Registration No. 333-[ ]333-253196
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Enveric Biosciences, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 95-4484725 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification |
4851 Tamiami Trail N, Suite 750,
Naples, FL 34103
239-302-1707
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David Ian Johnson
Chief Executive Officer
Chairman of the Board of Directors
Enveric Biosciences, Inc.
4851 Tamiami Trail N, Suite 750,
Naples, FL 34103
239-302-1707
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Rick A. Friedman,Werner, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 39th26th Floor
New York, NY 10112-0015
Tel. (212) 653-8700
Fax (212) 655-1729
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this 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. ☐
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. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrantRegistrant 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,”company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | [ ] | Accelerated filer | [ ] |
Non-accelerated filer | [X] | Smaller reporting company | [X] |
Emerging growth 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. ☐
Title of each class of securities to be registered | Amount to be registered | Proposed maximum offering price per share | Proposed maximum aggregate offering price(3) | Amount of registration fee(3) | |||||||
Common Stock, $0.01 par value per share | |||||||||||
Preferred Stock, $0.01 par value per share | |||||||||||
Debt Securities | |||||||||||
Warrants | |||||||||||
Units | |||||||||||
Total | (1) | (2) | $ | 25,000,000 | $ | 3,030 |
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 thatwhich specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED APRIL 2, 2021
Prospectus
5,497,878 Shares of Common Stock and Shares of Common Stock Underlying Warrants
The selling stockholders named in this prospectus may use this prospectus to offer and sell,resell from time to time in one or more offerings, any combinationup to 5,497,878 shares of our common stock, which are the shares of common stock preferred stock, debt securities, warrants to purchasecurrently outstanding and shares of common stock preferredissuable upon the exercise of warrants held by the selling stockholders (the “Shares”). These shares of common stock or debt securities, orconsist of:
● | 1,791,923 shares of our common stock (the “Series B Warrant Shares”) issuable upon exercise of the Series B Warrants (defined below) issued to Alpha Capital Anstalt (“Alpha”). | |
● | 1,666,018 shares of our common stock (the “January 2021 Warrant Shares”) issuable upon exercise of the January 2021 Warrants (defined below) issued to the Subsequent Investors (defined below). | |
● | 1,503,513 shares of our common stock (the “February 2021 Warrant Shares”) issuable upon exercise of the February 2021 Warrants (defined below) issued to the Subsequent Investors. | |
● | 156,318 shares of our common stock issued to former directors and officers of Ameri (defined below). | |
● | 14,121 shares of our common stock issued to Stacy Dakar, a former consultant of the Company. | |
● | 365,985 shares of our common stock (the “Palladium Warrant Shares”) issuable upon exercise of the Palladium Warrants (defined below) issued to Palladium Holdings, LLC (“Palladium”). |
We will not receive any combination of the foregoing, either individually or as units comprisedproceeds from the sale of one or moreour common stock by the selling stockholders. However, we will receive proceeds from the exercise of the other securities, having an aggregate initial offering price not exceeding $25,000,000.
The prospectus supplement and any related free writing prospectus may also add, update or change information containedselling stockholders named in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should read carefully this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference herein or therein before you invest in any of our securities.
Effective as of 4:02 pm Eastern Time on December 30, 2020, we filed an amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of the issued and outstanding shares of our common stock, at a ratio of one share for four shares. All share and per share prices in this prospectus supplement.
Our common stock is presently listed on Thethe Nasdaq Capital Market under the symbol “AMRH.“ENVB.” On August 12, 2019,April 1, 2021, the last reported sale price of our common stock was $0.3234$3.13 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities, where applicable.
Plan of Distribution” in this prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
Neither the U.S. Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement.prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2019.2021.
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The Offering | 9 |
Risk Factors | 10 |
Use of Proceeds | 10 |
Selling Stockholders | 10 |
Plan of Distribution | 15 |
Legal Matters | 16 |
Experts | 16 |
Where You Can Find Additional Information | 17 |
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This prospectus is part of a registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission, or SEC using a “shelf” registration process. UnderThe selling stockholders named in this shelf registration statement, weprospectus may sellresell, from time to time, in one or more offerings, the common stock offered by this prospectus. Information about the selling stockholders may change over time. When the selling stockholders sell shares of common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or as units comprised of a combination of one or more of the other securities in one or more offerings up to a total dollar amount of $25,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell any type or series of securities under this prospectus, we will, if necessary and required by law, provide a prospectus supplement that will contain more specific information about the terms of that offering.
You should carefully read both this prospectus andrely only on the applicable prospectus supplement and any related free writing prospectus, together with the additional information described under “Where You Can Find More Information,” before buying any of the securities being offered.
You should read the entire prospectus and any prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making an investment decision. Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or issuer free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any prospectus supplement or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless of the time of delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date)date.
CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference herein, contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), even thoughand Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Any statements about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but are not always, made through the use of words or phrases such as “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “target,” “will,” “would,” and similar expressions, or the negative of these terms, or similar expressions. Accordingly, these statements involve estimates, assumptions and uncertainties which could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus, and in particular those factors referenced in the sections entitled “Risk Factors.”
This prospectus contains forward-looking statements that are based on our management’s belief and assumptions and on information currently available to our management. These statements relate to future events or our future financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from any applicable prospectus supplementfuture results, levels of activity, performance or any related free writing prospectus is deliveredachievements expressed or securities are sold on a later date.
● | the impact of the novel coronavirus (COVID-19) on our ongoing and planned clinical trials; | |
● | the geographic, social and economic impact of COVID-19 on our ability to conduct our business and raise capital in the future when needed; | |
● | delays in planned clinical trials; the ability to establish that potential products are efficacious or safe in preclinical or clinical trials; | |
● | the ability to establish or maintain collaborations on the development of therapeutic candidates; | |
● | the ability to obtain appropriate or necessary governmental approvals to market potential products; | |
● | the ability to obtain future funding for developmental products and working capital and to obtain such funding on commercially reasonable terms; | |
● | our ability to manufacture product candidates on a commercial scale or in collaborations with third parties; changes in the size and nature of competitors; | |
● | the ability to retain key executives and scientists; and the ability to secure and enforce legal rights related to our products, including patent protection; and | |
● | other factors discussed in this prospectus and the documents incorporated by reference herein, including those set forth under “Risk Factors” in the 10-K. |
We have included important factors in the cautionary statements included in this prospectus were made solely forand the benefitdocuments we incorporate by reference herein and, including from the 10-K, particularly in the “Risk Factors” sections of these documents, that we believe could cause actual results or events to differ materially from the parties to such agreement, including,forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make. No forward-looking statement is a guarantee of future performance.
You should read this prospectus and the documents that we incorporate by reference herein completely and with the understanding that our actual future results may be materially different from what we expect. The forward-looking statements in some cases, forthis prospectus and 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 onlydocuments we incorporate by reference herein represent our views as of the date when made. Accordingly, such representations, warrantiesof this prospectus. We anticipate that subsequent events and covenantsdevelopments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should, therefore, not be reliedrely on these forward-looking statements as accurately representing our views as of any date subsequent to the current statedate of this prospectus.
The following summary of our affairs.
In this prospectus, unless the context otherwise requires, references to “we,” “us,” “our,” “our company” and “Enveric” refer to Enveric Biosciences, Inc. and its subsidiaries. We were previously known as AMERI Holdings, Inc. (“Ameri”). Following the completion of our offer to purchase all of the issued and outstanding shares of Jay Pharma, Inc. on December 30, 2020, we changed the name of our company from AMERI Holdings, Inc. to Enveric Biosciences, Inc. For more detail on the transaction with Jay Pharma, Inc. and related transactions, see section titled “Recent Development” below.
Company Overview
We are an early-development-stage biosciences company that is seeking to develop innovative, evidence-based prescription products and combination therapies containing cannabinoids to address unmet needs in cancer care. We seek to improve the lives of patients suffering from cancer, initially by developing palliative and supportive care products for persons suffering from certain side effects of cancer and cancer treatment such as pain or skin irritation. We currently intend to offer such palliative and supportive care products in the United States, following approval through established regulatory pathways.
We are also aiming to advance a pipeline of novel cannabinoid combination therapies for hard-to-treat cancers, including glioblastoma multiforme (GBM) and several other indications which are currently being researched.
We intend to bring together leading oncology clinicians and researchers, academic and industry partners so as to develop both external proprietary products and a robust internal pipeline of product candidates aimed at improving quality of life and outcomes for cancer patients. We intend to evaluate options to out-license our proprietary technology as we move along the regulatory pathway instead of building a small targeted selling organization and will potentially utilize a hybrid approach based on the indication and the results.
In developing our product candidates, we intend to focus solely on cannabinoids derived from hemp and synthetic materials containing no tetrahydrocannabinol (THC) in order to comply with U.S. federal regulations. Of the potential cannabinoids to be used in therapeutic formulations, THC, which is responsible for the psychoactive properties of marijuana, can result in undesirable mood effects. Cannabidiol (CBD) and cannabigerol (CBG), on the other hand, are not psychotropic and are therefore more attractive candidates for translation into therapeutic practice. In the future, we may readutilize cannabinoids that are derived from cannabis plants, which may contain THC; however, we only intend to do so in jurisdictions where THC is legal. These product candidates will then be studied through a typical FDA drug approval process.
Product Candidates
Our pipeline of product candidates and key ongoing development programs are shown in the tables below:
Product Candidate | Targeted Indications | Partner(s) | Status | Expected Next Steps | ||||
Cannabinoid-Infused Topical Product | Oncology- related skincare conditions (e.g., radiodermatitis) | U.S.-Based Center of Excellence | Research & Development / Discovery | IND submission; Exploratory Phase 1/2 trial with patient enrollment anticipated in the second half of 2021 | ||||
Cannabinoid + Chemotherapy Combination Therapy Oral synthetic CBD extract given alone or in combination with clomiphene, concurrently with dose-dense Temolozomide chemotherapy | Glioblastoma Multiforme Recurrent or progressive | Dr. Tali Siegal, Rabin Medical Center, Davidoff Institute of Oncology | Research & Development / Discovery | IND submission; Exploratory Phase 1/2 trial with patient enrollment anticipated during the second half of 2021 |
Additional Potential Development Programs | Potential Target Indications | |
Cannabinoid + Chemotherapy Combination Therapy Clomiphene in combination with CBD in patients with selected locally advanced or metastatic breast cancer treated with standard adjuvant chemotherapy regimens | Breast Cancer |
Recent Developments
Closing of the Tender Offer
On December 30, 2020, pursuant to the previously announced Tender Offer Support Agreement and Termination of Amalgamation Agreement dated August 12, 2020, as amended by that certain Amendment No. 1 to the Tender Offer Support Agreement and Termination of Amalgamation Agreement dated December 18, 2020 (as amended, the “Tender Agreement”), by and among us, Jay Pharma Inc., a Canada corporation and a wholly owned subsidiary of the Company (“Jay Pharma”), and certain other signatories thereto, we completed a tender offer (the “Offer”) to purchase all of the outstanding common shares of Jay. Following the effective time of the Offer, we changed the name of our company from AMERI Holdings, Inc. to Enveric Biosciences, Inc. and effected a 1-for-4 reverse stock split of the issued and outstanding common stock. Immediately following completion of the Offer and the transactions contemplated in the Tender Agreement, but without giving effect to the issuance of the Series B Warrants (as defined below), (i) the former Jay Pharma equity holders (including certain investors in private placements that closed prior to the completion of the Offer) owned approximately 82.3% of the Company; (ii) former Ameri equity holders owned approximately 14.5% of the Company; and (iii) a financial advisor to Jay Pharma and Ameri owned approximately 3.2% of the Company.
The common stock on The Nasdaq Capital Market, previously trading through the close of business on December 30, 2020 under the ticker symbol “AMRH,” commenced trading on The Nasdaq Capital Market, on a post-reverse stock split adjusted basis, under the ticker symbol “ENVB” on December 31, 2020.
Closing of Spin-Off
As previously reported, on January 10, 2020, Ameri and Ameri100 Inc. (“Private Ameri”) entered into a Share Purchase Agreement (the “Ameri Share Purchase Agreement”) pursuant to which Ameri agreed to contribute, transfer and convey to Private Ameri all of the issued and outstanding equity interests of the existing subsidiaries of Ameri, constituting the entire business and operations of Ameri and its subsidiaries, and wherein Private Ameri agreed to assume the liabilities of such subsidiaries (the ���Spin-Off”).
On December 30, 2020, pursuant to the Ameri Share Purchase Agreement, Ameri consummated the Spin-Off and all of the issued and outstanding shares of Series A preferred stock of Ameri (the “Series A Preferred Stock”) were redeemed for an equal number of shares of Series A preferred stock of Private Ameri (“Private Ameri Preferred Stock”). Ameri contributed, transferred and conveyed to Private Ameri all of the issued and outstanding equity interests of the existing subsidiaries of Ameri, constituting the entire business and operations of Ameri and its subsidiaries, and Private Ameri assumed the liabilities of such subsidiaries.
Series B Warrants
Pursuant to the Tender Agreement, on December 31, 2020, we issued Series B Warrants (the “Series B Warrants”) to purchase 1,791,923 shares of common stock at an exercise price of $0.01 to Alpha Capital Anstalt (“Alpha”). We are obligated, among other things, to file a registration statement with SEC for purposes of registering the resale of the shares of common stock issuable upon exercise of the Series B Warrants by the investors. This prospectus is part of that required registration statement. The issuance of the Series B Warrants was exempt from the registration requirements of the Securities Act pursuant to an exemption provided by Section 4(a)(2) thereof as a transaction by an issuer not involving a public offering. As described below under “Letter Agreement with Alpha”, on January 12, 2021, we have waived the lock-up restrictions on Alpha with respect to dispositions of the shares of common stock issuable upon exercise of the Series B Warrants (the “Series B Warrant Shares”), and Alpha agreed to limit its sales of shares of our common stock on each trading day to no more than 10% of the daily reported trading volume of common stock on the Nasdaq Stock Market for such trading day, provided, such limitation shall terminate if the closing price of our shares of common stock on the Nasdaq Stock Market exceeds $5.29 per share for five consecutive trading days.
Director and Officer Resignations and Appointments
Effective upon completion of the Offer, Srinidhi “Dev” Devanur, our former Executive Chairman and a former director of the board of directors, Brent Kelton, our former Chief Executive Officer, Barry Kostiner, our former Chief Financial Officer, Carmo Martella, a former director of the board of directors, Thoranath Sukumaran, a former director of the board of directors and Dimitrios Angelis, a former director of the board of directors, all tendered their resignations from their respective positions as officers and directors of our company.
Pursuant to the terms of the Tender Agreement, the board of directors appointed David Johnson, George Kegler, Sol Mayer and Marcus Schabacker to the board of directors at the effective time of the Offer.
Effective upon the completion of the Offer, the board of directors appointed David Johnson as our Chief Executive Officer and Chairman, Avani Kanubaddi as our Chief Operating Officer, John Van Buiten as our Chief Financial Officer, and Robert Wilkins as our Chief Medical Officer.
On December 29, 2020 at the special meeting of Ameri stockholders held to approve the Tender Agreement, the shareholders ratified the Bonus Shares Proposal, resulting in the issuance of shares previously awarded by Ameri’s board of directors to Mr. Devanur, Mr. Kelton, Mr. Kostiner and Brandon Gordon, our Executive Vice President, Business Development in lieu of cash bonuses, with a total of 156,318 post-split shares being awarded on December 30, 2020.
Of these shares, 67,635 had originally been awarded, subject to Ameri’s shareholders’ approval, on January 9, 2020, representing aggregate bonus payments of $675,000 divided by a price of $9.98, the closing price on the day immediately preceding board approval. A further 88,683 shares had been awarded, subject to Ameri’s shareholders’ approval, and subject to continued service through the end of 2020, on October 19, 2020, represent aggregate bonus payments of $525,000 divided by a price of $5.92, the closing price on the day immediately preceding board approval, resulting in a total of 156,318 shares granted to officers and directors,
The issuance of these shares was exempt from the registration requirements of the Securities Act pursuant to an exemption provided by Section 4(a)(2) thereof as a transaction by an issuer not involving a public offering.
Amended and Restated Certificate of Incorporation and Bylaws
In connection with the Tender Agreement, we filed an Amended and Restated Certificate of Incorporation and adopted amended and restated bylaws on December 30, 2020. For additional information regarding our organizational documents, please refer to our Current Report on Form 8-K filed with the SEC on January 6, 2021.
Delisting of Ameri Warrants
On December 30, 2020, we received a written notice (the “Notice”) from Listing Qualifications Department of The Nasdaq Stock Market LLC (“Nasdaq”) indicating that our listed warrants (the “AMRHW Warrants”) would be suspended from listing on the Nasdaq Capital Market. A Form 25-NSE was filed with the SEC on December 30, 2020, which removed the AMRHW Warrants from listing and registration on the Nasdaq Capital Market.
The terms of the AMRHW Warrants are not affected by the delisting, and the AMRHW Warrants may still be exercised in accordance with their terms to purchase common stock of the Company.
The listing of the common stock, which is traded on the Nasdaq Capital Market under the symbol ENVB, is not affected by the delisting of the AMRHW Warrants.
Change in Certifying Accountant
On January 5, 2021, our Audit Committee of the board of directors approved the dismissal of Ram Associates, CPA (“Ram”) as our independent registered public accounting firm, effective December 31, 2020, and engaged Marcum LLP (“Marcum”) as our independent registered public accounting firm for the year ending December 31, 2020. Prior to the completion of the Offer, Marcum served as the independent registered public accounting firm of Jay Pharma, and we believe the change in auditors will be more efficient for reporting purposes.
January 2021 Registered Direct Offering
On January 12, 2021, we entered into a Securities Purchase Agreement (the “January 2021 Purchase Agreement”) with Alpha, The Hewlett Fund LP, Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B (“Alto”), Iroquois Master Fund Ltd., Iroquois Capital Investment Group LLC and Hudson Bay Master Fund Ltd (collectively, the “Subsequent Investors”), pursuant to which the Company issued and sold in a registered direct offering (the “January 2021 Direct Offering”) an aggregate of 2,221,334 shares of our common stock at an offering price of $4.5018 per share, for gross proceeds of approximately $10,000,000 before the deduction of fees and offering expenses. Under the January 2021 Purchase Agreement, the Subsequent Investors could choose to purchase pre-funded warrants (the “Pre-funded Warrants”) in lieu of shares of Common Stock. The offering closed on January 14, 2021.
The Pre-funded Warrants have an exercise price of $0.01 per share. The Pre-funded Warrants are immediately exercisable and may be exercised at any time after their original issuance until such Pre-funded Warrants are exercised in full. A holder of a Pre-funded Warrant may not exercise any portion of such holder’s Pre-funded Warrants to the extent that the holder, together with its affiliates, would beneficially own more than 4.99% (or, at the election of the holder, 9.99%) of the Company’s outstanding shares of Common Stock immediately after exercise (the “Beneficial Ownership Limitation”), except that upon at least 61 days’ prior notice from the holder to the Company, the holder may increase the Beneficial Ownership Limitation to up to 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise.
The shares, the Pre-funded Warrants, and the shares of Common Stock issuable upon the exercise of the Pre-funded Warrants (the “Pre-funded Warrant Shares”) were offered by the Company pursuant to a shelf registration statement on Form S-3 (File No. 333-233260), previously filed with the SEC on August 14, 2019, and declared effective by the SEC on November 19, 2019.
Pursuant to the January 2021 Purchase Agreement, in a concurrent private placement (the “January 2021 Private Placement”) that also closed on January 14, 2021, the Company issued to the Subsequent Investors, unregistered warrants to purchase up to 1,666,018 shares of Common Stock (the “January 2021 Warrants”). The January 2021 Warrants are exercisable immediately upon issuance and terminate five years following issuance and are exercisable at an exercise price of $4.9519 per share, subject to adjustment as set forth therein. A holder of January 2021 Warrants will not have the right to exercise any portion of its January 2021 Warrants if the holder, together with its affiliates, would beneficially own in excess of the Beneficial Ownership Limitation; provided, however, that upon 61 days’ prior notice to the Company, the holder may increase or decrease the Beneficial Ownership Limitation, provided that in no event shall the Beneficial Ownership Limitation exceed 9.99%.
The January 2021 Warrants and the shares of our Common Stock issuable upon the exercise of the January 2021 Warrants (the “January 2021 Warrant Shares”) were not registered under the Securities Act, were not offered pursuant to the shelf registration statement, and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder as a transaction by the issuer not involving a public offering.
To induce the Subsequent Investors into the January 2021 Purchase Agreement, the Company also entered into a registration rights agreement, dated January 12, 2021 (the “January Registration Rights Agreement”), with the Subsequent Investors, pursuant to which, among other reports wethings, the Company agreed to prepare and file with the Securities and Exchange Commission this Registration Statement to register for resale of all of the January 2021 Warrant Shares.
Letter Agreement with Alpha
On January 12, 2021 we entered into a letter agreement (the “Letter Agreement”) with Alpha. Under the Letter Agreement, (i) we agreed to register 1,791,923 of the Series B Warrant Shares issuable upon the exercise of Series B Warrants, (ii) the Series B Warrant Shares will not be subject to an existing lock-up agreement between us and Alpha, and Alpha will no longer be subject to any limitations on its ability to dispose of the Series B Warrant Shares that are imposed by us to the extent permitted by applicable rules and regulations, (iii) Alpha agreed to limit its sales of common stock on each trading day to no more than 10% of the daily reported trading volume of common stock on the Nasdaq Stock Market for such trading day, provided, such limitation shall terminate if the closing price of our shares of common stock on the Nasdaq Stock Market exceeds $5.29 per share for five consecutive trading days and (iv) we will be free to waive the terms and conditions of any lock-up agreement between us and any of the former shareholders of Jay Pharma Inc. without the consent of, or notice to, Alpha once this registration statement registering the Series B Warrant Shares is declared effective by the SEC.
February 2021 Registered Direct Offering
On February 8, 2021, we entered into a Securities Purchase Agreement (the “February 2021 Purchase Agreement”) with the Subsequent Investors, pursuant to which the Company issued and sold in a registered direct offering (the “February 2021 Direct Offering”) an aggregate of 3,007,026 shares of our common stock at an offering price of $4.27 per share, for gross proceeds of approximately $12,800,000 before the deduction of fees and offering expenses. The offering closed on February 11, 2021.
The shares were offered by the Company pursuant to a shelf registration statement on Form S-3 (File No. 333-233260), previously filed with the SEC on August 14, 2019, and declared effective by the SEC on November 19, 2019.
Pursuant to the February 2021 Purchase Agreement, in a concurrent private placement (the “February 2021 Private Placement”) that also closed on February 11, 2021, the Company issued to the Subsequent Investors, unregistered warrants to purchase up to 1,503,513 shares of Common Stock (the “February 2021 Warrants”). The February 2021 Warrants are exercisable immediately upon issuance and terminate five years following issuance and are exercisable at an exercise price of $4.90 per share, subject to adjustment as set forth therein. A holder of February 2021 Warrants will not have the SEC’s web siteright to exercise any portion of its February 2021 Warrants if the holder, together with its affiliates, would beneficially own in excess of the Beneficial Ownership Limitation; provided, however, that upon 61 days’ prior notice to the Company, the holder may increase or atdecrease the SEC’s offices described belowBeneficial Ownership Limitation, provided that in no event shall the Beneficial Ownership Limitation exceed 9.99%.
The February 2021 Warrants and the shares of our Common Stock issuable upon the exercise of the February 2021 Warrants (the “February 2021 Warrant Shares”) were not registered under the heading “Where You Can Find Additional Information.”
To induce the Subsequent Investors into the February 2021 Purchase Agreement, the Company References
Palladium Warrants
In connection with its role as financial advisor to the Company in the January 2021 Direct Offering, the January 2021 Private Placement, the February 2021 Direct Offering and the February 2021 Private Placement, the Company issued Palladium 155,493 warrants with an exercise price of $4.9519 and 210,492 warrants with an exercise price of $4.90 (the “Palladium Warrants”) on February 11, 2021. The Palladium Warrants and the shares of our Common Stock issuable upon the exercise of the Palladium Warrants (the “Palladium Warrant Shares”) were not registered under the Securities Act and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder as a transaction by the issuer not involving a public offering.
Reverse Stock Split
Effective as of 4:02 pm Eastern Time on December 30, 2020, we filed an amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of the issued and outstanding shares of our common stock, at a ratio of one share for four shares. The net result of the reverse stock split was a 1-for-4 reverse stock split. We made proportionate adjustments to the per share exercise price and/or the number of shares issuable upon the exercise or vesting of all stock options, restricted stock units (if any) and warrants outstanding as of the effective times of the reverse stock split in accordance with the terms of each security based on the split ratio. Also, we reduced the number of shares reserved for issuance under our equity compensation plans proportionately based on the split ratios. Except for adjustments that resulted from the rounding up of fractional shares to the next whole share, the reverse stock split affected all stockholders uniformly and did not change any stockholder’s percentage ownership interest in our company. All share and related option and warrant information presented in this prospectus “the Company,” “we,” “us,”have been retroactively adjusted to reflect the reduced number of shares outstanding and “our” referthe increase in share price which resulted from these actions; however, common stock share and per share amounts in certain of the documents incorporated by reference herein have not been adjusted to AMERI Holdings Inc., and its subsidiaries together, unlessgive effect to the context indicates otherwise.
We were incorporated under the laws of the State of Delaware in February 1994 as Spatializer Audio Laboratories, Inc., which was a shell company immediately prior to ourthe completion of a “reverse merger” transaction on May 26, 2015, in which we causedwhereby Ameri100 Acquisition, Inc., a Delaware corporation and our newly created, wholly owned subsidiary, to bewas merged with and into Ameri and Partners Inc. (“Ameri and Partners”), a Delaware corporation (the “Merger”“2015 Merger”). As a result of the 2015 Merger, Ameri and Partners became ourAmeri’s wholly owned subsidiary with Ameri and Partners’ former stockholders acquiring a majority of the outstanding shares of ourAmeri common stock. The 2015 Merger was consummated under Delaware law pursuant to an Agreement of Merger and Plan of Reorganization, dated as of May 26, 2015 (the “Merger“2015 Merger Agreement”), and in connection with the 2015 Merger, weAmeri changed ourits name to AMERI Holdings, Inc. and doAmeri did business under the brand name “Ameri100”.
Securities offered by the selling stockholders | ||
Use of proceeds | ||
Plan of Distribution | The selling stockholders, and any of their pledgees, and successors-in-interest, may offer or sell the shares from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders may also resell the shares of common stock to or through underwriters, broker-dealers or agents, who may receive compensation in | |
common stock | Our common stock is listed on the Nasdaq Capital Market under the symbol “ENVB.” |
Investing in our securities involves a high degree of risk. ThisIn addition to the other information contained in this prospectus contains, and in the prospectus supplement applicable to each offering of our securities will contain, a discussion ofdocuments we incorporate by reference, you should carefully consider the risks applicable to an investmentunder the heading “Risk Factors” in our securities. Prior tothe 10-K before making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in this prospectus and the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, as amended, and any updates described in our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference, and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular offering.securities. The risks and uncertainties we have describeddiscussed in the 10-K are not the only ones we face.facing us. Additional risks and uncertainties not presently known to us, or that we currently deemsee as immaterial, may also affectharm our operations. The occurrence ofbusiness. If any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
Please also read carefully the information presented in this prospectus and any accompanying prospectus supplement, and particularly our forward-looking statements, by these cautionary statements.
- 17 -
All shares of our common stock offered by this prospectus are being registered for the accounts of the selling stockholders and we will not receive any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently intend to use the net proceeds from the sale of these shares. However, we will receive proceeds from the securities offered under this prospectusexercise price of the Warrants if the Warrants are exercised for cash. We intend to use those proceeds, if any, for general corporate purposes, includingpurposes.
Series B Warrants
Pursuant to the development and commercialization of our products, research and development, general and administrative expenses, license or technology acquisitions, and working capital and capital expenditures. We may also use the net proceedsTender Agreement, on December 31, 2020, we issued Series B Warrants to repay any debts and/or invest in or acquire complementary businesses, products, or technologies, although we have no current commitments or agreements with respect to any such investments or acquisitions as of the date of this prospectus. We have not determined the amount of net proceeds to be used specifically for the foregoing purposes. As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds of any sale of the securities. Pending use of the net proceeds, we intend to invest the proceeds in short-term, investment-grade, interest-bearing instruments.
January 2021 Warrants
In the January 2021 Private Placement that closed on January 14, 2021, the Company issued to the Subsequent Investors January 2021 Warrants to purchase up to 1,666,018 shares of Common Stock. The January 2021 Warrants are exercisable immediately upon issuance and terminate five years following issuance and are exercisable at an exercise price of $4.9519 per share, subject to adjustment.
The January 2021 Warrants and the January 2021 Warrant Shares were not registered under the Securities Act, were not offered pursuant to the shelf registration statement, and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder as a transaction by an issuer not involving a public offering.
To induce the Subsequent Investors into purchasing the January 2021 Warrants, the Company also entered into the January Registration Rights Agreement with the Subsequent Investors, pursuant to which, among other things, the Company agreed to prepare and file with the Securities and Exchange Commission this registration statement to register for resale of all of the January 2021 Warrant Shares.
February 2021 Warrants
In the February 2021 Private Placement that closed on February 11, 2021, the Company issued to the Subsequent Investors February 2021 Warrants to purchase up to 1,503,513 shares of Common Stock. The February 2021 Warrants are exercisable immediately upon issuance and terminate five years following issuance and are exercisable at an exercise price of $4.90 per share, subject to adjustment as set forth therein. A holder of February 2021 Warrants will not have the right to exercise any portion of its February 2021 Warrants if the holder, together with its affiliates, would beneficially own in excess of the beneficial ownership limitation; provided, however, that upon 61 days’ prior notice to the Company, the holder may increase or decrease the beneficial ownership limitation, provided that in no event shall the beneficial ownership limitation exceed 9.99%.
The February 2021 Warrants and the February 2021 Warrant Shares were not registered under the Securities Act, were not offered pursuant to the shelf registration statement, and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder as a transaction by an issuer not involving a public offering.
To induce the Subsequent Investors into purchasing the February 2021 Warrants, the Company also entered into the February Registration Rights Agreement with the Subsequent Investors, pursuant to which, among other things, the Company agreed to prepare and file with the Securities and Exchange Commission this registration statement to register for resale of all of the February 2021 Warrant Shares.
Palladium Warrants
In connection with its role as financial advisor to the Company in the prospectus supplement applicableJanuary 2021 Direct Offering, the January 2021 Private Placement, the February 2021 Direct Offering and the February 2021 Private Placement, the Company issued Palladium 155,493 warrants, with an exercise price of $4.9519 and 210,492 warrants with an exercise price of $4.90 on February 11, 2021. The Palladium Warrants and the Palladium Warrant Shares were not registered under the Securities Act and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder as a transaction by the issuer not involving a public offering.
Bonus Shares
On December 29, 2020 at the special meeting of Ameri stockholders held to approve the Tender Agreement, the shareholders ratified the Bonus Shares Proposal, resulting in the issuance of shares (the “Bonus Shares”) previously awarded by Ameri’s board of directors to certain officers and directors of the company in lieu of cash bonuses, with a total of 156,318 post-split shares being awarded on December 30, 2020.
Of these shares, 67,6351 had originally been awarded to officers and directors, subject to Ameri’s stockholders’ approval, on January 9, 2020, representing aggregate bonus payments of $675,000 divided by a price of $9.98, the closing price on the day immediately preceding board approval. A further 88,683 shares had been awarded to officers and directors subject to Ameri’s stockholders’ approval, and subject to continued service through the end of 2020, on October 19, 2020, represent aggregate bonus payments of $525,000 divided by a price of $5.92, the closing price on the day immediately preceding board approval, resulting in a total of 156,318 shares granted to officers and directors, as detailed on the table below.
Recipient | January Approval | October Approval | Total | |||||||||
Srinidhi Devanur | 25,050 | 42,230 | 67,280 | |||||||||
Brandon Gordon | 10,020 | 16,892 | 26,912 | |||||||||
Brent Kelton | 12,525 | 21,115 | 33,640 | |||||||||
Barry Kostiner | 20,040 | 8,446 | 28,486 | |||||||||
Total | 67,635 | 88,683 | 156,318 |
The shares issued to certain officers and directors of Ameri were issued on December 30, 2020. The issuance of these shares was exempt from the registration requirements of the Securities Act pursuant to an exemption provided by Section 4(a)(2) thereof as a transaction by an issuer not involving a public offering.
Dakar Settlement Shares
On January 11, 2021, the Company and Stacy Dakar entered into the General Release Agreement, pursuant to which the Company granted Ms. Dakar 14,121 shares of fully vested common stock in exchange for terminating the Consulting Agreement, dated as of June 1, 2019, by and between Ms. Dakar and Jay Pharma (the “Dakar Consulting Agreement”). The issuance of these shares was exempt from the registration requirements of the Securities Act pursuant to an exemption provided by Section 4(a)(2) thereof as a transaction by an issuer not involving a public offering.
1 All prices and share numbers have been adjusted to reflect the 1-for-4 reverse stock split.
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Relationships with the Selling Stockholders
Alpha has acted as an investor in numerous Enveric and Jay Pharma financings, including a bridge loan in the amount of $2,000,000 made to Jay Pharma pursuant to a particular seriessecured promissory note dated as of debtJanuary 10, 2020, as amended, a securities purchase agreement for $3,500,000 in Jay Pharma shares dated as of January 10, 2020, as amended, the indentures will not contain any covenant that restricts our abilityJanuary 2021 Direct Offering, the January 2021 Private Placement, the February 2021 Direct Offering and the February 2021 Private Placement.
Srinidhi Devanur served as executive chairman of Ameri prior to merge or consolidate, or sell, convey, transfer or otherwise disposethe Offer.
Brent Kelton served as chief executive officer of all or substantially all of our assets. However, any successorAmeri prior to or acquirer of such assets must assume all of our obligations under the indentures orOffer.
Barry Kostiner served as Ameri’s chief financial officer prior to the debt securities, as appropriate. IfOffer and currently provides consulting services to the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Brandon Gordon served as Executive Vice President, Business Development, Marketing and Alliances prior to the indentures with respectOffer.
Stacy Dakar provided certain consulting services to any series of debt securities that we may issue:
The Hewlett Fund LP has not been extended;
Alto has not been extended;
Iroquois Master Fund Ltd. has acted as an investor in numerous Enveric financings, including the holders of at least 25%January 2021 Direct Offering, the January 2021 Private Placement, the February 2021 Direct Offering and the February 2021 Private Placement.
Iroquois Capital Investment Group LLC has acted as an investor in aggregate principal amount ofnumerous Enveric financings, including the outstanding debt securities ofJanuary 2021 Direct Offering, the applicable series;January 2021 Private Placement, the February 2021 Direct Offering and
Hudson Bay Master Fund Ltd has acted as an investor in each applicable prospectus supplement any additional events of default relating tonumerous Enveric financings, including the relevant series of debt securities.
Palladium has acted as the Company’s financial advisor in numerous transactions, including the last bullet point above,Offer, the trustee orJanuary 2021 Direct Offering, the holders of at least 25% in aggregate principal amount ofJanuary 2021 Private Placement, the outstanding debt securities of that series, by notice to us in writing,February 2021 Direct Offering and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
Except with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
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Information About Selling Stockholder Offering
The shares of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders havecommon stock being offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock or preferredbeneficially owned by each selling stockholder, based on its ownership of the shares of common stock and warrants, as the case may be, purchasable upon theof April 1, 2021, assuming exercise of one warrant and the price at which thesewarrants held by the selling stockholders on that date, without regard to any limitations on exercises.
The third column lists the shares may be purchased upon such exercise;
This prospectus generally covers the resale of any merger, consolidation, sale or other dispositionthe sum of our business on(i) the warrant agreements and the warrants;
Under the terms of the securitiesWarrants a selling stockholder may not exercise the Warrants to the extent such exercise would cause such selling stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed 4.99% (or, at the election of the warrantholder, 9.99%) of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants; and
The selling stockholders named in the applicable indenture; or
Ownership Before Offering | Ownership After Offering | |||||||||||||||
Selling Stockholders | Number of shares of common stock owned | Maximum Number of shares offered | Number of shares of common stock owned | Percentage of common stock owned | ||||||||||||
Alpha Capital Anstalt (1) | 3,659,660 | (2) | 3,093,316 | (3) | 566,344 | 2.9 | % | |||||||||
Srinidhi Devanur (4) | 130,044 | (5) | 67,280 | 62,764 | * | % | ||||||||||
Brent Kelton (6) | 44,486 | (7) | 33,640 | 10,846 | * | % | ||||||||||
Barry Kostiner (8) | 28,486 | (9) | 28,486 | 0 | 0 | % | ||||||||||
Brandon Gordon (10) | 26,912 | (11) | 26,912 | 0 | 0 | % | ||||||||||
Stacy Dakar | 14,121 | (12) | 14,121 | 0 | 0 | % | ||||||||||
The Hewlett Fund LP (13) | 170,618 | (14) | 170,618 | 0 | 0 | % | ||||||||||
Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B (15) | 288,219 | (16) | 288,219 | 0 | 0 | % | ||||||||||
Iroquois Master Fund Ltd. (17) | 311,994 | (18) | 311,994 | 0 | 0 | % | ||||||||||
Iroquois Capital Investment Group LLC (19) | 579,417 | (20) | 579,417 | 0 | 0 | % | ||||||||||
Hudson Bay Master Fund (21) | 517,890 | (22) | 517,890 | 0 | 0 | % | ||||||||||
Palladium Holdings, LLC (23) | 483,184 | (24) | 365,985 | (25) | 117,199 | * | % |
* Less than 1%
(1) Konrad Ackermann has sole voting and dispositive power over the securities held for the account of this selling stockholder. The selling stockholder’s address is Lettstrasse 32, 9490 Vaduz, Principality of Liechtenstein.
(2) Represents (i) 1,791,923 shares of preferredcommon stock and warrants in any combination. Each unit will be issued so that the holderissuable upon exercise of the unit is alsoSeries B Warrants, (ii) 833,009 shares of common stock issuable upon exercise of the holderJanuary 2021 Warrants, (iii) 468,384 shares issuable upon exercise of each security included in the unit. Thus,February 2021 Warrants, (iv) 565,831 shares of common stock issuable upon exercise of certain other warrants and (v) 513 shares of common stock.
(3) Represents (i) 1,791,923 shares of common stock issuable upon exercise of the holderSeries B Warrants, (ii) 833,009 shares issuable upon exercise of the January 2021 Warrants and (iii) 468,384 shares issuable upon exercise of the February 2021 Warrants.
(4) Mr. Devanur was a unit will havedirector of Ameri prior to the rightsOffer.
(5) Represents (i) 67,280 shares of common stock issued as Bonus Shares and obligations(ii) 62,764 shares of common stock previously acquired.
(6) Mr. Kelton was chief executive officer of Ameri prior to the Offer.
(7) Represents (i) 33,640 shares of common stock issued as Bonus Shares and (ii) 10,846 shares of common stock previously acquired, including 45 shares owned by a holderself-directed IRA.
(8) Mr. Kostiner was chief financial officer of each included security. The unit agreement under which a unit isAmeri prior to the Offer.
(9) Represents 28,486 shares of common stock issued may provide thatas the Bonus Shares.
(10) Mr. Gordon was Executive Vice President, Business Development, Marketing and Alliances of Ameri prior to the Offer.
(11) Represents 26,912 shares of common stock issued as Bonus Shares.
(12) Represents 14,121 shares of common stock issued pursuant to the General Release Agreement.
(13) Martin Chopp has sole voting and dispositive power over the securities included inheld for the unit may not be held or transferred separately, at any time or at any time before a specified date.
(14) Represents 124,951 shares of common stock issuable upon exercise of the seriesJanuary 2021 Warrants and 45,667 shares of units, including:
(15) Ayrton Capital LLC, the investment manager to Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B, has discretionary authority to vote and dispose of the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and may be deemed to be the beneficial owner of these shares. Waqas Khatri, in his capacity as Managing Member of Ayrton Capital LLC, may also be deemed to have investment discretion and voting power over the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B. Ayrton Capital LLC and Mr. Khatri each disclaim any beneficial ownership of these shares. The address of Ayrton Capital LLC is 55 Post Rd West, 2nd Floor, Westport, CT 06880.
(16) Represents 83,301 shares of common stock issuable upon exercise of the January 2021 Warrants and 204,918 shares of common stock issuable upon exercise of the February 2021 Warrants.
(17) Richard Abbe has sole voting and dispositive power over the securities held for the account of this selling stockholder. The selling stockholder’s address is 125 Park Avenue, 25th Floor, New York, NY 10017.
(18) Represents 160,354 shares of common stock issuable upon exercise of the January 2021 Warrants and 151,640 shares of common stock issuable upon exercise of the February 2021 Warrants.
(19) Richard Abbe has sole voting and dispositive power over the securities held for the account of this selling stockholder. The selling stockholder’s address is 125 Park Avenue, 25th Floor, New York, NY 10017.
(20) Represents 297,801 shares of common stock issuable upon exercise of the January 2021 Warrants and 281,616 shares of common stock issuable upon exercise of the February 2021 Warrants.
(21) Hudson Bay Capital Management LP, the investment manager of Hudson Bay Master Fund Ltd. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities. The selling stockholder’s address is 777 Third Ave, 30th Floor, New York, NY 10017.
(22) Represents 166,602 shares of common stock issuable upon exercise of the January 2021 Warrants and 351,288 shares of common stock issuable upon exercise of the February 2021 Warrants.
(23) Joel Padowitz has sole voting and dispositive power over the securities held for the account of this selling stockholder. The selling stockholder’s address is 10 Rockefeller Plaza, Suite 909, New York, NY 10020.
(24) Represents 365,985 shares of common stock issuable upon exercise of the Palladium Warrants, 92,939 shares of common stock issuable upon the exercise of certain other Enveric warrants and 24,260 shares of common stock issuable upon the exercise of certain Ameri warrants.
(25) Represents 365,985 shares of common stock issuable upon exercise of the Palladium Warrants.
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Each selling stockholder of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
● | block trades in which the broker-dealer will attempt to sell the securities 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 made after the effective date of the registration statement; | |
● | in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security; | |
● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
● | a combination of any such methods of sale; or | |
● | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell securities under Rule 144 or any other exemption from timeregistration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to time:
In connection with the sale of the securities underwriters, dealers or agentsinterests therein, the selling stockholders may receive compensation from usenter into hedging transactions with broker-dealers or from purchasersother financial institutions, which may in turn engage in short sales of the common stock for whom they act as agentssecurities in the formcourse of discounts, concessionshedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or commissions. Underwriters may sellloan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or through dealers,other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and those dealers may receive compensation in the form of discounts, concessionsany broker-dealers or commissions from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participateare involved in the distribution of the securities, and any institutional investors or others that purchase common stock directly and then resellselling the securities may be deemed to be underwriters, and“underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any discounts or commissions received by them from ussuch broker-dealers or agents and any profit on the resale of the common stocksecurities purchased by them may be deemed to be underwriting commissions or discounts and commissions under the Securities Act.
The Company is required to pay certain fees and underwriters with indemnificationexpenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify certain of the selling stockholders against particular civilcertain losses, claims, damages and liabilities, including liabilities under the Securities Act,Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders without registration and without regard to any volume or contributionmanner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in overallotment, stabilizing transactions, short covering transactionsmarket making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and penalty bids in accordancethe rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Regulation MRule 172 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Act). Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities at any time.
The validity of the issuance of the securities offered herebyby this prospectus will be passed upon for us by Sheppard, Mullin, Richter & HamptonHaynes and Boone, LLP, New York, NY. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
The financial statements of the CompanyEnveric as of December 31, 20182020 and 20172019 and for each of the two years in the period ended December 31, 20182020 incorporated by reference ininto this Prospectusprospectus have been so incorporated in reliance on the report of Ram Associates, CPA, anaudited by Marcum LLP, independent registered public accounting firm, as set forth in their report thereon. Such financial statements are incorporated herein by reference in reliance upon the report of such firm given upon theirits authority as experts in accounting and auditing.
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We are subject to the Securities Act. As permitted by the SEC’s rules, this prospectus and any prospectus supplement, which form a partinformational requirements of the registration statement, do not contain all the information that is includedExchange Act, and in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily completeaccordance therewith file annual, quarterly and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.
We make available free of charge on or through our website at http:https://www.sec.gov. You can also obtain copiesenveric.com/, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of materialsthe Exchange Act, as soon as reasonably practicable after we electronically file such material with or otherwise furnish it to the SEC.
We have filed with the SEC from our website found at www.ameri100.com. Information on our website does not constitute a part of, nor is it incorporated in any way, into this prospectus and should not be relied upon in connection with making an investment decision.
We have not incorporated by reference additionalinto this prospectus the information on our website, and exhibits. you should not consider it to be a part of this prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC permitsallows us to “incorporate by reference” the information contained in documents we filehave filed with the SEC,it, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporateddocuments. The information we incorporate by reference is considered to bean important part of this prospectus, and you should read it with the same care that you read this prospectus. Informationlater information that we file later with the SEC will automatically update and supersede the information that is either contained, or incorporatedthis information. We specifically are incorporating by reference in this prospectus, and will be considered to be a part of this prospectus from the date thosefollowing documents are filed. We have filed with the SEC and hereby incorporate by reference in this prospectus:
● | our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on April 1, 2021; | |
● | our Current Reports on Form 8-K filed with the SEC on January 6, 2021, January 6, 2021, as amended by Form 8-K/A filed with the SEC on January 11, 2021, and further amended by Form 8-K/A filed with the SEC on February 9, 2021, January 12, 2021, as amended by Form 8-K/A filed with the SEC on January 13, 2021, January 15, 2021, February 11, 2021, February 12, 2021, February 26, 2021, March 11, 2021 and March 23, 2021 respectively; and | |
● | the description of our common stock contained in Exhibit 4.1, “Description of Securities,” to the 10-K. |
All reports and definitive proxy or information statements subsequently filed withafter the SEC on March 26, 2019, as amended on April 30, 2019;
Any statement contained in this prospectusherein or in aany document incorporated or deemed to be incorporated by reference into this prospectus willshall be deemed to be modified or superseded for purposes of the registration statement of which this prospectus forms a part to the extent that a statement contained in this prospectus or any other subsequently filed document thatwhich also is or is deemed to be incorporated by reference into this prospectus modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of the statement.
You may request, and we willshould rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectus.
We will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus (other than an exhibit to these filings, at no cost,unless we have specifically incorporated that exhibit by calling us at (770) 935-4152 or by writingreference in this prospectus). Any such request should be addressed to us at:
Enveric Biosciences, Inc.
Attn: John Van Buiten
4851 Tamiami Trail N, Suite 200
Naples, FL 34103
You may also access the documents incorporated by reference in this prospectus through our website at https://enveric.com/. Except for the following address:specific incorporated documents listed above, no information available on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms a part.
5,497,878 Shares of Common Stock and Shares of Common Stock Underlying Warrants
PROSPECTUS
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate of the feesestimated costs and expenses relatingpayable by the registrant expected to be incurred in connection with the issuance and distribution of the securitiescommon stock being registered hereby other(other than underwriting discounts and commissions, all of which shall be borne by the Registrant.commissions). All of such fees and expenses are estimates, except for the SEC registration fee andfee.
Amount to be Paid | ||||
SEC registration fee | $ | 3,120 | ||
Printing fees and expenses | 2,000 | |||
Legal fees and expenses | 15,000 | |||
Transfer agent and registrar fees | 1,000 | |||
Accounting fees and expenses | 10,000 | |||
Miscellaneous | 1,000 | |||
32,120.00 | ||||
Total | $ | 32,120.00 |
Each of the FINRA filing fee, are estimated:
SEC registration fee | $ | 3,030 | ||
Legal fees and expenses | * | |||
Printing fees and expenses | * | |||
Accounting fees and expenses | * | |||
Miscellaneous fees and expenses | * | |||
Total | $ | * |
Item 15. Indemnification of expensesDirectors and Officers.
Set forth below is a description of any offeringcertain provisions of securities.
Limitation on Liability of Directors
Article IX of the Certificate of Incorporation and Article VIII of the Bylaws eliminate the personal liability of directors shall not be personally liable to usthe Company or ourthe Company’s stockholders for monetary damages for breach of fiduciary duty, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
Indemnification and Insurance
In accordance with Section 145 of the DGCL, Article VIII of the Bylaws grants the Company’s directors and officers a right to indemnification for all expenses, judgments, fines and amounts paid in settlement relating to civil, criminal, administrative or investigative actions, suits or proceedings to which they are a party (1) by reason of the fact that such person is or was a director or officer of the Company, or (2) by reason of the fact that such person is or was a director or officer of the Company serving at the request of the Company as a director. Ourdirector, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
In addition, Article VIII of the Bylaws provideprovides that directors and officers therein described shall be indemnified to the fullest extent permitted by Delaware law, we willthe DGCL, and if the DGCL is subsequently amended to expand further the indemnification or advancements permitted, then the Company shall indemnify such directors and advance expensesofficers to athe fullest extent permitted by the DGCL, as so amended.
The Certificate of Incorporation and the Bylaws authorize the Company to purchase insurance for any director, officer, employee or officer in an action brought by reasonagent of the fact that the directoranother corporation, partnership, joint venture, trust or officer is or was our director or officer, or is or was serving at our request as a director or officer of any other entity, against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith. We may maintain insurance to protect a director or officerenterprise, against any expense, liability or loss, whether or not wethe Company would have the power to indemnify such personagainst any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Company shall have the power to indemnify him or her against such expense, liability or loss under Delaware law.
We are also permitted to apply for insurance on behalf of any stockholder, to seek non-monetary relief such as injunctiondirector, officer, employee or rescission inother agent for liability arising out of his actions, whether or not the eventGeneral Corporation Law of a breachthe State of a director’s duty of care. The provisions will not alter the liability of directors under the federal securities laws. In addition, your investment may be adversely affected to the extent that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. There is currently no pending litigation or proceeding against any of our directors, officers or employees for which indemnification is sought.
Item 16. Exhibits.
The following exhibits are filed with this Registration Statement.
The agreements included or incorporated by reference as exhibits to this registration statement contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
The undersigned registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this registration statement not misleading.
Exhibit | ||
Number | Description of Document | |
5.1* | Boone, LLP | |
23.1** | Consent of Marcum LLP, independent registered public accounting firm | |
23.3* | ||
Consent of | ||
24.1* | ||
Power of Attorney (included | ||
* | Previously filed |
** | Filed herewith. |
(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) Toto include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) Toto reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percenta 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) Toto 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), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, , however, , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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 of 1933 and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Suwanee,Naples, State of Georgia,Florida, on August 14, 2019.
By: | /s/ David Ian Johnson | ||
Name: | |||
Title: | Chief Executive Officer and Chairman of the Board of Directors |
Signature | Title | Date | ||||
/s/ David Ian Johnson | Chief Executive Officer and Chairman of the Board of Directors | |||||
(Principal Executive Officer) | ||||||
/s/ John Van Buiten | Chief Financial Officer | |||||
(Principal Financial Officer and Principal Accounting Officer) | ||||||
* | Director | April 2,2021 | ||||
Sol Mayer | ||||||
* | April 2, 2021 | |||||
* | Director | April 2, 2021 | ||||
Marcus Schabacker | ||||||
/s/ Douglas Lind | Director | |||||
* By: | /s/ David Ian Johnson | |||
David Ian Johnson | ||||
As Attorney-in-Fact |
23 |