS empowers a corporation tomay indemnify any personpersons who wasare, or is a party or isare threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in anywas a director, officer, employee or agent of such corporation, or is or was serving at the capacities set forth above againstrequest of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses including attorneys' fees,(including attorneys’ fees) actually and reasonably incurred by himsuch person in connection with the defense or settlement of such action or suit, ifprovided that such person acted in good faith and in a manner he acted under similar
standardsor she reasonably believed to those described above expectbe in or not opposed to the corporation’s best interests except that no indemnification may be made in
respect of any claim, issueis permitted without judicial approval if the officer or matter as to which such person shall have beendirector is adjudged to be liable to the corporationcorporation. Where an officer or for amounts paid in settlement todirector is successful on the corporation unless and only to the extent that the court in which such
actionmerits or suit was brought determines that, despite the adjudication of
liability, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
Section 78.7502 of the NRS further provides that to the extent a
director or officer of a corporation has been successfulotherwise in the defense of any action suit or proceeding referred to in subsections (1) and (2)above, the corporation must indemnify him or inher against the 17
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defense of any claim, issueexpenses which such officer or matter therein, he shall be indemnified against
expenses (including attorneys' fees)director has actually and reasonably incurred by him in
connection therewith. Section 78.751incurred. Our certificate of the NRS provides that any
indemnification provided for by Section 78.7502 of the NRS (by court order or
otherwise) shall not be deemed exclusive of any other rights to which the
indemnified party may be entitledincorporation and that the scope of indemnification shall
continue as to directors, officers, employees or agents who have ceased to hold
such positions, and to their heirs, executors and administrators. Section 78.752
empowers the corporation to purchase and maintain insurance on behalf of a
director, officer, employee or agent of the corporation against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under Section 78.7502.
Article 4.2 of our Articles of Incorporationbylaws provide that no director
or officer of ours shall be personally liable to us or any of our stockholders
for damages for breach of their fiduciary duty as a director or officer. This
provision, however, does not eliminate or limit the liability of our directors
or officers for:
X acts or omissions which involve intentional misconduct, fraud
or a knowing violation of law, or
X the payment of distributions in violation of Nevada Revised
Statutes Section 78.300.
Article VI of our bylaws provides for the indemnification of our directors and officers employees and agents in a manner substantially identical in
scope to thatthe fullest extent permitted under the Delaware General Corporation Law.
Section 78.7502102(b)(7) of the Nevada Revised Statutes.
The BylawsDelaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the expensescorporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of officers and directorsfiduciary duties as a director, except for liability for any:
● | transaction from which the director derives an improper personal benefit; |
● | act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
● | unlawful payment of dividends or redemption of shares; or |
● | breach of a director’s duty of loyalty to the corporation or its stockholders. |
Our certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending any civil or criminalsuch action, suit or proceeding in advance of its final disposition shall be paid by us as they are incurred and in advance of the final disposition of the action, suit
or proceeding, upon receiptdelivery to us of an undertaking, by or on behalf of thesuch director or officer, to repay the amountall amounts so advanced if it isshall ultimately be determined by a court of
competent jurisdiction that hesuch director or officer is not entitled to be indemnified.
ITEM 16. EXHIBITS
We have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or sales are being
made, a post-effective amendmentotherwise.
Item 16. Exhibits
The exhibits to this registration statement to include any material information with respect to
the plan of distribution not previously disclosedare listed in the registration statement or any material change toexhibit index that immediately precedes such exhibits and is incorporated herein by reference.
Item 17. Undertakings
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (ii) and (iii) do not apply if the information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemedrequired to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means ofincluded in a post-effective amendment any ofby those paragraphs is contained in reports filed with or furnished to the securities being registered which remain
unsold atCommission by the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report under Section 13(a)registrant pursuant to section 13 or Sectionsection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report under Section 15(d) of the Securities
Exchange Act of 1934) that isare incorporated by reference in the registration statement, shall be deemedor is contained in a form of prospectus filed pursuant to be a new registration statement relating to the
securities offered therein, and the offering of such securities atRule 424(b) that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling personsis part of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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registration statement.
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue |
SIGNATURES
Pursuant to the requirements of the Securities Act, of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the Citycity of Phoenix, StateCharlottesville, Commonwealth of Arizona,Virginia, on July 20, 2000.
TITAN MOTORCYCLE CO. OF AMERICA
/s/ Francis S. Keery
Francis S. Keery, Chairmanthis 30th day of the Board of
Directors and Chief Executive Officer
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Francis S. Keery, Robert P. Lobban,
Patrick Keery, and Barbara S. Keery, and each of them, his true and lawful
attorneys-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments to this registration statement on
Form S-3 and to sign any registration statement for the same offering that is to
be effective upon filing pursuant to Rule 462(b) of the Securities Act of 1933,
and to file the same, with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting under
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully and to all intents and purposes as he might
or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
May, 2017.
DIFFUSION PHARMACEUTICALS INC. | |||
By: | /s/ David G. Kalergis | ||
David G. Kalergis | |||
Chief Executive Officer | |||
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statementAmendment No. 1 to the Registration Statement has been signed below by the following persons in the capacities and on the datedates indicated.
Signature | Title | Date | |||||||
/s/ David G. Kalergis | Chief Executive Officer and Chairman | May 30, 2017 | |||||||
David G. Kalergis | |||||||||
/s/ Ben L. Shealy | Senior Vice President – Finance, Treasurer and Secretary (Principal Financial Officer) | May 30, 2017 | |||||||
Ben L. Shealy | |||||||||
* | Vice Chairman, Board of Directors | May 30, 2017 | |||||||
Isaac Blech | |||||||||
* | Director | May 30, 2017 | |||||||
John L. Gainer, Ph.d. | |||||||||
* | Director | May 30, 2017 | |||||||
Robert | |||||||||
* | Director | May 30, 2017 | |||||||
Mark T. Giles | |||||||||
* | Director | May 30, 2017 | |||||||
Alan Levin | |||||||||
*By: | /s/ David G. Kalergis | ||||||||
| David G. Kalergis Attorney-in-fact | |||||||||
EXHIBIT INDEX TO EXHIBITS
Exhibit No. | Description | |
3.1* | Certificate of Incorporation of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017). | |
3.2* | Bylaws of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015 (File No. 001-24477), filed March 25, 2016). | |
3.3* | Certificate of Designations | |
3.4* | Certificate of Conversion, as filed with the Secretary of State of the State of Delaware on June 18, 2015 (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-24477), filed June | |
4.1* | Form of Warrant issued to | |
4.2* | Form of Registration Rights Agreement entered into by and among the Company and Investors in the 2017 Series A Private Placement (incorporated by reference to Exhibit 4.2 to the | |
4.3* | Form of Diffusion Pharmaceuticals Inc. Convertible Note Agreement (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-37942), filed | |
4.4* | Form of Diffusion Pharmaceuticals LLC Convertible Note Agreement (incorporated by reference to Exhibit | |
5.1* | Opinion of | |
10.1 | Placement Agency Agreement, | |
10.2* | Form of 2017 Private Placement Subscription Agreement (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 001-37942), filed March 15, 2017). | |
10.3* | Amendment to the Placement Agency Agreement, dated March 14, 2017, by and between Diffusion Pharmaceuticals Inc. and Maxim Merchant Capital, a division of Maxim Group LLC (incorporated by reference to Exhibit 10.17 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017). | |
23.1 | Consent of | |
23.2* | Consent of | |
24.1* | Powers of Attorney (included on signature page of |