Ekso Bionics Holdings, Inc.
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of
incorporation or organization) |
99-0367049
(I.R.S. Employer
Identification Number) |
101 Glacier Point, Suite A
San Rafael, California 94901
(510) 984-1761
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices) |
Scott G. Davis
Chief Executive Officer
101 Glacier Point, Suite A
San Rafael, California 94901
(510) 984-1761
(Name, address, including zip code, and telephone
number, including area code, of agent for service) |
Copies to:
Mark B. Baudler
Austin D. March
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300 |
From
time to time after the effective date of this registration statement.
(Approximate date of commencement of proposed sale to the public)
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box: ¨
If any of
the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box. x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the
following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
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Accelerated
filer |
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Non-accelerated
filer |
x |
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Smaller
reporting company |
x |
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Emerging
growth company |
¨ |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨ |
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. The 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.
Subject
to Completion, dated June 12, 2023
Prospectus
Ekso Bionics Holdings, Inc.
$75,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Subscription Rights
Units
We may issue from time to time in one or more
offerings, in amounts, at prices and on terms determined at the time of offering, any combination of (i) common stock, (ii) preferred
stock, (iii) debt securities, (iv) warrants, (v) subscription rights and (vi) units. This prospectus describes the
general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms
of these securities in supplements to this prospectus, which will also describe the specific manner in which these securities will be
offered and may also supplement, update or amend information contained in this prospectus. You should read this prospectus and any applicable
prospectus supplement before you invest. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed
$75,000,000.
The securities may be sold directly to you, through
agents or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and
describe their compensation in a prospectus supplement. The price to the public of those securities and the net proceeds we expect to
receive from that sale will also be set forth in a prospectus supplement. For general information about the distribution of securities
offered, please see “Plan of Distribution” on page 13 of this prospectus.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “EKSO.” Each prospectus supplement will indicate whether the securities offered thereby will be listed
on any securities exchange.
Investing in these securities involves risks.
Please carefully read the information under the headings “Risk Factors” beginning on page 3 of this prospectus, the applicable
prospectus supplement and “Item 1A – Risk Factors” of our most recent report on Form 10-K or 10-Q that is incorporated
by reference in this prospectus before you invest in our securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
TABLE OF CONTENTS
About
this Prospectus
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission (the “SEC”), using a “shelf” registration process. Under
this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or
more offerings for an aggregate offering price of up to $75,000,000.
This prospectus provides you with a general description
of the securities that may be offered. Each time we sell securities, we will provide one or more prospectus supplements that will contain
specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any applicable prospectus supplement together with the additional information
described under the heading “Where You Can Find More Information.”
We have not authorized anyone to provide you with
information that is different from that contained, or incorporated by reference, in this prospectus, any applicable prospectus supplement
or in any related free writing prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. This prospectus and any applicable prospectus supplement or any related free writing prospectus
do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the applicable
prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer
or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents
incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business, financial
condition, results of operations and prospects may have changed materially since those dates.
Prospectus
Summary
This
summary highlights selected information that is presented in greater detail elsewhere, or incorporated by reference, in this prospectus.
It does not contain all of the information that may be important to you and your investment decision. Before investing in our securities,
you should carefully read this entire prospectus, including the matters set forth under the section of this prospectus captioned “Risk
Factors” and the financial statements and related notes and other information that we incorporate by reference herein, including
our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q. Unless the context indicates otherwise,
references in this prospectus to “Ekso,” “Ekso Bionics,” “we,” “our” and “us”
refer, collectively, to Ekso Bionics Holdings, Inc., a Nevada corporation, and its subsidiaries taken as a whole.
Company Overview
We
design, develop, and market exoskeleton products that augment human strength, endurance and mobility. Our exoskeleton technology serves
multiple markets and can be utilized both by able-bodied persons and by persons with physical disabilities. We have sold or leased devices
that (i) enable individuals with neurological conditions affecting gait, including acquired brain injury (ABI), spinal cord injury
(SCI) and multiple sclerosis (MS), to rehabilitate, and in some cases, to walk again, (ii) assist
individuals with a broad range of upper extremity impairments, and (iii) allow industrial workers to perform difficult repetitive
work for extended periods.
We
believe that the commercial opportunity for exoskeleton technology adoption is accelerating as a result of recent advancements in material
technologies, electronic and electrical engineering, control technologies, and sensor and software development. Taken individually, many
of these advancements have become ubiquitous in peoples’ everyday lives. We believe that we have learned how to integrate these
existing technologies and wrap the result around a human being efficiently, elegantly, and safely, supported by an industry leading intellectual
property portfolio. We further believe that we can do so across a broad spectrum of applications, from persons with lower limb paralysis
to able-bodied users.
Corporate Information
Our principal executive office
is located at 101 Glacier Point, Suite A, San Rafael, California, 94901 and our telephone number is (510) 984-1761.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at www.sec.gov. Copies of certain information filed by us with the SEC are also available, free of charge, on our website
at www.eksobionics.com. Information accessible on or through our website is not a part of this prospectus. Copies of our annual
reports on Form 10-K will be furnished without charge to any person who submits a written request directed to the attention of our
Secretary, at our offices located at 101 Glacier Point, Suite A, San Rafael, California, 94901.
The Securities That May Be Offered
We may offer or sell
common stock, preferred stock, debt securities, warrants, subscription rights and units in one or more offerings and in any combination.
The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed $75,000,000. Each time securities are
offered with this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and terms of the
securities being offered and the net proceeds we expect to receive from that sale.
The securities may be
sold to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth in the section of this prospectus
captioned “Plan of Distribution.” Each prospectus supplement will set forth the names of any underwriters, dealers, agents
or other entities involved in the sale of securities described in that prospectus supplement and any applicable fee, commission or discount
arrangements with them.
Common Stock
We may offer shares of
our common stock, par value $0.001 per share, either alone or underlying other registered securities convertible into our common stock.
Holders of our common stock are entitled to receive dividends declared by our board of directors out of funds legally available for the
payment of dividends, subject to rights, if any, of preferred stockholders. Each holder of common stock is entitled to one vote per share.
The holders of common stock have no preemptive rights.
Preferred Stock
Our
board of directors has the authority, subject to limitations prescribed by Nevada law, to issue preferred stock in one or more
series, to establish from time to time the number of shares to be included in each series, and to fix the designation, powers, preferences
and rights of the shares of each series and any of its qualifications, limitations or restrictions, in each case without further vote
or action by our stockholders. Each series of preferred stock offered by us will be more fully described in the particular prospectus
supplement that will accompany this prospectus, including redemption provisions, rights in the event of our liquidation, dissolution or
winding up, voting rights and rights to convert into common stock.
Debt Securities
We may offer secured
or unsecured obligations in the form of one or more series of senior or subordinated debt. The senior debt securities and the subordinated
debt securities are together referred to in this prospectus as the “debt securities.” The subordinated debt securities generally
will be entitled to payment only after payment of our senior debt. Senior debt generally includes all debt for money borrowed by us, except
debt that is stated in the instrument governing the terms of that debt to be not senior to, or to have the same rank in right of payment
as, or to be expressly junior to, the subordinated debt securities. We may issue debt securities that are convertible into shares of our
common stock or preferred stock.
The debt securities will
be issued under an indenture between us and a trustee to be identified in an accompanying prospectus supplement. We have summarized the
general features of the debt securities to be governed by the indenture in this prospectus and the form of indenture has been filed as
an exhibit to the registration statement of which this prospectus forms a part. We encourage you to read the indenture.
Warrants
We may offer warrants
for the purchase of common stock, preferred stock or debt securities. We may offer warrants
independently or together with other securities.
Subscription Rights
We may offer subscription
rights to purchase our common stock, preferred stock, debt securities, warrants or units consisting
of some or all of these securities. These subscription rights may be offered independently or together with any other security
offered hereby and may or may not be transferable by the stockholder receiving the subscription rights in such offering.
Units
We may offer units comprised
of one or more of the other classes of securities described in this prospectus in any combination. Each unit will be issued so that the
holder of the unit is also the holder of each security included in the unit.
Risk
Factors
An investment in our securities involves a high
degree of risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable
to an investment in our securities. Prior to making a decision about investing in our securities, you should carefully consider the specific
factors discussed under the section in the applicable prospectus supplement captioned “Risk Factors,” 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 “Part I—Item 1A—Risk
Factors” of our most recent Annual Report on Form 10-K and in “Part II—Item 1A—Risk Factors”
in our most recent Quarterly Report on Form 10-Q filed subsequent to such Form 10-K that are incorporated herein by reference,
as may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties
we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem
immaterial may also affect our operations.
Forward-Looking
Statements
This prospectus, each prospectus supplement and
the information incorporated by reference in this prospectus and each prospectus supplement contain certain statements that constitute
“forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities
Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. The words “believe,” “may,”
“will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,”
“could,” “would,” “project,” “plan,” “potentially,” “likely,”
and similar expressions and variations thereof are intended to identify forward-looking statements, but are not the exclusive means of
identifying such statements. Those statements appear in this prospectus, any accompanying prospectus supplement and the documents incorporated
herein and therein by reference, particularly in the sections captioned “Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and include statements regarding the intent, belief or current expectations
of our management that are subject to known and unknown risks, uncertainties and assumptions. You are cautioned that any such forward-looking
statements are not guarantees of future performance and involve risks and uncertainties, and that actual results may differ materially
from those projected in the forward-looking statements as a result of various factors.
Because forward-looking statements are inherently
subject to risks and uncertainties, some of which cannot be predicted or quantified, you should not rely upon forward-looking statements
as predictions of future events. The events and circumstances reflected in the forward-looking statements may not be achieved or occur
and actual results could differ materially from those projected in the forward-looking statements. Except as required by applicable law,
including the securities laws of the United States and the rules and regulations of the SEC, we do not plan to publicly update or
revise any forward-looking statements contained herein after we distribute this prospectus, whether as a result of any new information,
future events or otherwise.
In addition, statements that “we believe”
and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available
to us as of the date of this prospectus, and although we believe such information forms a reasonable basis for such statements, such information
may be limited or incomplete, and our statements should not be read to indicate that we have conducted a thorough inquiry into, or review
of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly
rely upon these statements.
This prospectus and the documents incorporated
by reference in this prospectus may contain market data that we obtain from industry sources. These sources do not guarantee the accuracy
or completeness of the information. Although we believe that our industry sources are reliable, we do not independently verify the information.
The market data may include projections that are based on a number of other projections. While we believe these assumptions to be reasonable
and sound as of the date of this prospectus, actual results may differ from the projections.
Use
of Proceeds
We
will retain broad discretion over the use of the net proceeds to us from the sale of our securities under this prospectus. Unless otherwise
provided in the applicable prospectus supplement, we currently expect to use the net proceeds that we receive from this offering
for working capital and other general corporate purposes. We may also use a portion of the net proceeds to acquire, license or invest
in complementary products, technologies or businesses; however, we currently have no agreements or commitments to complete any such transaction.
The expected use of net proceeds of this offering represents our current intentions based on our present plans and business conditions.
We cannot specify with certainty all of the particular uses for the net proceeds to be received upon the closing of this offering.
Description
of Capital Stock
The description of our capital stock is incorporated
by reference to Exhibit 4.9 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the
SEC on March 28, 2023.
Description
of Debt Securities
The following description, together with the additional
information we include in any applicable prospectus supplement, summarizes certain general terms and provisions of the debt securities
that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms
of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general terms and provisions
described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities
may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus,
the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture
between us and a trustee to be identified in an accompanying prospectus supplement. We have summarized select portions of the indenture
below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement of which this
prospectus forms a part and you should read the indenture for provisions that may be important to you. In the summary below, we have included
references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary
and not defined herein have the meanings specified in the indenture.
General
The terms of each series of debt securities will
be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution
of our board of directors, in an officer’s certificate or by a supplemental indenture. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities
under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We
will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being
offered the aggregate principal amount and the following terms of the debt securities, if applicable:
| • | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| • | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
| • | any limit upon the aggregate principal amount of the debt securities; |
| • | the date or dates on which the principal of the securities of the series is payable; |
| • | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable
on any interest payment date; |
| • | the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in
respect of the debt securities may be delivered; |
| • | the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
| • | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and conditions upon
which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| • | the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
| • | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| • | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
| • | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than
the principal amount; |
| • | the currency of denomination of the debt securities, which may be United States dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
| • | the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities
will be made; |
| • | if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other
than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments
will be determined; |
| • | the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined,
if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
| • | any provisions relating to any security provided for the debt securities; |
| • | any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the
debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt
securities; |
| • | any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt
securities; |
| • | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; |
| • | any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that
series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of
the securities; and |
| • | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination,
if any, of such guarantees. |
We may issue debt securities that provide for
an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to
the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of
the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and
interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will
provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus
supplement.
Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of a clearing agency registered under the Exchange Act, which we refer to as the
depositary, or a nominee of the depositary (we will refer to any debt security represented by a global debt security as a “book-entry
debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated
security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under
the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated
form.
Certificated Debt Securities
You may transfer or exchange certificated debt
securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for
any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt
securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the
issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry
debt securities will be deposited with, or on behalf of, the depositary, and registered in the name of the depositary or a nominee of
the depositary.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in
control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into,
or convey, transfer or lease all or substantially all of our properties and assets to any person, which we refer to as a successor person,
unless:
| • | we are the surviving corporation or the successor person (if other than us) is a corporation organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and |
| • | immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. |
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Events of Default
“Event of Default” means with respect
to any series of debt securities, any of the following:
| • | default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
| • | default in the payment of principal of any security of that series at its maturity; |
| • | default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that
has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice from the trustee, or we and the trustee receive written notice from the
holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture; |
| • | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
| • | any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus
supplement. |
No Event of Default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the
indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of
any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will
describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect
thereof.
If an Event of Default with respect to debt securities
of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount
of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities
of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately
due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time
after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest,
if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse
to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to
it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. Subject
to certain rights of the trustee, 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.
No holder of any debt security of any series will
have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver
or trustee, or for any remedy under the indenture, unless:
| • | that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of
that series; and |
| • | the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request,
and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee
has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any
interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of
payment.
The indenture requires us, within 120 days after
the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default or Event of Default
occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the
trustee shall send to each securityholder of the securities of that series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides
that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding
notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the trustee may modify, amend or supplement
the indenture or the debt securities of any series without the consent of any holder of any debt security:
| • | to cure any ambiguity, defect or inconsistency; |
| • | to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
| • | to provide for uncertificated securities in addition to or in place of certificated securities; |
| • | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
| • | to surrender any of our rights or powers under the indenture; |
| • | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
| • | to comply with the applicable procedures of the applicable depositary; |
| • | to make any change that does not adversely affect the rights of any holder of debt securities; |
| • | to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the
indenture; |
| • | to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of
the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
| • | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture
Act. |
We may also modify and amend the indenture with
the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security
then outstanding if that amendment will:
| • | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| • | reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
| • | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
| • | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| • | waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration
of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default that resulted from such acceleration); |
| • | make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
| • | make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to
receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such
payment and to waivers or amendments; or |
| • | waive a redemption payment with respect to any debt security. |
Except for certain specified provisions, the holders
of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities
of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest
on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the
debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee,
in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S.
dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest
and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the
United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders
of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants
The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
| • | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement;
and |
| • | any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities
of that series. |
We refer to this as covenant defeasance. The conditions
include:
| • | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, government obligations of the government that issued or caused to be issued such currency, that, through the
payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and
interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments
in accordance with the terms of the indenture and those debt securities; |
| • | such deposit will not result in a breach or violation of, or constitute a default under the indenture or any other agreement to which
we are a party; |
| • | no Default or Event of Default with respect to the applicable series of debt securities shall have occurred or is continuing on the
date of such deposit; and |
| • | delivering to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United
States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the
debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the
deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. |
No Personal Liability of Directors, Officers, Employees or Stockholders
None of our past, present or future directors,
officers, employees or stockholders, as such, will have any liability for any of our obligations under the debt securities or the indenture
or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder
waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that
such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New
York.
The indenture will provide that we, the trustee
and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities
or the transactions contemplated thereby.
The indenture will provide that any legal suit,
action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in
the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably
submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court)
to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding
brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
Description
of Warrants
We may issue warrants to purchase debt
securities, preferred stock or common stock. We may offer warrants separately or together with one or more additional warrants,
debt securities, preferred stock or common stock, or any combination of those securities
in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the applicable prospectus
supplement will specify whether those warrants may be separated from the other securities in the unit prior to the expiration date of
the warrants. The applicable prospectus supplement will also describe the following terms of any warrants:
| • | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
| • | whether the warrants are to be sold separately or with other securities as parts of units; |
| • | whether the warrants will be issued in definitive or global form or in any combination of these forms, although, in any case, the
form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit; |
| • | any applicable material U.S. federal income tax consequences; |
| • | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
| • | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
| • | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
| • | the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased upon exercise of the
warrants; |
| • | if applicable, the designation and terms of the debt securities, preferred stock or common stock
with which the warrants are issued and the number of warrants issued with each security; |
| • | if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities, preferred stock or common stock will be separately transferable; |
| • | the number of shares of preferred stock or the number of shares of common stock purchasable upon exercise of a warrant and the price
at which those shares may be purchased; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | information with respect to book-entry procedures, if any; |
| • | the antidilution provisions, and other provisions for changes to or adjustment in the exercise price, of the warrants, if any; |
| • | any redemption or call provisions; and |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange or exercise of the warrants. |
The descriptions of the warrants in this prospectus
and in any prospectus supplement are summaries of the material provisions of the applicable warrant agreements. These descriptions do
not restate those warrant agreements in their entirety and may not contain all the information that you may find useful. We urge you to
read the applicable warrant agreements because they, and not the summaries, define your rights as holders of the warrants. For more information,
please review the forms of the relevant warrant agreements, which will be filed with the SEC promptly after the offering of the warrants
and will be available as described in the section of this prospectus captioned “Where You Can Find More Information.
Description
of Subscription Rights
We may issue subscription rights to purchase our
common stock, preferred stock, debt securities, warrants or units consisting of some or all of these
securities. These subscription rights may be offered independently or together with any other security offered hereby and may or
may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or
other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription
rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering, including some or all of the
following:
| • | the price, if any, for the subscription rights; |
| • | the exercise price payable for our common stock, preferred stock, debt securities, warrants
or units consisting of some or all of these securities upon the exercise of the subscription rights; |
| • | the number of subscription rights to be issued to each stockholder; |
| • | the number and terms of our common stock, preferred stock, debt securities, warrants or units
consisting of some or all of these securities which may be purchased per each subscription right; |
| • | the extent to which the subscription rights are transferable; |
| • | any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights; |
| • | the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall
expire; |
| • | the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities or
an over-allotment privilege to the extent the securities are fully subscribed; and |
| • | if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection
with the offering of subscription rights. |
The descriptions of the subscription rights in
this prospectus and in any prospectus supplement are summaries of the material provisions of the applicable subscription right agreements.
These descriptions do not restate those subscription right agreements in their entirety and may not contain all the information that you
may find useful. We urge you to read the applicable subscription right agreements because they, and not the summaries, define your rights
as holders of the subscription rights. For more information, please review the forms of the relevant subscription right agreements, which
will be filed with the SEC promptly after the offering of subscription rights and will be available as described in the section of this
prospectus captioned “Where You Can Find More Information.”
Description
of Units
We may issue units comprising two or more securities
described in this prospectus in any combination. For example, we might issue units consisting of a combination of debt securities and
warrants to purchase common stock. The following description sets forth certain general terms and provisions of the units that we may
offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions
may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of
the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of
each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included
in the unit may not be held or transferred separately at any time or at any time before a specified date.
The prospectus supplement relating to any particular
issuance of units will describe the terms of those units, including, to the extent applicable, the following:
| • | the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
| • | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
and |
| • | whether the units will be issued in fully registered or global form. |
A copy of the forms of the unit agreement and the
unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those
documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement
and the related unit certificate, see the section of this prospectus captioned “Where You Can Find More Information.”
Plan
of Distribution
We may sell securities:
| • | directly to purchasers; or |
| • | through a combination of any of these methods of sale. |
In addition, we may issue the securities as a
dividend or distribution or in a subscription rights offering to our existing securityholders.
We may directly solicit offers to purchase securities
or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that
could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay. Any such agent will be acting
on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment
basis. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described
in the applicable prospectus supplement.
The distribution of the securities may be effected
from time to time in one or more transactions:
| • | at a fixed price or prices that may be changed from time to time; |
| • | at market prices prevailing at the time of sale; |
| • | at prices related to such prevailing market prices; or |
Each prospectus supplement will describe the method
of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the
securities of a particular series will describe the terms of the offering of the securities, including the following:
| • | the name of the agent or any underwriters; |
| • | the public offering or purchase price; |
| • | if applicable, the names of any selling securityholders; |
| • | any discounts and commissions to be allowed or paid to the agent or underwriters; |
| • | all other items constituting underwriting compensation; |
| • | any discounts and commissions to be allowed or paid to dealers; and |
| • | any exchanges on which the securities will be listed. |
If any underwriters or agents are utilized in
the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement
with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters
or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the securities
in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell
such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights
offering to our existing securityholders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters.
We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter
into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons
may be entitled under agreements that they may enter into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement,
we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities
from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each
contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less
nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions
and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions
except that:
| • | the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and |
| • | if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased
such securities not sold for delayed delivery. |
The underwriters and other persons acting as agents will not have any
responsibility in respect of the validity or performance of delayed delivery contracts.
Certain agents, underwriters and dealers, and
their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions with, and/or perform
services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities,
any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities
the prices of which may be used to determine payments on such securities. Specifically, any underwriters may over-allot in connection
with the offering, creating a short position for their own accounts. In addition, to cover over-allotments or to stabilize the price of
the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities
in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases
previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any
of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters
are not required to engage in these activities and may end any of these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades
in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise.
The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled business
days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the third
business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially
are expected to settle in more than three scheduled business days after the trade date for your securities, to make alternative settlement
arrangements to prevent a failed settlement.
The securities may be new issues of securities
and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no
assurance as to the liquidity of or the existence of trading markets for any of the securities.
Legal
Matters
The validity of the securities offered hereby
will be passed upon for us by Snell and Wilmer L.L.P., Las Vegas, Nevada. Additional legal matters may be passed on for us, or any underwriters,
dealers or agents by counsel we will name in the applicable prospectus supplement.
Experts
The financial statements incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2022 have been so incorporated in
reliance on the report of WithumSmith+Brown, PC, an independent registered public accounting firm, which report includes an explanatory
paragraph about the existence of substantial doubt concerning the Company’s ability to continue as a going concern, given on the
authority of said firm as experts in auditing and accounting.
Where
You Can Find More Information
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.eksobionics.com.
Information accessible on or through our website is not incorporated by reference into this prospectus and you shall not consider it to
be a part of this prospectus.
This prospectus and any prospectus supplement
is part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement.
You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries
and the securities that we are offering. Forms of any indenture or other documents establishing the terms of the offered securities are
filed as exhibits to the registration statement of which this prospectus forms a part or under cover of a Current Report on Form 8-K
and incorporated in this prospectus by reference. Statements in this prospectus or any prospectus supplement about these documents are
summaries and each statement is qualified in all respects by reference to the document to which it refers. You should read the actual
documents for a more complete description of the relevant matters.
Incorporation
by Reference
The SEC allows us to incorporate by reference
much of the information that we file with the SEC, which means that we can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus.
Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings
may modify or supersede some of the information included or incorporated by reference in this prospectus. This means that you must look
at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document
previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed
below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case,
other than those documents or the portions of those documents furnished rather than filed), until the offering of the securities under
the registration statement of which this prospectus forms a part is terminated or completed:
| • | the description of our common stock contained in the Registration Statement on Form 8-A relating thereto, filed on May 6, 2015 and August 8, 2016, including any amendment or report filed for the purpose of updating such description. |
You may request a copy of these filings, at no
cost, by writing or telephoning us at the following address:
Ekso Bionics Holdings, Inc.
101 Glacier Point, Suite A
San Rafael, California 94901
Attn: Investor Relations
(510) 984-1761
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth estimated expenses
in connection with the issuance and distribution of the securities being registered:
| |
Amount to be Paid | |
SEC registration fee | |
$ | 8,265 | |
FINRA filing fee | |
| 11,750 | |
Stock exchange listing fee | |
| * | |
Printing and engraving expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Transfer agent and registrar fees and expenses | |
| * | |
Trustee’s fees and expenses | |
| * | |
Miscellaneous expenses | |
| * | |
Total | |
$ | 20,015 | |
| * | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this
time. |
| Item 15. | Indemnification of Directors and Officers |
Nevada
Revised Statutes (NRS) Sections 78.7502 and 78.751 provide us with the power to indemnify any of our directors, officers, employees and
agents. The person entitled to indemnification must have conducted himself in good faith, and must reasonably believe that his conduct
was in, or not opposed to, our best interests. In a criminal action, the director, officer, employee or agent must not have had reasonable
cause to believe that his conduct was unlawful.
Under NRS Section 78.751, advances for expenses
may be made by agreement if the director or officer affirms in writing that he has met the standards for indemnification and will personally
repay the expenses if it is determined that such officer or director did not meet those standards.
Our by-laws state that we shall indemnify every
(i) present or former director, officer, employee or agent of us and (ii) any person who served at our request as a director,
officer, member, manager, partner, trustee, fiduciary, employee or agent of another corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise (each an “Indemnitee”).
Our by-laws provide that we shall indemnify an
Indemnitee against expenses, including attorneys’ fees and disbursements, and costs (and in connection with a proceeding other than
a proceeding by or in the right of the Company, judgments, fines and amounts paid in settlement) actually and reasonably incurred by such
person in connection with any proceeding in which such Indemnitee was, is or is threatened to be named as defendant or respondent, or
in which he was or is a witness without being named a defendant or respondent, by reason, in whole or in part, of his serving or having
served, or having been nominated or designated to serve, if it is determined that the Indemnitee (a) conducted himself in good faith
and in a manner which such Indemnitee reasonably believed to be in or not opposed to our best interests, or with respect to any criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful or (b) is not liable pursuant to NRS Section 78.138;
provided, however, that in the event that an Indemnitee is found liable to us, we will have no obligation to indemnify such Indemnitee
unless, and only to the extent that the court in which such action or suit was brought or other court of competent jurisdiction determines
that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses and costs
as a court of competent jurisdiction or such other court shall deem proper.
The termination of any proceeding by judgment,
order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee
did not meet the requirements set forth in clauses (a) or (b) above. An Indemnitee shall be deemed to have been found liable
in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court of competent jurisdiction after
exhaustion of all appeals therefrom.
In addition to our by-laws, we have entered into
an Indemnification Agreement with each of our directors and executive officers pursuant to which we are required to indemnify, and to
advance expenses on behalf of, such persons to the fullest extent permitted by applicable law and our governing documents. We believe
that entering into these agreements helps us to attract and retain highly competent and qualified persons to serve the Company.
The limitation of liability and indemnification
provisions in our articles of incorporation, by-laws and the indemnification agreements that we have entered into with our directors and
executive officers may discourage stockholders from bringing a lawsuit against our directors and executive officers for breach of their
fiduciary duties. They may also reduce the likelihood of derivative litigation against our directors and executive officers, even though
an action, if successful, might benefit the registrant and other stockholders. Further, a stockholder’s investment may be adversely
affected to the extent that the registrant pays the costs of settlement and damage awards against directors and executive officers as
required by these indemnification provisions. At present, we are not aware of any pending litigation or proceeding involving any person
who is or was one of our directors or officers, or is or was one of our directors or officers serving at our request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for which indemnification is sought,
and we are not aware of any threatened litigation that may result in claims for indemnification.
We have obtained insurance policies under which,
subject to the limitations of the policies, coverage is provided to our directors and executive officers against loss arising from claims
made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public
securities matters, and to us with respect to payments that may be made by the registrant to these directors and executive officers pursuant
to our indemnification obligations or otherwise as a matter of law.
The underwriting agreement between us and the
underwriters filed as Exhibit 1.1 to this registration statement provides for the indemnification by the underwriters of our directors
and officers and certain controlling persons against specified liabilities, including liabilities under the Securities Act with respect
to information provided by the underwriters specifically for inclusion in the registration statement.
| * | To be filed, if applicable, by amendment or incorporated by reference pursuant to a Current Report on Form 8-K. |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
(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 Securities and Exchange Commission, or 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 (1)(i), (1)(ii) and (1)(iii) 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, as amended, or the Exchange Act, that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) that,
for the purpose of determining any liability under the Securities Act, 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 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 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 a registrant under the Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of such 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.
(6) 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
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 initial bona fide
offering thereof.
(7) 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.
(b) 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 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Rafael, State of California, on June 12, 2023.
|
Ekso Bionics Holdings, Inc. |
|
|
|
By: |
/s/ Scott G. Davis |
|
|
Scott G. Davis |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below hereby constitutes and appoints Scott G. Davis and Jerome Wong, and each of them, as his or her true
and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this registration statement, including post-effective amendments,
and registration statements filed pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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
connection therewith and about the premises, as fully for all intents and purposes as they, he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or any of them, or their, his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
Signature |
Title |
Date |
|
|
|
/s/
Scott G. Davis
Scott G. Davis |
Chief
Executive Officer and Director
(Principal Executive Officer) |
June 12,
2023 |
|
|
|
/s/
Jerome Wong
Jerome Wong |
Chief
Financial Officer
(Principal Financial and Accounting Officer) |
June 12,
2023 |
|
|
|
/s/
Mary Ann Cloyd
Mary Ann Cloyd
|
Director |
June 12,
2023 |
/s/
Corinna Lathan, Ph.D.
Corinna Lathan, Ph.D.
|
Director |
June 12,
2023 |
/s/
Charles Li, Ph.D.
Charles Li, Ph.D.
|
Director |
June 12,
2023 |
/s/ Rhonda A. Wallen
Rhonda A. Wallen |
Director |
June 12,
2023 |
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