As filed with the
Securities and Exchange Commission on June 27, 2023
Registration No.
333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
Expion360 Inc.
(Exact Name
of Registrant as Specified in Its Charter)
Nevada |
3691 |
81-2701049 |
|
|
|
(State
or other jurisdiction of
Incorporation
or organization) |
(Primary
Standard Industrial
Classification
Code Number) |
(I.R.S.
Employer
Identification
No.) |
2025 SW Deerhound
Avenue
Redmond, OR 97756
Telephone: (541)
797-6714
(Address, Including
Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Brian Schaffner
Chief Executive
Officer
2025 SW Deerhound
Avenue
Redmond, OR 97756
Telephone: (541)
797-6714
(Name, Address,
Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies
to:
Valerie Ford Jacob
Freshfields Bruckhaus
Deringer US LLP
601 Lexington Avenue
New York, New York
10022
Telephone:
(212) 277-4000
Approximate date
of commencement of proposed sale to the public: From time to time or at one time as determined by the Registrant 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 registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☒ |
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. ☐
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, as amended, or until the registration statement shall become effective on such date as the Securities
and Exchange Commission (the “SEC”), acting pursuant to said Section 8(a), may determine.
The information
in this preliminary 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 preliminary prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED June 27, 2023
PRELIMINARY PROSPECTUS
![Icon
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Expion360 Inc.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to
time, we may offer and sell up to $50,000,000 in aggregate principal amount of our common stock, preferred stock, debt securities or
warrants, in each case in one or more issuances and at prices and on terms that we will determine at the time of the offering. We may
also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common
stock, preferred stock or debt securities upon the exchange of warrants.
This prospectus
describes the general manner in which any of these securities may be offered using this prospectus. We will specify in an accompanying
prospectus supplement the terms of the securities offered and other details regarding the offering thereof. The supplement may also add,
update or change information contained in this prospectus with respect to that offering.
Our common
stock is listed on the Nasdaq Capital Market under the symbol “XPON.” On June 26, 2023, the last reported sales price of
our common stock was $4.76 per share.
As of June
26, 2023, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately $24,867,078
million, based on 6,910,717 shares of outstanding common stock, of which approximately 1,686,541 shares were held by affiliates, and
a price of $4.76 per share, which was the price at which our common stock was last sold on the Nasdaq Capital Market on such date. We
have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends
on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered
on this registration statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month
period so long as our public float remains below $75 million (the “Baby Shelf Limitation”).
We are an “emerging
growth company” as defined under U.S. federal securities laws and, as such, have elected to comply with reduced public company
reporting requirements. This prospectus complies with the requirements that apply to an issuer that is an emerging growth company.
The securities
covered by this prospectus may be sold directly by us to investors, through agents designated by us from time to time or through underwriters
or dealers at prices and on terms to be determined at the time of offering. We will include in an applicable prospectus supplement the
names of any underwriters or agents and any applicable commissions or discounts. Additional information on the methods of sale appears
under “Plan of Distribution” in this prospectus. We will also describe in an applicable prospectus supplement the
way(s) in which we expect to use the net proceeds we receive from any sale.
Investing
in our securities involves risks. See the section entitled “Risk Factors” beginning on page 7 of this prospectus to
read about factors you should consider before buying our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus
may not be used to offer or sell any securities unless accompanied by a prospectus supplement.
The date
of this prospectus is , 2023
TABLE OF
CONTENTS
_________________________________
You should
rely only on the information contained, or incorporated by reference, in this prospectus and in an applicable prospectus supplement to
this prospectus. We have not authorized any other person to provide you with different or additional information. If anyone provides
you with different, additional or inconsistent information, you should not rely on it. We do not take responsibility for, and can provide
no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities
or soliciting any offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus, any applicable prospectus supplement or any free writing prospectus we authorize to be
delivered to you is accurate only as of the date of that document or any other date set forth in that document. Additionally, any information
we have incorporated by reference in this prospectus or in any applicable prospectus supplement is accurate only as of the date of the
document incorporated by reference or other date set forth in that document, regardless of the time of delivery of this prospectus, any
applicable prospectus supplement or any sale of securities. Our business, financial condition, results of operations, cash flow and prospects
may have changed since that date.
ABOUT THIS
PROSPECTUS
This prospectus
is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process.
Under this
process, we may sell the securities described in this prospectus in one or more offerings for an aggregate offering amount of up to $50,000,000,
subject to the Baby Shelf Limitation. This prospectus describes the general manner in which we may offer the securities described in
this prospectus. Each time we sell securities pursuant to this registration statement, we will provide a prospectus supplement that will
contain specific information about the offering and the securities offered, and may also add, update or change information contained
in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information
relating to these offerings. If there is any inconsistency between information in this prospectus and any accompanying prospectus supplement
or free writing prospectus, you should rely on the information in the most recent applicable prospectus supplement or free writing prospectus
and documents incorporated by reference herein and therein. This prospectus may not be used to offer to sell, solicit an offer to buy
or consummate a sale of our securities unless it is accompanied by a prospectus supplement.
This prospectus,
together with any accompanying prospectus supplement and any additional information incorporated by reference herein and therein, contains
important information you should know before investing in our securities, including important information about us and the securities
being offered. You should carefully read both documents, as well as the additional information contained in the documents described under
“Where You Can Find More Information” and “Incorporation By Reference” in both this prospectus
and any applicable prospectus supplement, and in particular the annual, quarterly and current reports and other documents we file with
the SEC. Neither this prospectus nor any accompanying prospectus supplement is an offer to sell these securities or is soliciting an
offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
This prospectus
contains or incorporates by reference summaries of certain provisions contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to
the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below in the
section of this prospectus entitled “Incorporation By Reference.”
SELECTED
DEFINITIONS
Unless otherwise
stated in this prospectus or the context otherwise requires, reference to:
“Articles
of Incorporation” means the articles of incorporation of Expion360.
“Bylaws”
means the bylaws of Expion360.
“common
stock” means the shares of common stock, par value $0.001 per share, of Expion360.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Expion360”,
the “Company,” “we,” “us,” and “our” means Expion360 Inc.,
a Nevada corporation.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, together with any accompanying prospectus supplement, and the documents incorporated by reference herein or therein may include
“forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act.
All statements in this prospectus, together with any accompanying prospectus supplement, and the documents incorporated by reference
herein or therein, other than statements of historical fact, are “forward-looking statements” for purposes of these provisions,
including, without limitation, any projections regarding the markets where we operate, any statements of the plans and objectives of
our management for future operations, any statements concerning proposed new products or services, any statements regarding expected
capital expenditures, any statements regarding future economic conditions or performance, and any statements of assumptions underlying
any of the foregoing. All forward-looking statements included in this prospectus and the documents incorporated by reference herein are
made as of the date hereof or thereof, as applicable, and are based on information available to us as of such dates. We assume no obligation
to update any forward-looking statement. In some cases, forward-looking statements can be identified by the use of terminology such as
“may,” “will,” “expects,” “plans,” “should,” “anticipates,” “intends,”
“seeks,” “believes,” “estimates,” “potential,” “forecasts,” “continue,”
or other forms of these words or similar words or expressions, or the negative thereof or other comparable terminology. Although we believe
that the expectations reflected in the forward-looking statements contained herein are reasonable, there can be no assurance that such
expectations or any of the forward-looking statements will prove to be correct. Actual results will likely differ, and could differ materially,
from those projected or assumed in the forward-looking statements. Prospective investors are cautioned not to unduly rely on any such
forward-looking statements.
Forward-looking
statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations,
and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy,
and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks,
and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial
condition may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these
forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those
indicated in the forward-looking statements include, among others, the following:
|
· |
We operate in an extremely
competitive industry and are subject to pricing pressures. |
|
· |
We have a history of losses
and our audited financial statements include a statement that there is a substantial doubt about our ability to continue as a going
concern. As our costs increase, we may not be able to generate sufficient revenue to achieve and sustain profitability. |
|
· |
Our business and future
growth depends on the needs and success of our customers, and we have substantial customer concentration. |
|
· |
We may not be able to successfully
manage our growth. |
|
· |
We may be negatively impacted
by public health epidemics or outbreaks, including the novel coronavirus (“COVID-19”) as well as uncertainty in global
economic conditions. |
|
· |
We may fail to expand our
sales and distribution channels and our ability to expend into international markets is uncertain. |
|
· |
Nearly all of our raw materials
enter the United States through a limited number of ports, and we rely on third parties to store and ship some of our inventory;
labor unrest at these ports or other product delivery difficulties could interfere with our distribution plans and reduce our revenue. |
|
· |
Government reviews, inquiries,
investigations, and actions could harm our business or reputation. |
|
· |
We are dependent on third-party
manufacturers and suppliers, including suppliers located outside the United States, and our operating results could be adversely
affected by changes in the cost and availability of raw materials as well as increases in costs, disruption of supply, or shortage
of any of our battery components, such as electronic and mechanical parts, or raw materials used in the production of such parts. |
|
· |
We rely on two warehouse
facilities and if any of our facilities becomes inoperable for any reason or if our expansion plans fail, our ability to produce
our products could be negatively impacted. |
|
· |
Lithium-ion battery cells
have been observed to catch fire or release smoke and flame, which may have a negative impact on our reputation and business. |
|
· |
We could face potential
product liability claims relating to our products, which could result in significant costs and liabilities, which would reduce our
profitability. |
|
· |
Our operations expose us
to litigation, tax, environmental, and other legal compliance risks. |
|
· |
Our failure to introduce
new products and product enhancements and broad market acceptance of new technologies introduced by our competitors could adversely
affect our business. |
|
· |
We may not be able to adequately
protect our proprietary intellectual property and technology and we may need to defend ourselves against intellectual property infringement
claims. |
|
· |
Quality problems with our
products could harm our reputation and erode our competitive position. |
|
· |
Our ability to raise capital
in the future may be limited and our stockholders may be diluted by future securities offerings. |
|
· |
We depend on our senior
management team and other key employees, and significant attrition within our management team or unsuccessful succession planning
could adversely affect our business. |
|
· |
We are an “emerging
growth company” and elect to comply with certain reduced reporting requirements applicable to emerging growth companies, which
could make our securities less attractive to investors. |
|
· |
Such other factors as discussed
under “Risk Factors” herein and in the documents incorporated by reference herein, including our latest Annual Report
on Form 10-K. |
All
forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by these cautionary
statements. Our actual results will likely differ, and may differ materially, from anticipated results. Financial estimates are subject
to change and are not intended to be relied upon as predictions of future operating results, and we assume no obligation to update or
disclose revisions to those estimates. If we do update or correct one or more forward-looking statements, investors and others should
not conclude that we will make additional updates or corrections.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed
with the SEC a registration statement on Form S-3, including exhibits, under the Securities Act with respect to the securities offered
by this prospectus and any applicable prospectus supplement. This prospectus and the applicable prospectus supplement, which constitutes
part of the registration statement, does not contain all of the information in the registration statement and its exhibits. For further
information with respect to Expion360 and the securities offered by this prospectus and any applicable prospectus supplement, we refer
you to the registration statement and its exhibits. Statements contained in this prospectus and any applicable prospectus supplement
as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer you
to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements is qualified
in all respects by this reference. You can read our SEC filings, including the registration statement, at the SEC’s website at
www.sec.gov.
We are subject
to the information reporting requirements of the Exchange Act, and we are required to file reports, proxy statements and other information
with the SEC. These reports, proxy statements and other information will be available for review at the SEC’s website referred
to above. We also maintain a website at www.expion360.com, at which you may access these materials free of charge as soon as reasonably
practicable after they are electronically filed with, or furnished to, the SEC. Information contained on or accessible through our website
is not a part of this prospectus or any prospectus supplement, and the inclusion of our website address in this prospectus or any prospectus
supplement is an inactive textual reference only.
INCORPORATION
BY REFERENCE
The SEC’s
rules allow us to “incorporate by reference” information into this prospectus and any applicable prospectus supplement, which
means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus and any applicable prospectus supplement, and subsequent information
that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or any
applicable prospectus supplement or a previously filed document incorporated by reference will be deemed to be modified or superseded
for purposes of this prospectus or any applicable prospectus supplement to the extent that a statement contained in this prospectus or
any applicable prospectus supplement or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus
and any applicable prospectus supplement incorporate by reference the documents set forth below that have previously been filed with
the SEC:
| • | Our
Annual Report on Form 10-K for the year ended December 31,
2022, filed with the SEC on March 30, 2023; |
| • | Our
Quarterly Report on Form 10-Q for the period ended March 31, 2023, filed with the SEC on
May 11, 2023; |
| • | Our
Current Report on Form 8-K filed with the SEC on February 1, 2023; and |
| • | The
description of the common stock contained in our registration statement on Form
8-A (File No. 001-41347), filed with the SEC on March 31, 2022, pursuant to Section
12 of the Exchange Act, as updated by Exhibit 4.4 to our
Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March
30, 2023. |
All reports
and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of
this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to
the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also
be incorporated by reference into this prospectus or any applicable prospectus supplement and deemed to be part of this prospectus or
any applicable prospectus supplement from the date of the filing of such reports and documents. Under no circumstances shall any information
furnished under Item 2.02, 7.01 or 9.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides
to the contrary.
PROSPECTUS
SUMMARY
The following
summary highlights information contained in greater details elsewhere in this prospectus or incorporated by reference into this prospectus.
This summary is not complete and does not contain all of the information you should consider in making your investment decision. You
should read the entire prospectus, any applicable prospectus supplement and the documents we have incorporated by reference in this prospectus
carefully before making an investment in our securities. You should carefully consider, among other things, our financial statements
and related notes and the information set forth in the section entitled “Risk Factors” and other information incorporated
by reference into this prospectus from our filings with the SEC. See also the sections entitled “Where You Can Find More Information”
and “Incorporation By Reference.”
Overview
Expion360
Inc. (the “Company,” “Expion360”, “we,” “us” or “our”) focuses on the design,
assembly, manufacturing, and sales of lithium iron phosphate (LiFePO4) batteries and supporting accessories for recreational vehicles
(“RVs”) and marine applications with plans to expand into home energy storage products and industrial applications. We design,
assemble, and distribute high-powered, lithium battery solutions using ground-breaking concepts with a creative sales and marketing approach.
We believe that our product offerings include some of the most dense and minimal-footprint batteries in the RV & Marine industry.
We are developing the e360 Home Energy Storage: a system that we expect to significantly change the industry in barrier price, flexibility,
and integration. We are deploying multiple IP strategies with cutting-edge research and unique products to sustain and scale the business.
We currently have customers consisting of dealers, wholesalers, private label customers and original equipment manufacturers who are
driving revenue and brand awareness nationally.
Our
corporate headquarters are based in Redmond, Oregon, with assembly in the United States and suppliers based in Asia and Europe. We are
currently in the process of building out manufacturing capacity at our corporate headquarters. Our long-term target is to onshore the
manufacturing of most of our components and assemblies, including cell manufacturing, to the United States.
Our
main target markets are currently the RV & Marine industry. We believe that we are well positioned to capitalize on the rapid market
conversion from lead-acid to lithium batteries as the primary method of power sourcing in these industries. Additional focus markets
include home energy storage, where we aim to provide a cost-effective, low barrier of entry, and a do-it-yourself (“DIY”)
flexible system for those looking to power their homes via solar energy, wind, or grid back-up. Along with RV/Marine and home energy
storage markets, we aim to provide additional capacities to the ever-expanding electric forklift and industrial material handling markets.
Expion360’s
e360 product line, which is manufactured for the RV/Marine industry, was launched in December 2020. The e360 product line, through its
rapid sales growth, has shown to be a preferred conversion solution for lead-acid batteries. We believe that our e360 Home Energy Storage
system has strong revenue potential with recurring income opportunities for us and our associated sales partners.
Our products
provide numerous advantages for various industries that are looking to migrate to lithium-based energy storage. They incorporate detailed-oriented
design and engineering and strong case materials and internal and structural layouts, and are backed by responsive customer service.
Corporate Information
Expion360 Inc.
was initially organized as a limited liability company under the name Yozamp Products Company, LLC in the State of Oregon on June 16,
2016, and converted to a Nevada corporation under its current name pursuant to articles of conversion dated as of November 16, 2021.
Our
website is https://expion360.com/ and on the Investor Relations section of our website, we post or will post, as applicable, the following
filings as soon as reasonably practicable after they are electronically filed with or furnished
to the Securities and Exchange Commission (“SEC”): our Annual Report on Form 10-K (the “Annual Report”), our
Proxy Statement on Schedule 14A, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and any amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended.
All
of the information on our Investor Relations web page is available to be viewed free of charge. Information contained on our website
is not part of this prospectus or our other filings with the SEC. We assume no obligation to update or revise any forward-looking statements
in this prospectus whether as a result of new information, future events or otherwise, unless we are required to do so by law.
The
SEC also maintains a website (www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers
that file electronically with the SEC.
RISK FACTORS
Investment
in the securities offered pursuant to this prospectus and any applicable prospectus supplement involves risks. You should carefully consider
the risk factors incorporated by reference to our most recent Annual Report on Form 10-K, and any subsequent Quarterly Reports on Form
10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, as updated
by our subsequent filings under the Exchange Act, and the risk factors and other information contained in or incorporated by reference
into any applicable prospectus supplement before acquiring any of such securities. The risks and uncertainties we have described are
not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business operations. The occurrence of any of these risks might cause you to lose all or part of your investment
in the offered securities. The discussion of risks includes or refers to forward-looking statements. You should read the explanation
of the qualifications and limitations on such forward-looking statements contained or incorporated by reference into this prospectus
and in any applicable prospectus supplement.
USE OF PROCEEDS
Unless otherwise
described in any applicable prospectus supplement, we intend to use the net proceeds from the sale of any securities described in this
prospectus for general corporate purposes.
GENERAL DESCRIPTION
OF SECURITIES
We may offer
shares of common stock or preferred stock, various series of senior or subordinated debt securities or warrants to purchase any of the
foregoing, in each case from time to time under this prospectus, together with any applicable prospectus supplement, at prices and on
terms to be determined by market conditions at the time of offering. This prospectus provides you with a general description of the securities
we may offer. At the time we offer a particular type or series of securities, we will provide an applicable prospectus supplement describing
the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| • | designation
or classification; |
| • | aggregate
principal amount or aggregate offering price; |
| • | rates
and times of payment of interest, dividends or other payments; |
| • | original
issue discount; |
| • | redemption,
conversion, exercise, exchange, settlement or sinking fund terms, including prices or rates,
and any provisions for changes to or adjustments in such prices or rates and in the securities
or other property receivable upon conversion, exercise, exchange or settlement; |
| • | any
securities exchange or market listing arrangements; and |
| • | important
U.S. federal income tax considerations. |
This prospectus
may not be used to offer or sell securities unless accompanied by an applicable prospectus supplement. The applicable prospectus supplement
may add, update or change information contained in this prospectus or in documents incorporated by reference in this prospectus. You
should read the applicable prospectus supplement related to any securities being offered.
We may sell
the securities to or through underwriters, dealers or agents, directly to purchasers or through a combination of any of these methods
of sale or as otherwise set forth under “Plan of Distribution”. We and our underwriters, dealers or agents reserve
the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents,
we will include in the applicable prospectus supplement (i) the names of the underwriters or agents and applicable fees, discounts and
commissions to be paid to them; (ii) details regarding over-allotment options, if any; and (iii) net proceeds to us.
The following
descriptions are not complete and may not contain all the information you should consider before investing in any securities we may offer
hereunder; they are summarized from, and qualified by reference to, our articles of incorporation, bylaws and the other documents referred
to in herein, all of which are or will be publicly filed with the SEC, as applicable. See “Where You Can Find More Information.”
DESCRIPTION
OF CAPITAL STOCK
Expion360
has one class of securities registered under Section 12 of the Securities Exchange Act: the Company’s common stock, par value $0.001
per share (the “common stock”).
The
following description of our capital stock is a summary of the rights of our capital stock and summarizes certain provisions of our certificate
of incorporation and our bylaws. This summary does not purport to be complete and is qualified in its entirety by the provisions of our
certificate of incorporation and bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus
forms a part, as well as to the applicable provisions of Nevada law.
General
Our
authorized capital stock consists of 200,000,000 shares of common stock, par value $0.001 per share and 20,000,000 shares of preferred
stock, par value $0.001 per share.
Common Stock
The
holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders. The
holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive ratably any
dividends declared by the board of directors out of funds legally available for that purpose, subject to any preferential dividend rights
of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption
or sinking fund provisions. We currently do not have any shares of, or securities convertible into, preferred stock outstanding.
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all assets
remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock.
Warrants
$2.90
Warrants
On
November 9, 2021, the Company issued warrants to purchase 151,000 of shares of the Company’s common stock with an exercise price
of $2.90 per share (the “$2.90 Warrants”). The $2.90 Warrants are exercisable for a period of 3 years from date of grant.
If holders of the $2.90 Warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering their
$2.90 Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the difference between the “fair
market value” (defined below) multiplied by the number of shares underlying such holder’s $2.90 Warrants and the exercise
price multiplied by the number of shares underlying such holder’s $2.90 Warrants by (y) the fair market value. The “fair
market value” shall mean the prior five-day average closing price of the common stock on the date on which the holder elects to
exercise their $2.90 Warrants. The $2.90 Warrants have certain adjustment rights upon certain events.
$3.32
Warrants
On
November 22, 2021, the Company issued warrants to purchase 559,431 shares of the Company’s common stock at an exercise price of
$3.32 per share (the “$3.32 Warrants”). The $3.32 Warrants are exercisable for a period of 10 years from date of grant. If
holders of the $3.32 Warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering their $3.32
Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the difference between the “fair
market value” (defined below) multiplied by the number of shares underlying such holder’s $3.32 Warrants and the exercise
price multiplied by the number of shares underlying such holder’s $3.32 Warrants by (y) the fair market value. The “fair
market value” shall mean the volume weighted average of the closing sales price of the common stock averaged over 20 consecutive
trading days ending on the trading day prior to the date on which “fair market value” is determined. The $3.32 Warrants have
certain adjustment rights upon certain events. The Company is required to cause a registration statement registering the resale of the
shares of our common stock issuable upon exercise of the $3.32 Warrants to become effective in connection with its initial public offering.
As of the date of this prospectus, the Company has an effective registration statement which satisfies this requirement.
Underwriter
Warrants
Concurrent
with the closing of the initial public offering, the Company issued warrants to purchase an aggregate of 128,700 shares of its common
stock to Alexander Capital LP and Paulson Investment Company LLC (as apportioned in accordance with agreements amongst them), or their
designees, at an exercise price of $9.10 per share (the “Underwriter Warrants”). The Underwriter Warrants are initially exercisable
on September 27, 2022 and expire on March 31, 2027.
If
there is not an effective registration statement registering the resale of the shares of common stock issuable upon exercise of the Underwriter
Warrants, holders of the Underwriter Warrants may elect to exercise them on a cashless basis and pay the exercise price by surrendering
their Underwriter Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the
number of shares of common stock underlying the Underwriter Warrants, multiplied by the difference between (i) the daily volume weighted
average price of the common stock on the trading day immediately preceding the date of the exercise notice or on the date of the exercise
notice (if delivered after regular trading hours) and (ii) the exercise price of the Underwriter Warrants and by (y) the daily volume
weighted average price of the common stock on the trading day immediately preceding the date of the exercise notice or on the date of
the exercise notice (if delivered after regular trading hours). If the Company does not deliver common stock to a holder upon such holder’s
exercise of their Underwriter Warrants in compliance with the timing set out in the Underwriter Warrants, the Company will have to pay
cash to such holder in accordance with the terms of the Underwriter Warrants. The Underwriter Warrants include anti-dilution provisions
(for stock dividends, splits and recapitalizations and similar transactions), which results in the adjustment of the exercise price and
entitles holders of the Underwriter Warrants to participate in subsequent rights offerings or distributions to holders of the Company’s
common stock, as applicable. The Underwriter Warrants also have certain adjustment rights upon certain events. Further, the Underwriter
Warrants provide for a one-time demand registration right, exercisable until March 31, 2027 and unlimited piggyback rights, exercisable
until September 27, 2024.
Options
Prior
to our initial public offering, we issued options to purchase 30,000 shares of common stock granted to one individual which had an exercise
price of $3.32.
Anti-Takeover
Effects of Provisions of Our Charter Documents
The
provisions of Nevada law and our Bylaws may have the effect of delaying, deferring or preventing another party from acquiring control
of the company. These provisions may discourage and prevent coercive takeover practices and inadequate takeover bids.
Nevada
Law
Nevada
law contains a provision governing “acquisition of controlling interest.” This law provides generally that any person or
entity that acquires 20% or more of the outstanding voting shares of a publicly-held Nevada corporation in the secondary public or private
market may be denied voting rights with respect to the acquired shares, unless a majority of the disinterested stockholders of the corporation
elects to restore such voting rights in whole or in part. The control share acquisition act provides that a person or entity acquires
“control shares” whenever it acquires shares that, but for the operation of the control share acquisition act, would bring
its voting power within any of the following three ranges: 20 to 33-1/3%; 33-1/3 to 50%; or more than 50%.
Our
Articles of Incorporation include a mandatory forum provision that, to the fullest extent permitted by law, the Nevada Eighth Judicial
District of Clark County Nevada shall be the sole and exclusive forum for (a) any derivative action or proceeding brought in the name
or right of the Company or on its behalf, (b) any action asserting a claim for breach of any fiduciary duty owed by any director, officer,
employee or agent of the Company to the Company or the Company's stockholders, (c) any action arising or asserting a claim arising pursuant
to any provision of NRS Chapters 78 or 92Aor any provision of the Articles of Incorporation or Bylaws, (d) any action to interpret, apply,
enforce or determine the validity of the Articles of Incorporation or Bylaws or (e) any action asserting a claim governed by the internal
affairs doctrine. This exclusive forum provision would not apply to suits brought to enforce any liability or duty created by the Securities
Act or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. To the extent that any such claims
may be based upon federal law claims, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to
enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Furthermore, Section 22 of the Securities
Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the
Securities Act or rules and regulations thereunder and would preempt the choice of forum provisions in our Articles of Incorporation
with respect to such matters.
A
“control share acquisition” is generally defined as the direct or indirect acquisition of either ownership or voting power
associated with issued and outstanding control shares. The stockholders or Board of Directors of a corporation may elect to exempt the
stock of the corporation from the provisions of the control share acquisition act through adoption of a provision to that effect in the
articles of incorporation or bylaws of the corporation. Our Articles of Incorporation and Bylaws do not exempt our common stock from
the control share acquisition act.
The
control share acquisition act is applicable only to shares of “Issuing Corporations” as defined by the Nevada law. An Issuing
Corporation is a Nevada corporation which (i) has 200 or more stockholders, with at least 100 of such stockholders being both stockholders
of record and residents of Nevada, and (ii) does business in Nevada directly or through an affiliated corporation.
At
this time, we do not believe we have 100 stockholders of record resident of Nevada and we do not conduct business in Nevada directly.
Therefore, the provisions of the control share acquisition act are believed not to apply to acquisitions of our shares and will not until
such time as these requirements have been met. At such time as they may apply, the provisions of the control share acquisition act may
discourage companies or persons interested in acquiring a significant interest in or control of us, regardless of whether such acquisition
may be in the interest of our stockholders.
The
Nevada “Combination with Interested Stockholders Statute” may also have an effect of delaying or making it more difficult
to effect a change in control of us. This statute prevents an “interested stockholder” and a resident domestic Nevada corporation
from entering into a “combination,” unless certain conditions are met. The statute defines “combination” to include
any merger or consolidation with an “interested stockholder,” or any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, in one transaction or a series of transactions with an “interested stockholder” having (i) an aggregate
market value equal to 5% or more of the aggregate market value of the assets of the corporation, (ii) an aggregate market value equal
to 5% or more of the aggregate market value of all outstanding shares of the corporation, or (iii) representing 10% or more of the earning
power or net income of the corporation.
An
“interested stockholder” means the beneficial owner of 10% or more of the voting shares of a resident domestic corporation,
or an affiliate or associate thereof. A corporation affected by the statute may not engage in a “combination” within three
years after the interested stockholder acquires its shares unless the combination or purchase is approved by the Board of Directors before
the interested stockholder acquired such shares. If approval is not obtained, then after the expiration of the three-year period, the
business combination may be consummated with the approval of the Board of Directors or a majority of the voting power held by disinterested
stockholders, or if the consideration to be paid by the interested stockholder is at least equal to the highest of (i) the highest price
per share paid by the interested stockholder within the three years immediately preceding the date of the announcement of the combination
or in the transaction in which he became an interested stockholder, whichever is higher, (ii) the market value per common share on the
date of announcement of the combination or the date the interested stockholder acquired the shares, whichever is higher, or (iii) if
higher for the holders of preferred stock, the highest liquidation value of the preferred stock.
Articles
of Incorporation and Bylaws
Our
Articles of Incorporation are silent as to cumulative voting rights in the election of our directors. Nevada law requires the existence
of cumulative voting rights to be provided for by a corporation’s Articles of Incorporation. In the event that a few stockholders
end up owning a significant portion of our issued and outstanding common stock, the lack of cumulative voting would make it more difficult
for other stockholders to replace our Board of Directors or for a third party to obtain control of us by replacing our Board of Directors.
Our Articles of Incorporation and Bylaws do not contain any explicit provisions that would have an effect of delaying, deferring or preventing
a change in control of us.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common shares is Pacific Stock Transfer Company. Pacific Stock Transfer Company’s address
and phone number is: 6725 Via Austi Pkwy, Suite 300, Las Vegas, Nevada 89119; telephone number (800) 785-7782.
Listing
Our
common stock has been traded on The Nasdaq Capital Market under the symbol “XPON” since April 1, 2022.
DESCRIPTION
OF DEBT SECURITIES
We may issue
debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we
will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The
terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires
otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular
series of debt securities.
We will issue
the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified
under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the
registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms
of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will
be incorporated by reference from reports that we file with the SEC.
The following
summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to,
all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The indenture
does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount
that we may authorize and that the debt securities may be in any currency or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do
not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations,
financial condition or transactions involving us.
We will describe
in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
| • | the
title of the series of debt securities; |
| • | any
limit upon the aggregate principal amount that may be issued; |
| • | the
maturity date or dates; |
| • | the
form of the debt securities of the series; |
| • | the
applicability of any guarantees; |
| • | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| • | whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any
combination thereof, and the terms of any subordination; |
| • | if
the price (expressed as a percentage of the aggregate principal amount thereof) at which
such debt securities will be issued is a price other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| • | the
interest rate or rates, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and the
regular record dates for interest payment dates or the method for determining such dates; |
| • | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| • | if
applicable, the date or dates after which, or the period or periods during which, and the
price or prices at which, we may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms of those redemption provisions; |
| • | the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at
the holder’s option to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable; |
| • | the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| • | any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series; |
| • | whether
the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; |
| • | the
terms and conditions, if any, upon which such global security or securities may be exchanged
in whole or in part for other individual securities; and the depositary for such global security
or securities; |
| • | if
applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange; |
| • | if
other than the full principal amount thereof, the portion of the principal amount of debt
securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof; |
| • | additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant; |
| • | additions
to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable; |
| • | additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance; |
| • | additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| • | additions
to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| • | the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; |
| • | whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made; |
| • | the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any and principal amounts of the debt securities of the series to any holder
that is not a “United States person” for federal tax purposes; |
| • | any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
| • | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, any other additions or changes in the provisions of the indenture, and any terms
that may be required by us or advisable under applicable laws or regulations. |
We may issue
the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below
their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued
with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics
or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be
described in more detail in any applicable prospectus supplement.
Conversion or Exchange Rights
We will set
forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide
otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant
that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially
as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations
under the indenture or the debt securities, as appropriate.
Events of Default Under the Indenture
Unless we provide
otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under
the indenture with respect to any series of debt securities that we may issue:
| • | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose; |
| • | if
we fail to pay the principal of, or premium, if any, on any series of debt securities as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration
or otherwise, or in any payment required by any sinking or analogous fund established with
respect to such series; provided, however, that a valid extension of the maturity of such
debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any; |
| • | if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive written notice of such failure, requiring
the same to be remedied and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of the outstanding debt
securities of the applicable series; and |
| • | if
specified events of bankruptcy, insolvency or reorganization occur. |
If an event
of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last
bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that
series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium,
if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs
with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be
due and payable without any notice or other action on the part of the trustee or any holder.
The holders
of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default
with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default
or event of default.
Subject to
the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation
to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series
of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount
of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
| • | the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and |
| • | subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to the holders not involved
in the proceeding. |
A holder of
the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee,
or to seek other remedies only if:
| • | the
holder has given written notice to the trustee of a continuing event of default with respect
to that series; |
| • | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request; |
| • | such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and |
| • | the
trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer. |
These limitations
do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest
on, the debt securities.
We will periodically
file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the
trustee may change an indenture without the consent of any holders with respect to specific matters:
| • | to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of
any series; |
| • | to
comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;” |
| • | to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities; |
| • | to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities,
to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default or to surrender any
right or power conferred upon us in the indenture; |
| • | to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set
forth in the indenture; |
| • | to
make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect; |
| • | to
provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| • | to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| • | to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act. |
In addition,
under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent
of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected.
However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee
may make the following changes only with the consent of each holder of any outstanding debt securities affected:
| • | extending
the fixed maturity of any debt securities of any series; |
| • | reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or |
| • | reducing
the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each indenture
provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified
obligations, including obligations to:
| • | register
the transfer or exchange of debt securities of the series; |
| • | replace
stolen, lost or mutilated debt securities of the series; |
| • | pay
principal of and premium and interest on any debt securities of the series; |
| • | maintain
paying agencies; |
| • | hold
monies for payment in trust; |
| • | recover
excess money held by the trustee; |
| • | compensate
and indemnify the trustee; and |
| • | appoint
any successor trustee. |
In order to
exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal
of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue
the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of
a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that
series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to
any book-entry securities will be set forth in the applicable prospectus supplement.
At the option
of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable
prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of
the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to
the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders
of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at
the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will name
in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we
initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the debt securities of each series.
If we elect
to redeem the debt securities of any series, we will not be required to:
| • | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or |
| • | register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee,
other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as
are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree
of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is
under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it
is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise
indicate in the applicable prospectus supplement, we will make payment of interest on any debt securities on any interest payment date
to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the
regular record date for the interest.
We will
pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we
pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains
unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the
holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture
and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
The following
description, together with the additional information we may include in any applicable prospectus supplements, summarizes the material
terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates.
While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any
series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of
any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain
additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement, which includes
this prospectus.
General
We may issue
warrants for the purchase of our common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently
or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We will evidence
each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant
agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating
to a particular series of warrants.
We will describe
in the applicable prospectus supplement the terms of the series of warrants, including:
| • | the
offering price and aggregate number of warrants offered; |
| • | the
currency for which the warrants may be purchased; |
| • | if
applicable, the designation and terms of the securities with which the warrants are issued
and the number of warrants issued with each such security or each principal amount of such
security; |
| • | if
applicable, the date on and after which the warrants and the related securities will be separately
transferable; |
| • | in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at, and currency in which, this principal
amount of debt securities may be purchased upon such exercise; |
| • | in
the case of warrants to purchase common stock or preferred stock, the number of shares of
common stock or preferred stock, as the case may be, purchasable upon the exercise of one
warrant and the price at which these shares may be purchased upon such exercise; |
| • | the
effect of any merger, consolidation, sale or other disposition of our business on the warrant
agreement and the warrants; |
| • | the
terms of any rights to redeem or call the warrants; |
| • | any
provisions for changes to or adjustments in the exercise price or number of securities issuable
upon exercise of the warrants; |
| • | the
periods during which, and places at which, the warrants are exercisable; |
| • | the
dates on which the right to exercise the warrants will commence and expire; |
| • | the
manner in which the warrant agreement and warrants may be modified; |
| • | federal
income tax consequences of holding or exercising the warrants; |
| • | the
terms of the securities issuable upon exercise of the warrants; and |
| • | any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
PLAN OF DISTRIBUTION
We may sell
the offered securities in and outside the United States (1) through underwriters or dealers, (2) directly to one or more purchasers,
including through a “registered direct” offering, including to a limited number of institutional purchasers, to a single
purchaser or to our affiliates and stockholders, (3) through agents or (4) through a combination of any of these methods or
otherwise.
If underwriters
or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold
from time to time in one or more transactions, including:
| • | in
one or more transactions at a fixed price or prices, which may be changed from time to time; |
| • | in
“at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities
Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; |
| • | through
a market maker or into an existing trading market on an exchange or otherwise; |
| • | at
prices related to those prevailing market prices; or |
The applicable
prospectus supplement will set forth the following information to the extent applicable:
| • | the
terms of the offering; |
| • | the
names of any underwriters, dealers or agents or other purchasers; |
| • | the
name or names of any managing underwriter or underwriters; |
| • | the
purchase price of the securities or other purchasers; |
| • | the
net proceeds from the sale of the securities; |
| • | any
option to purchase additional shares or other options under which underwriters, dealers,
agents or other purchasers may purchase additional securities from us; |
| • | any
delayed delivery arrangements; |
| • | any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
| • | any
initial public offering price; |
| • | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any
commissions paid to agents. |
Sale through Underwriters or
Dealers
If any securities
are offered through underwriters, the underwriters will acquire the securities for their own account and may resell them from time to
time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer and sell securities to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise provided in the applicable prospectus
supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated
to purchase all of the offered securities if they purchase any of them. In connection with the sale of securities, underwriters may be
deemed to have received compensation from us in the form of underwriting discounts or commissions and dealers may receive compensation
from the underwriters in the form of discounts or concessions. The underwriters may change from time to time any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers.
In order to
facilitate the offering of securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price
of the securities. Specifically, the underwriters may overallot in connection with the offering, creating a short position in the securities
for their account. In addition, to cover overallotments or to stabilize the price of the shares, the underwriters may bid for, and purchase,
shares in the open market. Finally, an 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 shares 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
offered securities above independent market levels. The underwriters are not required to engage in these activities, and may discontinue
any of these activities at any time.
Some or all
of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any underwriters
to whom we sell securities for public offering and sale may make a market in those securities, but they will not be obligated to do so
and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued
trading markets for, any securities offered pursuant to this prospectus.
If any securities
are offered through dealers, we will sell the securities to them as principal. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale.
Direct Sales and Sales through
Agents
We may sell
the securities directly to purchasers, including through one or more “registered direct” offerings. If the securities are
sold directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with
respect to any sale of those securities, we will describe the terms of any such sales in the applicable prospectus supplement. We may
also sell the securities through agents designated from time to time. Sales may be made by means of ordinary brokers’ transactions
on The Nasdaq Capital Market at market prices, in block transactions and such other transactions as agreed by us and any agent. In the
applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe
any commissions payable to the agent. Unless otherwise provided in the applicable prospectus supplement, any agent will agree to use
its reasonable best efforts to solicit purchases for the period of its appointment.
At-the-Market Offerings
To the extent
that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms
of a sales agency financing agreement or other at-the-market offering arrangement between us, on one hand, and the underwriters
or agents, on the other. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell our securities
through one or more underwriters or agents, which may act on an agency basis or a principal basis. During the term of any such agreement,
we may sell securities on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. Any such agreement
will provide that any securities sold will be sold at prices related to the then prevailing market prices for our securities. Therefore,
exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms
of the agreement, we may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase
blocks of our common stock or other securities. The terms of any such agreement will be set forth in more detail in the applicable prospectus
supplement.
Remarketing Arrangements
Offered securities
may also be offered and sold, if we so indicate in the applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting
as principals for their own accounts or as our agents. Any remarketing firm will be identified and the terms of its agreements, if any,
with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters
of the offered securities under the Securities Act.
Delayed Delivery Contracts
If we so indicate
in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers by certain institutions to
purchase securities from us pursuant to contracts providing for payment and delivery on a specified future date. The applicable prospectus
supplement will describe the conditions to those contracts and the commission payable for solicitation of those contracts.
General Information
We may have
agreements with the agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required
to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform services for
us in the ordinary course of their businesses.
LEGAL MATTERS
The validity
and enforceability of the securities offered hereby as to Nevada law will be passed upon for us by Stradling Yocca Carlson & Rauth,
PC. The enforceability of the securities offered hereby as to New York law will be passed upon for us by Freshfields Bruckhaus Deringer
US LLP. Any underwriters or agents will be advised about other issues relating to the offering by counsel to be named in the applicable
prospectus supplement.
EXPERTS
The consolidated
financial statements of Expion360, Inc. as of December 31, 2022 and 2021, and for each of the two years in the period ended December
31, 2022 , incorporated by reference in this Prospectus, have been audited by M&K CPAS, PLLC, an independent registered
public accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report
of such firm given their authority as experts in accounting and auditing.
![Icon
Description automatically generated](https://content.edgar-online.com/edgar_conv_img/2023/06/27/0001903596-23-000505_image_002.jpg)
Expion360 Inc.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
PROSPECTUS
,
2023
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
Set forth below
is an estimate (except in the case of the SEC registration fee and the FINRA filing fee) of the amount of fees and expenses that Expion360
Inc. (the “Registrant”) may incur in connection with the issuance and distribution of the offered securities, other than
underwriting discounts and commissions.
SEC
registration fee |
$5,510 |
FINRA
filing fee |
$8,000 |
Legal
fees and expenses |
* |
Accounting
fees and expenses |
* |
Transfer
agent fees and expenses |
* |
Trustee
fees and expenses |
* |
Warrant
agent fees and expenses |
* |
Financial
printing and miscellaneous expenses |
* |
Total
|
* |
| * | Except
for the SEC registration fee and FINRA filing fee, estimated expenses are not presently known.
The foregoing sets forth the general categories of expenses that we anticipate we will incur
in connection with the offering of securities under this registration statement. To the extent
required, any applicable prospectus supplement will set forth the estimated aggregate amount
of expenses payable in respect of any offering of securities under the registration statement.
|
Item 15. Indemnification of Directors
and Officers .
Nevada
Revised Statutes (“NRS”) 78.138(7) provides that, subject to limited statutory exceptions and unless the articles of incorporation
or an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer
is not individually liable to a corporation or its stockholders or creditors for any damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven that: (i) the act or failure to act constituted a breach of his or
her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing
violation of law.
NRS
78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation), by reason of the fact that the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person (i) is not liable pursuant
to NRS 78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.
NRS 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection
with the defense or settlement of the action or suit if the person (a) is not liable pursuant to NRS 78.138 or (ii) acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. To the extent that
a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action,
suit or proceeding, or in defense of any claim, issue or matter therein, the
corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or
her in connection with the defense. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to NRS 78.138
or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the
corporation, or that, with respect to any criminal action or proceeding, he or she had reasonable cause to believe that the conduct was
unlawful. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
NRS
78.751(1) provides that any discretionary indemnification pursuant to NRS 78.7502 (unless ordered by a court or advanced pursuant to
NRS 78.751(2)), may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The determination must be made (i) by the stockholders; (ii) by
the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (iii)
if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties to the action, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751(2) provides that the corporation’s articles of
incorporation or bylaws, or an agreement made by the corporation, may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified
by the corporation.
Under
the NRS, the indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in or ordered by a court pursuant to NRS
78.751:
- Does not exclude
any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation
or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the person’s official
capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS
78.7502 or for the advancement of expenses made pursuant to NRS 78.751(2), may not be made to or on behalf of any director or officer
if a final adjudication establishes that the director’s or officer’s acts or omissions involved intentional misconduct, fraud
or a knowing violation of the law and was material to the cause of action; and
- Continues
for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators
of such a person.
A
right to indemnification or to advancement of expenses arising under a provision of the articles of incorporation or any bylaw is not
eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil,
criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought,
unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action
or omission has occurred.
The
Articles of Incorporation of the Company provide that to the fullest extent permitted under the NRS (including, without limitation, to
the fullest extent permitted under NRS 78.7502 and 78.751(3)) and other applicable law, the Company shall indemnify directors and officers
of the Company in their respective capacities as such and in any and all other capacities in which any of them serves at the request
of the Company. The Articles of Incorporation of the Company further provide that the liability of its directors and officers shall be
eliminated or limited to the fullest extent permitted by the NRS, and that if the NRS are amended to further eliminate or limit or authorize
corporate action to further eliminate or limit the liability of directors or officers, the liability of directors and officers of the
Company shall be eliminated or limited to the fullest extent permitted by the NRS, as so amended from time to time; and in addition to
any other rights of indemnification permitted by the laws of the State of Nevada or as may be provided for
by the Company in its Bylaws or by agreement, the expenses of directors and officers incurred in defending a civil or criminal action,
suit or proceeding, involving alleged acts or omissions of such director or officer in his or her capacity as a director or officer of
the Company, must be paid, by the Company or through insurance purchased and maintained by the Company or through other financial arrangements
made by the Company, as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of
an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent
jurisdiction that he or she is not entitled to be indemnified by the Company.
Further,
the Company has entered into indemnification arrangements with each of its directors and executive officers that may be broader than
the specific indemnification provisions contained in the NRS. Such arrangements may require the Company, among other things, to advance
expenses and otherwise indemnify its executive officers and directors against certain liabilities that may arise by reason of their status
or service as executive officers or directors, to the fullest extent permitted by law. The Company intends to enter into indemnification
arrangements with any new directors and executive officers in the future.
Item 16. Exhibits
The following
exhibits are filed herewith, or were previously filed and are hereby incorporated by reference.
25.1+ |
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Form
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107 |
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Filing
Fee Table |
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** Filed
herewith.
*** To
be filed by amendment or as exhibit(s) to a Current Report of the Registrant on Form 8-K and incorporated herein by reference, as applicable.
+ To
be filed pursuant to Section 305(b)(2) of the U.S. Trust Indenture Act of 1939, as applicable.
Item 17. Undertakings .
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 of 1933, as amended
(the "Securities Act"); |
| (ii) | to
reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20%
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 (i), (ii) and (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 (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: each
prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to
an offering, other than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. 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 first use, 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 date of
first use; |
| (5) | that,
for the purpose of determining liability of the 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 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: |
(a)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(b)
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;
(c)
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 an undersigned registrant; and
(d)
any other communication that is an offer in the offering made by the undersigned registrant to
the purchaser.
| (6) | that,
for the purposes of determining any liability under the Securities Act, each filing of the
annual reports of the Registrant pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Exchange Act) that are incorporated by reference in this registration
statement, if any, shall be deemed to be a new registration statement relating to the securities
offered herein, 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 sub section (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section 305(b)(2) of the
Act; |
| (8) | that,
for purposes of determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective; and |
| (9) | that,
for the purpose of determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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. |
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 Securities
and Exchange Commission, such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection
with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to
the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in Redmond, Oregon, on the 27th day of June, 2023.
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EXPION360
INC. |
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By: |
/s/
Brian Schaffner |
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Name: |
Brian
Schaffner |
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Title:
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Chief
Executive Officer |
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian Schaffner and Greg Aydelott,
and each of them, as his or her true and lawful attorneys-in-fact, proxies and agents, each 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 to file the same, with any exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, or any state securities department or any other federal or state agency or governmental
authority granting unto such attorneys-in-fact, proxies and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact, proxies and agents, or their or his or her 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/
Brian Schaffner |
|
Chief
Executive Officer
(Principal Executive Officer) |
|
June
27 , 2023 |
Brian
Schaffner
|
|
|
|
/s/
Greg Aydelott |
|
Chief
Financial Officer
(Principal Financial and Accounting
Officer) |
|
June
27, 2023 |
Greg
Aydelott |
|
|
|
|
|
|
|
|
/s/
David Hendrickson |
|
Director
and Chairman of the Board |
|
June
27, 2023 |
David
Hendrickson |
|
|
|
|
|
|
|
|
/s/
George Lefevre |
|
Director
|
|
June
27, 2023 |
George
Lefevre |
|
|
|
|
|
|
|
|
/s/
Steven M. Shum |
|
Director
|
|
June
27, 2023 |
Steven
M. Shum |
|
|
|
|
|
|
|
|
/s/
Paul Shoun |
|
Director
|
|
June
27, 2023 |
Paul
Shoun |
|
|
|
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