Filed Pursuant to Rule 424(b)(5)
Registration No. 333-269644
Prospectus Supplement
(to Prospectus dated March 21, 2023)
820,836 Shares of Common Stock
Pre-Funded Warrants to Purchase 2,466,836 Shares
of Common Stock
We are offering 820,836 shares of our common stock
(the “Shares”) at a price of $3.65 per share, to investors pursuant to this prospectus supplement and the accompanying prospectus,
and a securities purchase agreement with such investors.
We are also offering 2,466,836 pre-funded warrants
in lieu of Shares to certain investors whose purchase of shares of common stock in this offering would otherwise result in the investor,
together with its affiliates, beneficially owning more than 4.99% (or, at the election of the investor, 9.99%) of our common stock. Each
pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded warrant will be equal
to the price at which the Share and Warrant is sold to the public in this offering, minus $0.00001, and the exercise price of each pre-funded
warrant will be $0.00001 per share. The pre-funded warrants will be immediately exercisable and may be exercised at any time until all
of the pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any
pre-funded warrants sold in this offering.
Our common stock is listed on The Nasdaq Capital
Market, or Nasdaq, under the symbol “VLCN.” On July 10, 2024, the last reported sale price of our common stock on Nasdaq was
$3.65 per share. The pre-funded warrants are not listed on any securities exchange, and we do not expect to list the pre-funded warrants.
Investing in our securities involves a high
degree of risk. See “Risk Factors” beginning on page S-5 of this prospectus supplement and the risk factors incorporated by
reference into this prospectus supplement and the accompanying prospectus.
As of July 11, 2024, the aggregate market value
of the voting and non-voting common equity held by non-affiliates, computed by reference to the price at which the common equity was last
sold on May 13, 2024, was $100.8 million, based on 2,630,946 shares of outstanding common stock as of such date, of which 2,630,927 were
held by non-affiliates.
We are selling the securities directly to the
investors. We have retained Aegis Capital Corp. (the “Aegis”) to act as placement agent in connection with the securities
offered by this prospectus supplement and the accompanying prospectus. Aegis is not purchasing the securities offered by us and are not
required to sell any specific number or dollar amount of securities but have agreed to use their best efforts to solicit offers to purchase
the securities offered by this prospectus supplement and the accompanying prospectus. There are no arrangements to place the funds raised
in this offering in an escrow, trust or similar account. See “Plan of Distribution” beginning on page S-12 of this prospectus
supplement for more information regarding these arrangements.
| |
|
Per Share |
|
|
Per Pre-Funded Warrant |
|
|
Total |
|
| Public offering price |
|
$ |
3.65 |
|
|
$ |
3.64999 |
|
|
$ |
11,999,978.13 |
|
| Placement agent fees(1) |
|
$ |
0.292 |
|
|
$ |
0.2919 |
|
|
$ |
959,998.25 |
|
| Proceeds, before expenses, to us |
|
$ |
3.358 |
|
|
$ |
3.3579 |
|
|
$ |
11,039,979.88 |
|
| (1) |
In addition to the placement agent fees, the placement agent will receive a non-accountable expense allowance of 1.0% of the aggregate gross proceeds in this offering and the reimbursement of up to $100,000 in expenses. See “Plan of Distribution” beginning on page S-12 of this prospectus supplement for more information regarding the compensation payable to the placement agent. |
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus
supplement or the accompanying prospectus. Any representation to the contrary is a criminal offense.
Delivery of the securities offered hereby is expected
to be made on or about July 12, 2024, subject to the satisfaction of certain conditions.
___________________________________
Placement Agent
Aegis Capital
Corp.
The date of this prospectus supplement is July
11, 2024.
Table of Contents
About
This Prospectus Supplement
This prospectus supplement and the accompanying
prospectus are part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing
a “shelf” registration process. Each time we conduct an offering to sell securities under the accompanying prospectus we will
provide a prospectus supplement that will contain specific information about the terms of that offering, including the price, the amount
of securities being offered and the plan of distribution. The shelf registration statement was initially filed with the SEC on February
8, 2023, and was declared effective by the SEC on March 21, 2023. This prospectus supplement describes the specific details regarding
this offering and may add, update or change information contained in the accompanying prospectus. The accompanying prospectus provides
general information about us and our securities, some of which, may not apply to this offering. This prospectus supplement and the accompanying
prospectus are an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful
to do so. We are not making offers to sell or solicitations to buy our common stock in any jurisdiction in which an offer or solicitation
is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful
to make an offer or solicitation.
If information in this prospectus supplement is
inconsistent with the accompanying prospectus or the information incorporated by reference with an earlier date, you should rely on this
prospectus supplement. This prospectus supplement, together with the base prospectus, the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus and any free writing prospectus we have authorized for use in connection with this
offering include all material information relating to this offering. We have not, and the underwriter has not, authorized anyone to provide
you with different or additional information and you must not rely on any unauthorized information or representations. You should assume
that the information appearing in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference in
this prospectus supplement and the accompanying prospectus and any free writing prospectus we have authorized for use in connection with
this offering is accurate only as of the respective dates of those documents. Our business, financial condition, results of operations
and prospects may have changed since those dates. You should carefully read this prospectus supplement, the accompanying prospectus
and the information and documents incorporated herein by reference herein and therein, as well as any free writing prospectus we have
authorized for use in connection with this offering, before making an investment decision. See “Incorporation by Reference”
and “Where You Can Find More Information” in this prospectus supplement and in the accompanying prospectus.
No action is being taken in any jurisdiction outside
the United States to permit a public offering of these securities or possession or distribution of this prospectus supplement or the accompanying
prospectus in that jurisdiction. Persons who come into possession of this prospectus supplement and the accompanying prospectus in jurisdictions
outside the United States are required to inform themselves about and to observe any restrictions as to this offering and the distribution
of this prospectus supplement and the accompanying prospectus applicable to that jurisdiction.
This prospectus supplement and the accompanying
prospectus contain summaries of certain provisions contained in some of the documents described herein which are summaries only and are
not intended to be complete. Reference is made to the actual documents for complete information. All of the summaries are qualified in
their entirety by the full text of the actual documents, some of which have been filed or will be filed and incorporated by reference
herein. See “Where You Can Find More Information” in this prospectus supplement. We further note that the representations,
warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into
this prospectus supplement or the accompanying prospectus were made solely for the benefit of the parties to such agreement, including,
in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus supplement and the accompanying
prospectus contain and incorporate by reference certain market data and industry statistics and forecasts that are based on Company estimates,
independent industry publications and other publicly available information. Although we believe these sources are reliable, estimates
as they relate to projections involve numerous assumptions, are subject to risks and uncertainties, and are subject to change based on
various factors, including those discussed under “Risk Factors” in this prospectus supplement and the accompanying prospectus
and under similar headings in the documents incorporated by reference herein and therein. Accordingly, investors should not place undue
reliance on this information.
Unless otherwise stated or the context requires
otherwise, all references in this prospectus supplement to the “Company,” “we,” “us,” “our”
and “Volcon” refer to Volcon, Inc., a Delaware corporation, and its wholly-owned subsidiaries.
Prospectus
Supplement Summary
This summary highlights information
contained elsewhere in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and
therein. This summary does not contain all of the information that you should consider before deciding to invest in our securities. You
should read this entire prospectus supplement and the accompanying prospectus carefully, including the section entitled “Risk Factors”
beginning on page S-5 and our consolidated financial statements and the related notes and the other information incorporated by reference
into this prospectus supplement and the accompanying prospectus, before making an investment decision.
Our Company
We are an all-electric, off-road powersports
vehicle company developing electric two and four-wheel motorcycles and utility terrain vehicles, or UTVs, also known as side-by-sides,
along with a complete line of upgrades and accessories. In October 2020, we began building and testing prototypes for our future offerings
with two off-road motorcycles – the Grunt and the Runt. Our motorcycles feature unique frame designs protected by design patents.
Additional utility and design patents have been filed for other aspects of Volcon’s vehicles.
Recent Developments
Warrant Amendment
and Exchange
On May 17, 2024, we entered
into separate warrant amendment agreements (collectively, the “Warrant Amendment”) with the holders of a majority-in-interest
of the holders of our Series B warrants issued on November 17, 2023 (the “Series B Warrants”). Pursuant to the Warrant Amendment,
all outstanding Series B Warrants were amended to delete the following sections: (i) a provision providing for the adjustment of the exercise
price and number of shares issuable pursuant to the Series B Warrants if the Company completed a future offering at a price per share
less the exercise price of the Series B Warrants then in effect; and (ii) a provision providing for the adjustment of the exercise price
and number of shares issuable pursuant to the Series B Warrants if price of the Company’s common stock after the completion of a
share split, share dividend, share combination, recapitalization or other similar transaction is less the exercise price of the Series
B Warrants then in effect. In addition, the Warrant Amendment provides that the holders may also exercise the Series B Warrants on a cashless
basis and receive an aggregate number of shares equal the product of the aggregate number of shares of common stock that would be issuable
upon exercise of the Series B Warrants by means of a cash exercise rather than a cashless exercise, multiplied by 0.81.
On May 17, 2024, after
giving effect to the Warrant Amendment, we and certain holders of Series B Warrants to purchase an aggregate of 145,484 shares of common
stock (the “Holders”) entered into separate exchange agreements (the “Agreements”) pursuant to which we agreed
to exchange the Series B Warrants held by the Holders for shares of common stock (or, at the option of the Holder, pre-funded warrants)
at a ratio of 0.81 shares of common stock (or, at the option of the Holder, pre-funded warrants) for each whole Series B Warrant.
Note Offering
On May 20, 2023, we entered
into a Securities Purchase Agreement (the “Purchase Agreement”) with certain institutional investors pursuant to which we
agreed to issue and sell to the investors in a private placement (i) senior non-convertible notes in an aggregate principal amount of
$2,942,352.00 (the “Notes”), and (ii) five-year warrants to purchase approximately 101,000 shares of common stock with an
exercise price of $29.00 per share (the “Warrants”). The Notes are being repaid from the proceeds of this offering.
Aegis acted as exclusive
placement agent for the private placement, and received upon closing cash compensation of 7.2% of the private placement, and expense reimbursement
of $50,000.
Reverse Split
On June 6, 2024, we effected a 1-for-100 reverse
stock split of our common stock. As a result of the reverse stock split, every 100 shares of our common stock issued and outstanding prior
to the opening of trading on June 7, 2024 was consolidated into one issued and outstanding share, with no change in the nominal par value
per share of $0.00001. No fractional shares were issued as a result of the reverse stock split. Stockholders of record who would otherwise
be entitled to receive a fractional share were entitled to the rounding up of the fractional share to the nearest whole number.
Nasdaq Deficiency
As previously reported,
we were notified by the Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market (“Nasdaq”)
that we were not in compliance with Nasdaq’s Listing Rule 5550(a)(2), as the minimum bid price of our common stock had been below
$1.00 per share for 30 consecutive business days, and that the market value of our listed securities had been below the minimum $35,000,000
required for continued listing as set forth in Nasdaq’s Listing Rule 5550(b)(2).
We presented our plan
of compliance to the Nasdaq’s Hearings Panel (“Panel”) on March 26, 2024. On April 2, 2024, we received notification
from the Panel that it granted an extension until June 24, 2024, to demonstrate compliance with the Listing Rules, subject to certain
conditions.
On June 11, 2024, we
received a notice from the Staff that we no longer meets the minimum 500,000 publicly held shares requirement for Nasdaq and, as such,
we no longer complied with Listing Rule 5550(a)(4). Furthermore, the notice indicates that this matter serves as an additional basis for
delisting our securities from Nasdaq, that the Panel will consider this matter in their decision regarding our continued listing on Nasdaq,
and that we should present our views with respect to this additional deficiency to the Panel in writing no later than June 18, 2024. We
submitted a letter to the Panel setting forth our plan to address the deficiency, and have submitted a subsequent correspondence advising
that we have over 500,000 publicly held shares.
Corporate Information
Our principal executive offices are
located at 3121 Eagles Nest, Suite 120, Round Rock, TX 78665. Our website address is www.volcon.com. Information contained in, or accessible
through, our website does not constitute part of this prospectus supplement and inclusions of our website address in this prospectus supplement
are inactive textual references only.
Implications of Being an Emerging Growth Company
We are an “emerging growth company,”
as defined in the Jumpstart Our Business Startups Act, or the JOBS Act. For so long as we remain an emerging growth company, we are permitted
and intend to rely on certain exemptions from various public company reporting requirements, including not being required to have our
internal control over financial reporting audited by our independent registered public accounting firm pursuant to Section 404(b) of the
Sarbanes-Oxley Act of 2002, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements,
and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute payments
not previously approved.
Risks Affecting Our Company
In evaluating an investment in our
securities, you should carefully read this prospectus supplement and especially consider the factors incorporated by reference in the
sections titled “Risk Factors” commencing on page S-5 of this prospectus supplement and in our accompanying prospectus and
the Annual Report on Form 10-K for the year ended December 31, 2023 and Quarterly Report on Form 10-Q for the quarter ended March 31,
2024 incorporated by reference herein
The Offering
| Common stock offered by us |
820,836 shares of our common stock. |
| |
|
| Pre-funded Warrants Offered by Us |
We are also offering 2,466,836 pre-funded warrants in lieu of Shares to certain investors whose purchase of shares of common stock in this offering would otherwise result in the investor, together with its affiliates, beneficially owning more than 4.99% (or, at the election of the investor, 9.99%) of our common stock. Each pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded warrant will equal the price at which a share of common stock is being sold to the public in this offering, minus $0.00001, and the exercise price of each pre-funded warrant will be $0.00001 per share. The pre-funded warrants will be exercisable immediately and may be exercised at any time until all of the pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any pre-funded warrants sold in this offering. |
| |
|
| Common stock to be outstanding after this offering |
3,451,782 assuming no exercise of the pre-funded warrants; 5,918,618, assuming full exercise of the pre-funded warrants. |
| |
|
| Use of Proceeds |
We expect to use the net proceeds from this
offering to repay notes payable, for general corporate purposes and for the payment of fees incurred from our investor relations
firm. See “Use of Proceeds” on page S-8. |
| |
|
| Risk Factors |
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-5 of this prospectus supplement and the risk factors incorporated by reference into this prospectus supplement and the accompanying prospectus. |
| |
|
|
Lock-up |
We, our directors and executive officers have
agreed not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any of our
securities for a period of 90 days after the date of this prospectus. See “Plan of Distribution” for more
information. |
| |
|
| Nasdaq Capital Market Symbol |
VLCN. |
The number of shares of our common stock expected
to be outstanding after this offering is based on 2,630,946 shares of common stock outstanding as of July 11, 2024, and excludes, as of
that date, the following:
| |
· |
153 shares of common stock issuable upon the exercise of outstanding stock options, vested and unvested, with a weighted-average exercise price of $40,500.88 per share; |
| |
· |
120,131 shares of common stock issuable upon the exercise of outstanding warrants with a weighted-average exercise price of $127.35 per share; and |
| |
· |
up to an aggregate of 126 shares of common stock reserved for future issuance under our stock plan, as amended. |
Except as otherwise indicated herein, all information
in this prospectus supplement assumes no exercise of the warrants and options listed above.
Risk
Factors
An investment in our securities
involves risks. We urge you to consider carefully the risks described below, and in the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus, before making an investment decision, including those risks identified under “Item IA.
Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2023, which is incorporated by reference in this
prospectus supplement and which may be amended, supplemented or superseded from time to time by other reports that we subsequently file
with the SEC. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously
harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please
also read carefully the section below entitled “Cautionary Note Regarding Forward-Looking Statements”.
Risks Related to this Offering
If we fail to satisfy
all applicable continued listing requirements of the Nasdaq Capital Market prior to June 24, 2024 our common stock will be delisted from
Nasdaq, which could have an adverse impact on the liquidity and market price of our common stock.
On December 19, 2023,
we were notified by the Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market (“Nasdaq”)
that we were not in compliance with Nasdaq’s Listing Rule 5550(a)(2), as the minimum bid price of our common stock had been below
$1.00 per share for 30 consecutive business days. On January 4, 2024, the Staff notified us that the market value of its listed securities
had been below the minimum $35,000,000 required for continued listing as set forth in Nasdaq’s Listing Rule 5550(b)(2) for the previous
180 calendar days and served as an additional basis for delisting.
We submitted a hearing
request to Nasdaq’s Hearings Department, which stayed the suspension of our common stock. The hearing was held on March 26, 2024.
On April 2, 2024, we received notification from the Nasdaq Hearings Panel (“Panel”) that it has granted an extension until
June 24, 2024, to demonstrate compliance with Listing Rules 5550(a)(2) and 5550(b)(1) (which requires at least $2.5 million in shareholders’
equity), subject to certain conditions. As of the date hereof, we have not received any correspondence from Nasdaq on our compliance status.
On June 11, 2024, we
received a notice from the Staff that we no longer meets the minimum 500,000 publicly held shares requirement for Nasdaq and, as such,
we no longer complied with Listing Rule 5550(a)(4). Furthermore, the notice indicates that this matter serves as an additional basis for
delisting our securities from Nasdaq, that the Panel will consider this matter in their decision regarding our continued listing on Nasdaq,
and that we should present our views with respect to this additional deficiency to the Panel in writing no later than June 18, 2024. We
submitted a letter to the Panel setting forth our plan to address the deficiency, and have submitted a subsequent correspondence advising
that we have over 500,000 publicly held shares.
In the event that our
common stock is delisted from Nasdaq and is not eligible for quotation or listing on another market or exchange, trading of our common
stock could be conducted only in the over-the-counter market or on an electronic bulletin board established for unlisted securities such
as the Pink Sheets or the OTC Bulletin Board. In such an event, it could become more difficult to dispose of, or obtain accurate price
quotations for, our common stock, and there would likely also be a reduction in our coverage by securities analysts and the news media,
which could cause the price of our common stock to decline further. Also, it may be difficult for us to raise additional capital if we
are not listed on a major exchange.
We completed a reverse
stock split on June 6, 2024 in an effort to regain compliance with Nasdaq listing rules and we cannot predict the effect that such reverse
stock split will have on the market price for shares of our common stock.
As discussed above, we
were required to demonstrate compliance with the bid price requirements of Listing Rules 5550(a)(2) prior to June 24, 2024. Our board
of directors approved a one-for-one hundred (1:100) reverse stock split of our common stock, which became effective at 4:01 p.m. Eastern
Time on June 6, 2024. We cannot predict the effect that the reverse stock split will have on the market price for shares of our common
stock, and the history of similar reverse stock splits for companies in like circumstances has varied. Some investors may have a negative
view of a reverse stock split. Even if the reverse stock split has a positive effect on the market price for shares of our common stock,
performance of our business and financial results, general economic conditions and the market perception of our business, and other adverse
factors which may not be in our control could lead to a decrease in the price of our common stock following the reverse stock split.
Furthermore, even if
the reverse stock split does result in an increased market price per share of our common stock, the market price per share following the
reverse stock split may not increase in proportion to the reduction of the number of shares of our common stock outstanding before the
implementation of the reverse stock split. Accordingly, even with an increased market price per share, the total market capitalization
of shares of our common stock after a reverse stock split could be lower than the total market capitalization before the reverse stock
split. Also, even if there is an initial increase in the market price per share of our common stock after a reverse stock split, the market
price may not remain at that level.
If the market price of
shares of our common stock declines following the reverse stock split, the percentage decline as an absolute number and as a percentage
of our overall market capitalization may be greater than would occur in the absence of the reverse stock split due to decreased liquidity
in the market for our common stock. Accordingly, the total market capitalization of our common stock following the reverse stock split
could be lower than the total market capitalization before the reverse stock split.
You will experience immediate and substantial
dilution in the book value per share of the common stock you purchase in the offering.
Because the public offering price per share of
our common stock being offered is substantially higher than the net tangible book value per share of our outstanding common stock, you
will suffer immediate and substantial dilution in the net tangible book value of the common stock you purchase in this offering. Investors
purchasing shares of our common stock in this offering will incur immediate dilution of $1.52 per share on a pro forma basis, after deducting
the placement agent fees, estimated offering expenses payable by us and the repayment of debt with the proceeds of this offering. See
“Dilution” on page S-10 of this prospectus supplement for a more detailed discussion of the dilution you will incur if you
purchase shares in this offering.
In addition, we may choose to raise additional
capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating
plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these
securities could result in further dilution to our stockholders or result in downward pressure on the price of our common stock
Our management will have broad discretion over
the use of the net proceeds from this offering, you may not agree with how we use the proceeds, and the proceeds may not be invested successfully.
Our management will have broad discretion in the
application of the net proceeds from this offering, and our stockholders will not have the opportunity as part of their investment decision
to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine
our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. The failure
by our management to apply these funds effectively could harm our business. See “Use of Proceeds” on page S-8 of this prospectus
supplement for a description of our proposed use of proceeds from this offering.
We do not intend to pay dividends in the foreseeable
future.
We have never paid cash dividends on our common
stock and currently do not plan to pay any cash dividends in the foreseeable future.
Holders of pre-funded warrants purchased in
this offering will have no rights as common stockholders until such holders exercise their pre-funded warrants and acquire our common
stock.
Until holders of pre-funded warrants acquire shares
of our common stock upon exercise thereof, such holders will have no rights with respect to the shares of our common stock underlying
the pre-funded warrants. Upon exercise of the pre-funded warrants, the holders will be entitled to exercise the rights of a common stockholder
only as to matters for which the record date occurs after the exercise date.
Cautionary
Note Regarding Forward-Looking Statements
This prospectus supplement, the accompanying prospectus
and the documents we have filed with the SEC that are incorporated by reference herein and therein contain forward-looking statements
within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Forward-looking statements concern our current plans, intentions, beliefs, expectations and statements of future economic
performance. Statements containing terms such as “will,” “may,” “believe,” “do not believe,”
“plan,” “expect,” “intend,” “estimate,” “anticipate” and other phrases of
similar meaning are considered to be forward-looking statements.
Forward-looking statements include, but are not limited to, statements
about:
| |
· |
our ability to maintain the listing of our common stock on the Nasdaq Stock Market; |
| |
· |
our ability to generate revenues from sales, generate cash from operations, or obtain additional funding to market our vehicles and develop new products; |
| |
· |
our ability to successfully implement and effectively manage our outsourced manufacturing, design and development model and achieve any anticipated benefits; |
| |
· |
the ability of third party manufacturers to produce our vehicles in accordance with our design and quality specifications, with sufficient scale to satisfy customers and within a reasonable cost; |
| |
· |
anticipated timing for the manufacture, design, production, shipping and launch of our vehicles; |
| |
· |
the inability of our suppliers to deliver the necessary components for our vehicles at prices and volumes acceptable to our third party manufacturers; |
| |
· |
our ability to establish a network of dealers and international distributors to sell and service our vehicles on the timeline we expect; |
| |
· |
whether our vehicles will perform as expected; |
| |
· |
our facing product warranty claims or product recalls; |
| |
· |
our facing adverse determinations in significant product liability claims; |
| |
· |
customer adoption of electric vehicles; |
| |
· |
the development of alternative technology that adversely affects our business; |
| |
· |
increased government regulation of our industry; |
| |
· |
tariffs and currency exchange rates; and |
| |
· |
the conflict with Russia and Ukraine and the potential adverse effect it may have on the availability of materials used in the manufacturing of batteries for our vehicles. |
Forward-looking statements are based on our assumptions
and are subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those reflected
in or implied by these forward-looking statements. Factors that might cause actual results to differ include, among others, those set
forth under “Risk Factors” in this prospectus supplement and those discussed in “Management’s Discussion and Analysis
of Financial Condition and Results of Operation” in our most recent Annual Report on Form 10-K and in our future reports filed with
the SEC, all of which are incorporated by reference herein. Readers are cautioned not to place undue reliance on any forward-looking statements
contained in this prospectus supplement, the accompanying prospectus or the documents we have filed with the SEC that are incorporated
by reference herein and therein, which reflect management’s views and opinions only as of their respective dates. We assume no obligation
to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking
statements, except to the extent required by applicable securities laws.
You should carefully read this prospectus supplement,
the accompanying prospectus and the information incorporated herein by reference as described under the heading “Incorporation of Documents by Reference,” and the documents that we reference in this prospectus supplement and the accompanying prospectus and have
filed as exhibits to the registration statement of which this prospectus supplement and the accompanying prospectus are a part with the
understanding that our actual future results, levels of activity, performance and achievements may be materially different from what we
expect. We qualify all of our forward-looking statements by these cautionary statements.
Use
of Proceeds
We estimate that the net proceeds from this offering
will be approximately $10.7 million, after deducting the estimated placement agent fees and estimated offering expenses payable by us,
assuming all of the Shares (or pre-funded warrants) offered hereby are sold.
We intend to use the net proceeds from this offering:
(i) to repay $2.94 million in principal amount of our May 2024 notes payable that carry an interest rate of 10% per annum and mature May
2025, and (ii) for working capital and general corporate purposes. This represents our best estimate of the manner in which we will use
the net proceeds we receive from this offering based upon the current status of our business, but we have not reserved or allocated amounts
for specific purposes and we cannot specify with certainty how or when we will use any of the net proceeds. Amounts and timing of our
actual expenditures will depend on numerous factors. Our management will have broad discretion in applying the net proceeds from this
offering.
Pending application of the net proceeds as described
above, we intend to invest the proceeds to us in investment-grade, interest-bearing securities such as money market funds, certificates
of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We cannot predict whether the proceeds invested
will yield a favorable, or any, return.
Dividend
Policy
We have never declared or paid any cash dividends
on our capital stock, and we do not currently intend to pay any cash dividends on our common stock for the foreseeable future. We expect
to retain future earnings, if any, to fund the development and growth of our business. Any future determination to pay dividends on our
common stock will be at the discretion of our board of directors and will depend upon, among other factors, our results of operations,
financial condition, capital requirements and any contractual restrictions.
Dilution
If you invest in our common stock in this offering,
your interest will be diluted immediately to the extent of the difference between the public offering price per share of our common stock
and the as adjusted net tangible book value per share of our common stock immediately after this offering.
As of March 31, 2024, our as reported net tangible
book value was $3.8 million, or $13.56 per share of common stock. Net tangible book value per share represents our total tangible assets,
less our total liabilities, divided by the number of outstanding shares of our common stock. After giving effect to: (i) the issuance
of $2.94 million in notes payable in May 2024 (the “May Notes”); (ii) the issuance subsequent to March 31, 2024 of 2,214,951
shares of common stock upon the conversion of our Series A preferred stock; and (iii) the issuance subsequent to March 31, 2024 of 136,965
shares of our common stock upon the exercise outstanding warrants, our as adjusted net tangible book value was $4.8 million, or $1.83
per share of common stock.
After giving effect to: (i) the repayment of the
May Notes; and (ii) sale of 820,836 shares of our common stock in this offering at the public offering price of $3.65 per share,
the issuance of pre-funded warrants to purchase 2,466,836 shares of common stock and assuming the exercise of such pre-funded warrants
into common stock, and after deducting the placement agent fees and estimated offering expenses payable by us, our as adjusted net tangible
book value as of March 31, 2024 would have been approximately $12.6 million, or approximately $2.13 per share. This represents an
immediate increase in net tangible book value of approximately $0.30 per share to our existing stockholders and an immediate dilution
of approximately $1.52 per share to new investors participating in this offering. The following table illustrates this dilution on a per
share basis:
| Public offering price per share | |
| | | |
$ | 3.65 | |
| Net tangible book value per share as of March 31, 2024 (as adjusted) | |
$ | 1.83 | | |
| | |
| Increase in net tangible book value per share attributable to this offering | |
$ | 0.30 | | |
| | |
| As adjusted net tangible book value per share after giving effect to this offering | |
| | | |
$ | 2.13 | |
| Dilution per share to new investors participating in this offering on an as adjusted basis | |
| | | |
$ | 1.52 | |
The number of shares of common stock to be outstanding
after this offering is based on 279,344 shares outstanding as of March 31, 2024 plus (i) the issuance subsequent to March 31, 2024 of
2,214,951 shares of common stock upon the conversion of our Series A preferred stock; and (ii) the issuance subsequent to March 31, 2024
of 136,965 shares of our common stock upon the exercise outstanding warrants, and excludes:
| |
· |
153 shares of common stock issuable upon the exercise of outstanding stock options, vested and unvested, with a weighted-average exercise price of $40,500.88 per share; |
| |
· |
120,131 shares of common stock issuable upon the exercise of outstanding warrants with a weighted-average exercise price of $127.35 per share; and |
| |
· |
up to an aggregate of 126 shares of common stock reserved for future issuance under our stock plan, as amended. |
The above illustration of dilution per share to
investors participating in this offering assumes no exercise of outstanding options or warrants to purchase our common stock, and no conversion
of convertible notes. The exercise of outstanding options or warrants or the conversion of convertible notes having an exercise or conversion
price less than the offering price would increase dilution to investors participating in this offering. In addition, we may choose to
raise additional capital depending on market conditions, our capital requirements and strategic considerations, even if we believe we
have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through our sale of equity
or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
Description
Of The Securities We Are Offering
The following description of our common stock summarizes the material
terms and provisions thereof, including the material terms of the common stock we are offering under this prospectus supplement and the
accompanying prospectus.
Common Stock
The material terms and provisions of our common stock are described
under the caption “Description of Common Stock” of the accompanying prospectus.
Plan
of Distribution
Aegis Capital Corp.,
or Aegis, has agreed to act as our sole placement agent in connection with this offering subject to the terms and conditions of a placement
agency agreement, dated July 11, 2024 between Aegis and us. Aegis is not purchasing or selling any securities offered by this prospectus
supplement, nor is the placement agent required to arrange the purchase or sale of any specific number or dollar amount of the securities
offered. The placement agent has agreed to use reasonable best efforts to arrange for the sale of all of the securities offered hereby.
Therefore, we may not sell the entire amount of the securities offered pursuant to this prospectus supplement. The placement agent may
engage one or more sub-agents or selected dealers in connection with this offering.
In connection with the
offering, we entered into a securities purchase agreement with each purchaser. This agreement includes representations and warranties
by us and each purchaser. The public offering price of the securities in this offering has been determined based upon arm’s-length
negotiations between the purchasers and us. Our obligation to issue and sell the securities to the investors is subject to the closing
conditions set forth in the securities purchase agreement, including the absence of any material adverse change in our business and the
receipt of certain opinions, letters and certificates from us or our counsel, which may be waived by the respective parties. All of the
securities will be sold at the offering price specified in this prospectus supplement and, we expect, at a single closing.
The securities being
offered pursuant to this prospectus supplement and the accompanying prospectus are being bought by certain accredited investors pursuant
to the securities purchase agreement, with Aegis Capital Corp. acting as placement agent in connection with this offering.
Commissions and Expenses
We have agreed to pay
the placement agent an aggregate cash placement fee equal to eight percent (8.0%) of the gross proceeds in this offering. In addition,
we have agreed to pay the placement agent a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the offering.
We have also agreed to reimburse the Placement Agent for reasonable legal fees and disbursements incurred by the placement agent not to
exceed an aggregate of $100,000. We estimate that the total expenses payable by us in connection with this offering, other than the placement
agent fees referred to above, will be approximately $175,000.
Discretionary Accounts
Aegis has informed us that it does not expect
to make sales to accounts over which it exercises discretionary authority in excess of five percent (5%) of the securities being offered
in this offering.
Indemnification
We have agreed to indemnify Aegis, its affiliates,
and each person controlling Aegis against any losses, claims, damages, judgments, assessments, costs, and other liabilities, as the same
are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of the offering, undertaken in good faith.
Lock-Up Agreements
Pursuant to certain “lock-up” agreements,
our executive officers and directors have agreed, subject to certain exceptions, not to offer, sell, assign, transfer, pledge, contract
to sell, or otherwise dispose of or announce the intention to otherwise dispose of, or enter into any swap, hedge or similar agreement
or arrangement that transfers, in whole or in part, the economic risk of ownership of, directly or indirectly, engage in any short selling
of any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock (“Lock-Up
Securities”), whether currently owned or subsequently acquired, without the prior written consent of the placement agent, for a
period of ninety (90) days after the closing date of the offering.
The placement agent, in its sole discretion, may
release the Common Stock and other securities subject to the lock-up agreements described above in whole or in part at any time. When
determining whether or not to release Common Stock and other securities from lock-up agreements, the placement agent will consider, among
other factors, the holder’s reasons for requesting the release, the number of shares of Common Stock and other securities for which
the release is being requested and market conditions at the time.
Company Standstill
We have agreed, for a period of ninety (90) days
after the closing date of the offering (the “Standstill Period”), that without the prior written consent of Aegis, we will
not (a) offer, sell, issue, or otherwise transfer or dispose of, directly or indirectly, any equity of our Company or any securities convertible
into or exercisable or exchangeable for equity of our Company; (b) file or caused to be filed any registration statement with the Commission
relating to the offering of any equity of our Company or any securities convertible into or exercisable or exchangeable for equity of
our Company; or (c) enter into any agreement or announce the intention to effect any of the actions described in subsections (a) or (b)
hereof (all of such matters, the “Standstill Restrictions”). So long as none of such equity securities shall be saleable in
the public market until the expiration of the Standstill Period, the following matters shall not be prohibited by the Standstill Restrictions:
(i) the adoption of an equity incentive plan and the grant of awards or equity pursuant to any equity incentive plan, and the filing of
a registration statement on Form S-8; and (ii) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of our Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the Standstill Period, and provided that any such issuance shall only be to a person or entity (or to the equity holders of an
entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the
business of our Company and shall provide to our Company additional benefits in addition to the investment of funds, but shall not include
a transaction in which our Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business
is investing in securities. In no event should any equity transaction during the Standstill Period result in the sale of equity at an
offering price to the public less than that of this offering.
Tail Financing
Aegis shall be entitled to compensation with respect
to any public or private offering or other financing or capital raising transaction of any kind (“Tail Financing”) to the
extent that such financing or capital is provided to us by investors Aegis has introduced to us and/or contacted on our behalf through
an in-person, electronic or telephonic communication or investors that Aegis had “wall-crossed” in connection with this offering
(or any entity under common management or having a common investment advisor), if such Tail Financing is consummated at any time within
the twelve (12) months period beginning on the Closing or the expiration or termination of engagement letter between Aegis and us dated
July 11, 2024.
Other Relationships
The placement agent is a full service financial
institution engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment
management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities
and services. The placement agent may in the future provide various investment banking, commercial banking and other financial services
for us and our affiliates for which they may in the future receive customary fees.
In the ordinary course of its business activities,
the placement agent and its affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and
actively traded securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their
own account and for the accounts of their customers, and such investment and trading activities may involve or relate to assets, securities
and/or instruments of the issuer (directly, as collateral securing other obligation or otherwise) publish or express independent research
views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire,
long and/or short positions in such assets, securities and instruments.
In May 2024, we entered into a securities purchase agreement with certain
institutional investors pursuant to which we agreed to issue and sell to the Investors in a private placement (i) senior non-convertible
notes in an aggregate principal amount of $2,942,352.00 (the “May 2024 Notes”), and (ii) five-year warrants to purchase approximately
101,000 shares of Company common stock with an exercise price of $29.00 per share (the “May 2024 Warrants”). Aegis acted as
exclusive placement agent for the private placement, and received upon closing cash compensation of 7.2% of the private placement, and
expense reimbursement of $50,000.
In November 2023, we entered into an underwriting
agreement (the “November 2023 Underwriting Agreement”) with Aegis, in connection with a firm commitment underwritten public
offering (the “November 2023 Offering”) of (i) 740 common units (“November 2023 Common Units”), each consisting
of one share of common stock, 0.35 of a warrant to purchase one share of common stock at an exercise price of $2,475.00 per share (or
130% of the price of each Common Unit sold in the November 2023 Offering) or pursuant to an alternative cashless exercise option, which
warrant will expire on the five-year anniversary of the original issuance date (the “November 2023 Series A Warrants”) and
0.35 of a warrant to purchase one share of common stock at an exercise price of $3,780.00 per share (or 200% of the price of each Common
Unit sold in the November 2023 Offering), which warrant will expire on the five-year anniversary of the original issuance date (the “November
2023 Series B Warrants”); and (ii) 8,785 pre-funded units (the “November 2023 Pre-funded Units” and together with the
November 2023 Common Units, the “November 2023 Units”), each consisting of one pre-funded warrant to purchase one share of
common stock (the “November 2023 Pre-funded Warrants”), 0.35 of a November 2023 Series A Warrant and 0.35 of a November 2023
Series B Warrant. The purchase price of each November 2023 Common Unit was $1,890.00, and the purchase price of each November 2023 Pre-Funded
Unit was $1,889.96 (which is equal to the public offering price per November 2023 Common Unit to be sold in the Offering minus $0.00001).
In connection with the November 2023 Offering, Aegis received an underwriting discount of 8.0% to the public offering price for the November
2023 Units. In addition, we agreed to (a) pay a non-accountable expense allowance to the Underwriter equal to 1.0% of the gross proceeds
received in the November 2023 Offering and (b) to reimburse the Underwriter for certain out-of-pocket expenses, including, but not limited
to, up to $100,000 for reasonable legal fees and disbursements for the Underwriter’s counsel.
In September 2023, Aegis served as the underwriter
in connection with a public offering (the “September 2023 Offering”) of an aggregate of 63 shares of our common stock, par
value $0.00001 per share, pursuant to an underwriting agreement between Aegis and us (the “September 2023 Underwriting Agreement”)
containing standard terms, including standstill provisions. The Offering closed on September 18, 2023, and we received net proceeds of
approximately $571,000 after deducting underwriting discounts and commissions and estimated expenses payable by us associated with the
Offering. Under the terms of the September 2023 Underwriting Agreement, Aegis received an underwriting discount of 4.0% to the public
offering price. Pursuant to the September 2023 Underwriting Agreement, the Company also issued to Aegis or its designees warrants to purchase
up to 20.0% of the aggregate number of shares issued in the Offering with an exercise price equal to 125% of the offering price, or $0.625
per share, subject to adjustments. In addition, the Company agreed to reimburse the Aegis’s fees and expenses of $50,000.
On September 29, 2023, we entered into a warrant
inducement agreement with holders of August 2022 and May 2023 convertible note offerings (the “Investors”). In connection
with this agreement, we lowered the exercise price of 69 warrants to purchase our common stock to $7,875.00 per share and the Investor
exercised these warrants and paid us $537,250. In addition, we issued 70 warrants (“New Warrants”) to purchase our common
stock with an exercise price of $11,250.00 per share. The New Warrants can be exercised for unregistered shares of our common stock and
expire on August 24, 2027. On October 3, 2023, we entered into a waiver agreement with Aegis (the “Waiver”) pursuant to which
Aegis agreed to waive the standstill provisions of the September Underwriting Agreement in connection with the issuance of the New Warrants
to GLV Ventures. The Waiver is limited solely to the proposed issuance of the New Warrants to GLV Ventures. Aegis is not a party to the
warrant inducement agreement, and will not receive any compensation in connection with the warrant inducement agreement, the issuance
of the New Warrants or the Waiver.
Determination of Offering Price
The public offering price
of the securities we are offering was negotiated between us and the investors, in consultation with the placement agent based on the trading
of our Common Stock prior to the offering, among other things. Other factors considered in determining the public offering price of the
securities we are offering include our history and prospects, the stage of development of our business, our business plans for the future
and the extent to which they have been implemented, an assessment of our management, general conditions of the securities markets at the
time of the offering and such other factors as were deemed relevant.
Regulation M
The placement agent may be deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale
of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), including, without limitation, Rule 415(a)(4) under the Securities
Act and Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of
shares of Common Stock by the placement agent acting as principal. Under these rules and regulations, the placement agent:
| · | may not engage in any stabilization activity in connection with our securities;
and |
| · | may not bid for or purchase any of our securities or attempt to induce any
person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed its participation in
the distribution. |
Indemnification
We have agreed to indemnify
the placement agent against certain liabilities, including liabilities under the Securities Act, and liabilities arising from breaches
of representations and warranties contained in the placement agency agreement, or to contribute to payments that the placement agent may
be required to make in respect of those liabilities.
Potential Conflicts of Interest
The placement agent and
its affiliates may, from time to time, engage in transactions with and perform services for us in the ordinary course of their business
for which it may receive customary fees and reimbursement of expenses. In the ordinary course of its various business activities, the
placement agent and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related
derivative securities) and financial instruments (including bank loans) for its own accounts and for the accounts of its customers and
such investment and securities activities may involve securities and/or instruments of our Company. The placement agent and is affiliates
may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments
and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
Electronic Distribution
This prospectus may be
made available in electronic format on websites or through other online services maintained by the placement agent or by an affiliate.
Other than this prospectus, the information on the placement agent’s website and any information contained in any other website
maintained by the placement agent is not part of this prospectus supplement and the accompanying base prospectus or the registration statement
of which this prospectus supplement and the accompanying base prospectus forms a part, has not been approved and/or endorsed by us or
the placement agent, and should not be relied upon by investors.
Offer Restrictions Outside the United States
Other than in the United
States, no action has been taken by us or the placement agent that would permit a public offering of the securities offered by this prospectus
in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly
or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such
securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable
rules and regulations of that jurisdiction. Persons who come into possession of this prospectus are advised to inform themselves about
and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute
an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer
or a solicitation is unlawful.
Transfer Agent and Registrar
The transfer agent and
registrar for our Common Stock is Computershare.
Trading Market
Our Common Stock Common
Stock is listed on the Nasdaq Capital Market under the symbol “VLCN.”
Legal
Matters
The validity of the common stock offered hereby
will be passed upon for us by ArentFox Schiff LLP, Washington, DC. Kaufman & Canoles, P.C., Richmond, Virginia, is acting as counsel
for the underwriter in connection with this offering.
Experts
The audited financial statements incorporated
by reference in this prospectus and elsewhere in the registration statement have been incorporated by reference in reliance upon the report
of MaloneBailey LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
Incorporation
by Reference
The SEC allows us to “incorporate by reference”
into this prospectus supplement the information in other documents that we file with it. This means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus supplement,
and information in documents that we file later with the SEC will automatically update and supersede information contained in documents
filed earlier with the SEC or contained in this prospectus supplement. We incorporate by reference in this prospectus supplement the documents
listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior
to the termination of the offering under this prospectus supplement; provided, however, that we are not incorporating, in each case, any
documents or information deemed to have been furnished and not filed in accordance with SEC rules:
| |
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 28, 2024. |
| |
|
|
| |
· |
Our Quarterly Report on Form 10-Q filed with the SEC on May 7, 2024. |
| |
|
|
| |
· |
Our Definitive Proxy Statement on Schedule 14A filed on April 25, 2024; |
| |
|
|
| |
· |
Our Current Report on Form 8-K filed with the SEC on January 4, 2024; January 5, 2024; January 12, 2024; January 19, 2024; February 5, 2024; February 23, 2024; March 1, 2024; March 4, 2024; March 25, 2024; April 4, 2024; April 5, 2024; May 17, 2024; May 20, 2024; May 30, 2024; June 7, 2024; June 14, 2024; and July 12, 2024. |
| |
|
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· |
The description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on October 1, 2021, and any other amendment or report filed for the purpose of updating such description, including any exhibits to our Annual Report on Form 10-K. |
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 this prospectus supplement and accompanying prospectus, but excluding any information
furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus supplement and deemed to be
part of this prospectus supplement from the date of the filing of such reports and documents.
You may obtain a copy of any or all of the documents
referred to above, which may have been or may be incorporated by reference into this prospectus supplement, including exhibits, at no
cost to you by writing or telephoning us at the following address:
Volcon, Inc.
Attn: Chief Financial Officer
3121 Eagles Nest, Suite 120
Round Rock
TX 78665
Tel: (512) 400-4271
Email: greg@volcon.com.
Where
You Can Find More Information
This prospectus supplement and the accompanying
prospectus are part of a registration statement on Form S-3 we filed with the SEC under the Securities Act and do not contain all the
information set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus supplement
or the accompanying prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should
refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by
reference into this prospectus supplement or the accompanying prospectus for a copy of such contract, agreement or other document. Because
we are subject to the information and reporting requirements of the Exchange, we file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy information filed by us with the SEC at the SEC’s public reference section,
100 F Street, N.E., Washington, D.C. 20549. Information regarding the operation of the public reference section can be obtained by calling
1-800-SEC-0330. The SEC also maintains an Internet site at http://www.sec.gov that contains reports, statements and other information
about issuers, such as us, who file electronically with the SEC.
The information in this prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated
March 15, 2023
PROSPECTUS
$200,000,000
Volcon, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
____________________
We may from time to time issue
up to $200,000,000 aggregate dollar amount of common stock, preferred stock, debt securities, warrants or units of securities consisting
of some or all of these securities, in any combination, together or separately, in one or more offerings, in amounts, at prices and on
the terms determined at the time of the offering. We will specify in the accompanying prospectus supplement the terms of the securities
to be offered and sold. We may sell these securities directly to you, through underwriters, dealers or agents we select, or through a
combination of these methods. We will describe the plan of distribution for any particular offering of these securities in the applicable
prospectus supplement.
This prospectus may not
be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
Our common stock is listed
on The NASDAQ Capital Market and is traded under the symbol “VLCN”. On March 13, 2023, the closing price of the common stock,
as reported on NASDAQ, was $1.44 per share.
As of February 6, 2023, the
aggregate market value of our outstanding common stock held by non-affiliates was approximately $29.1 million, based on 24,426,260 shares
of outstanding common stock, of which approximately 17,299,970 shares were held by non-affiliates, and a per share price of $1.68 based
on the closing sale price of our common stock on February 6, 2023.
Investing in our securities
is highly speculative and involves a high degree of risk. You should purchase these securities only if you can afford a complete loss
of your investment. You should carefully consider the risks and uncertainties described under the heading “Risk Factors” beginning
on page 6 of this prospectus before making a decision to purchase 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.
The date of this prospectus is ____, 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration
process. Under this shelf registration process, we may sell the securities described in this prospectus in one or more offerings up to
a total dollar amount of $200,000,000.
We have provided to you in
this prospectus a general description of the securities we may offer. Each time we sell securities under this shelf registration process,
we will provide a prospectus supplement that will contain specific information about the terms of that offering. That prospectus supplement
may include additional risk factors or other special considerations applicable to the securities being offered. We may also add, update
or change in the prospectus supplement any of the information contained in this prospectus. To the extent there is a conflict between
the information contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement,
provided that if a statement in any document is inconsistent with a statement in another document having a later date - for example, a
document incorporated by reference in this prospectus or any prospectus supplement - the statement in the document having the later date
modifies or supersedes the earlier statement. You should read both this prospectus and the prospectus supplement together with the additional
information described under “Where You Can Find More Information.”
THIS PROSPECTUS MAY NOT
BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The registration statement
containing this prospectus, including the exhibits to the registration statement, provides additional information about us and the securities
offered under this prospectus. The registration statement, including the exhibits, can be read at the SEC website or at the SEC offices
mentioned under the heading “Where You Can Find More Information.”
You should rely only on the
information incorporated by reference or provided in this prospectus and the accompanying prospectus supplement. We have not authorized
anyone to provide you with different information. We are not making an offer to sell or soliciting an offer to buy these securities in
any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified
to do so or to anyone to whom it is unlawful to make the offer or solicitation. You should not assume that the information in this prospectus
or the accompanying prospectus supplement is accurate as of any date other than the date on the front of the document.
Unless the context requires
otherwise, references to the “Company,” “we,” “our,” and “us,” refer to Volcon, Inc. and
its subsidiaries, except that such terms refer to only Volcon, Inc. and not its subsidiaries in the sections entitled “Description
of Common Stock,” “Description of Preferred Stock,” “Description of Warrants,” “Description of the
Debt Securities,” and “Description of the Stock Purchase Contracts and Stock Purchase Units.”
PROSPECTUS SUMMARY
This summary provides an overview of selected
information contained elsewhere or incorporated by reference in this prospectus and does not contain all of the information you should
consider before investing in our securities. You should carefully read the prospectus, the information incorporated by reference and the
registration statement of which this prospectus is a part in their entirety before investing in our securities, including the information
discussed under “Risk Factors” in this prospectus and the documents incorporated by reference and our financial statements
and notes thereto that are incorporated by reference in this prospectus. As used in this prospectus, unless the context otherwise indicates,
the terms “we,” “our,” “us,” the “Company,” or “Volcon” refer to Volcon, Inc.,
a Delaware corporation.
OUR COMPANY
We are an all-electric, off-road
powersports vehicle company developing and building electric two and four-wheel motorcycles and utility terrain vehicles (UTVs), also
known as side-by-sides, along with a complete line of upgrades and accessories. In October 2020, we began building and testing prototypes
for our future offerings with two off-road motorcycles – the Grunt and the Runt. Our motorcycles feature unique frame designs protected
by design patents. Additional utility and design patents have been filed for other aspects of Volcon’s vehicles.
We initially began to sell
and distribute the Grunt and related accessories in the U.S. on a direct-to-consumer sales platform. We terminated our direct-to-consumer
sales platform in November 2021. Prior to the termination of our direct-to-consumer sales platform, U.S. customers made deposits for 360
Grunts (net of cancellations) and five Runts, plus accessories and a delivery fee representing total deposits of $2.2 million. These orders
were cancelable by the customer until the vehicle was delivered and after a 14-day acceptance period, therefore the deposits were recorded
as deferred revenue. As of June 30, 2022, we had completed shipping of all Grunts sold through our direct-to-consumer sales platform.
Due to delays in developing the Runt, we refunded the deposits made for all Runts.
Beginning in November 2021,
we began negotiating dealership agreements with powersports dealers to display and sell our vehicles and accessories. Customers can now,
or will soon be able to, buy our vehicles and accessories directly from a local dealership. Some of these dealers will also provide warranty
and repair services to customers. Through December 31, 2022, we have entered into 151 dealership agreements. Upon sale of a Grunt the
dealer may order an additional Grunt. We also expect to be able to offer the dealers a financing option, or “floor plan” to
make larger purchases of our vehicles but we do not currently have this financing option available. We have agreements with third-party
financing companies to provide financing to qualified customers of each dealer. There is no recourse to the Company or the dealer if the
dealer’s customer defaults on the financing agreement with this third-party.
As of December 31, 2022, we
have signed agreements with five importers in Latin America and one importer for the Caribbean Region, collectively referred to herein
as the LATAM importers to sell our vehicles and accessories in their assigned countries/markets. In June 2022 we signed an exclusive distribution
agreement with Torrot Electric Europa S.A., referred to herein as Torrot, to distribute their electric motorcycles for youth riders in
Latin America. We will use our LATAM importers to sell Torrot’s products in Latin America.
In October 2022, we signed
an expanded agreement with Torrot to also be the exclusive distributor of Torrot and Volcon co-branded youth electric motorcycles in the
United States as well as Latin America. This agreement supersedes the original Torrot agreement and once all Torrot branded inventory
is sold, we will no longer distribute Torrot branded motorcycles. Finally, in December 2022 we signed an expanded agreement with
Torrot to be the exclusive distributor of Volcon co-branded youth electric motorcycles in Canada.
We expect to expand our global
sales of our vehicles and accessories beyond our current LATAM importer base. We expect to sign more LATAM importers in 2023 and expect
to begin selling in Canada, Europe and Australia in 2023. We expect export sales to be executed with individual importers in each country
that buy vehicles by the container. Each importer will sell vehicles and accessories to local dealers or directly to customers. Local
dealers will provide warranty and repair services for vehicles purchased in their country.
In July 2022, we expanded
our offerings with the introduction of the first of our Volcon Stag UTV models, the Stag, which we anticipate will be available for delivery
in the first half of 2023, followed by additional models of the Stag expected in 2024 and 2025 and the introduction of a higher performance,
longer range UTV (to be named) which we expect to begin delivering in 2025. The Stag will be manufactured by a third-party and incorporate
electrification units, which include batteries, drive units and control modules provided by General Motors. Beginning in June 2022 we
have taken non-binding pre-production orders which are cancelable prior to delivery.
Through August 2022 we assembled
the Grunt in a leased production facility in Round Rock, Texas. In August 2022 we announced that we will outsource the manufacturing of
the Grunt to a third-party manufacturer, which we anticipate will reduce costs and improve profitability on the Grunt and began receiving
Grunts from this manufacturer in January 2023. We also outsourced the manufacturing of the 2023 Grunt EVO to the same third-party manufacturer.
The 2023 Grunt EVO will replace the Grunt and has a belt drive rather than a chain drive as well as an updated rear suspension.
In September 2022, we reduced
our headcount in our product development and administration departments as we outsourced the design and development of certain components
of our vehicle development. We also hired our Chief Marketing Officer and expect to hire additional sales and marketing employees and
increase marketing activities to further support our brand and products.
We began taking pre-orders
for an E-Bike, the Brat, in September 2022 and shipments to customers began in the fourth quarter of 2022. In February 2023, we
began selling the Brat directly to consumers through our website. Consumers who order the Brat from our website will have the option
to have the Brat shipped to their specified destination or to have it shipped to a dealer where they can pick it up. The Brat is being
manufactured by a third-party.
In November 2022 we finalized
an agreement for a third-party to manufacture the Runt. We expect to receive prototypes of the Runt in the first quarter of 2023
and to begin sales in the second quarter of 2023.
The estimated fulfillment
of all orders we have received to date assumes that our third-party manufacturers can successfully meet our order quantities and deadlines.
If they are unable to satisfy orders on a timely basis, our customers may cancel their orders.
Implications of Being an Emerging Growth Company
We qualify as an “emerging
growth company” as the term is used in The Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), and therefore,
we may take advantage of certain exemptions from various public company reporting requirements, including:
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a requirement to only have two years of audited financial statements and only two years of related selected financial data and management’s discussion and analysis; |
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exemption from the auditor attestation requirement on the effectiveness of our internal controls over financial reporting; |
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reduced disclosure obligations regarding executive compensation; and |
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exemptions from the requirements of holding a non-binding advisory stockholder vote on executive compensation and any golden parachute payments. |
We may take advantage of these
provisions for up to five years or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging
growth company if we have more than $1.235 billion in annual revenues, have more than $700.0 million in market value of our capital stock
held by non-affiliates or issue more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage
of some, but not all, of the available benefits of the JOBS Act. We have taken advantage of some of the reduced reporting requirements
in this prospectus. Accordingly, the information contained herein may be different than the information you receive from other public
companies in which you hold stock. In addition, the JOBS Act provides that an emerging growth company can delay adopting new or revised
accounting standards until such time as those standards apply to private companies. We have elected to avail ourselves of this exemption
from new or revised accounting standards and, therefore, we will not be subject to the same new or revised accounting standards as other
public companies that are not emerging growth companies.
COMPANY
INFORMATION
We are a Delaware corporation
and were incorporated in February 2020. The Company completed its initial public offering in October 2021. Our principal executive offices
are located at 3121 Eagles Nest, Suite 120, Round Rock, TX 78665. Our website address is www.volcon.com. We make our periodic reports
and other information filed with, or furnished to, the SEC available free of charge through our website. The information on or accessible
through our website is not part of and is not incorporated by reference into this prospectus.
SECURITIES WE MAY OFFER
With this prospectus, we may
offer common stock, preferred stock, debt securities, warrants, and/or units consisting of some or all of these securities in any combination.
The aggregate offering price of securities that we offer with this prospectus will not exceed $200,000,000. Each time we offer securities
with this prospectus, we will provide offerees with a prospectus supplement that will contain the specific terms of the securities being
offered. The following is a summary of the securities we may offer with this prospectus.
Common Stock
We may offer shares of our
common stock, par value $0.00001 per share.
Preferred Stock
We may offer shares of our
preferred stock, par value $0.00001 per share, in one or more series. Our board of directors or a committee designated by the board will
determine the dividend, voting, conversion and other rights of the series of shares of preferred stock being offered. Each series of preferred
stock will be more fully described in the particular prospectus supplement that will accompany this prospectus, including redemption provisions,
rights in the event of our liquidation, dissolution or the winding up, voting rights and rights to convert into common stock.
Debt Securities
We may offer general obligations,
which may be secured or unsecured, senior or subordinated and convertible into shares of our common stock or preferred stock. In this
prospectus, we refer to the senior debt securities and the subordinated debt securities together as the “debt securities.”
Our board of directors will determine the terms of each series of debt securities being offered. We will issue the debt securities under
an indenture between us and a trustee. In this document, we have summarized general features of the debt securities from the indenture.
We encourage you to read the indenture, which is an exhibit to the registration statement of which this prospectus is a part.
Warrants
We may offer warrants for
the purchase of debt securities, shares of preferred stock or shares of common stock. We may issue warrants independently or together
with other securities. Our board of directors will determine the terms of the warrants.
Units
We may offer units consisting
of some or all of the securities described above, in any combination, including common stock, preferred stock, warrants and/or debt securities.
The terms of these units will be set forth in a prospectus supplement. The description of the terms of these units in the related prospectus
supplement will not be complete. You should refer to the applicable form of unit and unit agreement for complete information with respect
to these units.
RISK FACTORS
Before making an investment
decision, you should consider the “Risk Factors” included under Item 1A of our most recent Annual Report on Form 10-K and
in our updates to those Risk Factors in our Quarterly Reports on Form 10-Q, all of which are incorporated by reference in this prospectus,
as updated by our future filings with the SEC. The market or trading price of our common stock could decline due to any of these risks.
In addition, please read “Forward-Looking Statements” in this prospectus, where we describe additional uncertainties associated
with our business and the forward-looking statements included or incorporated by reference in this prospectus. Please note that additional
risks not currently known to us or that we currently deem immaterial may also impair our business and operations. The accompanying prospectus
supplement may contain a discussion of additional risks applicable to an investment in us and the particular type of securities we are
offering under that prospectus supplement.
FORWARD-LOOKING STATEMENTS
Some of the information in
this prospectus, and the documents we incorporate by reference, contain forward-looking statements within the meaning of the federal securities
laws. You should not rely on forward-looking statements in this prospectus, and the documents we incorporate by reference. Forward-looking
statements typically are identified by use of terms such as “anticipate,” “believe,” “plan,” “expect,”
“future,” “intend,” “may,” “will,” “should,” “estimate,” “predict,”
“potential,” “continue,” and similar words, although some forward-looking statements are expressed differently.
This prospectus, and the documents we incorporate by reference, may also contain forward-looking statements attributed to third parties
relating to their estimates regarding the markets we may enter in the future. All forward-looking statements address matters that involve
risk and uncertainties, and there are many important risks, uncertainties and other factors that could cause our actual results to differ
materially from the forward-looking statements contained in this prospectus, and the documents we incorporate by reference.
You should also consider carefully
the statements under “Risk Factors” and other sections of this prospectus, and the documents we incorporate by reference,
which address additional facts that could cause our actual results to differ from those set forth in the forward-looking statements. We
caution investors not to place significant reliance on the forward-looking statements contained in this prospectus, and the documents
we incorporate by reference. We undertake no obligation to publicly update or review any forward-looking statements, whether as a result
of new information, future developments or otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act with respect to the securities offered in this offering. We file annual,
quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy
the registration statement and any other documents we have filed at the Securities and Exchange Commission’s Public Reference Room
100 F Street, N.E., Washington, D.C. 20549. Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further information
on the Public Reference Room. Our Securities and Exchange Commission filings are also available to the public at the Securities and Exchange
Commission’s Internet site at www.sec.gov.
This prospectus is part of
the registration statement and does not contain all of the information included in the registration statement. Whenever a reference is
made in this prospectus to any of our contracts or other documents, the reference may not be complete and, for a copy of the contract
or document, you should refer to the exhibits that are a part of the registration statement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information we file with it, which means that we can disclose important information to you
by referring you to those documents. Later information filed with the SEC will update and supersede this information.
The following documents are
incorporated by reference into this document:
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Our Annual Report on Form 10-K
for the fiscal year ended December 31, 2022, filed with the SEC on March 7, 2023 as amended by Form 10-K/A
filed with the SEC on March 14, 2023. |
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Our Current Report on Form 8-K filed with the SEC on February
10, 2023. |
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The description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on October 1, 2021, and any other amendment or report filed for the purpose of updating such description. |
An updated description of
our capital stock is included in this prospectus under “Description of Common Stock” and “Description of Preferred Stock”.
We also incorporate by reference
into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part
and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination
of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
We will provide to each person,
including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no cost to the requester, a copy
of any and all of the information that is incorporated by reference in this prospectus, including exhibits which are specifically incorporated
by reference into such documents. You may request a copy of these filings, at no cost, by contacting us at:
Volcon, Inc.
Attn: Chief Financial Officer
3121 Eagles Nest, Suite 120
Round Rock
TX 78665
Tel: (512) 400-4271
Email: greg@volcon.com.
Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference into this document will be deemed to be modified or superseded
for purposes of the document to the extent that a statement contained in this document or any other subsequently filed document that is
deemed to be incorporated by reference into this document modifies or supersedes the statement.
USE OF PROCEEDS
We will retain broad discretion
over the use of the net proceeds from the sale of the securities offered hereby. Except as described in any prospectus supplement or
any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the
sale of the securities offered hereby for general corporate purposes, including working capital, operating expenses and capital expenditures.
We may also use a portion of the net proceeds to acquire or invest in businesses and products that are complementary to our own, although
we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth
in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any
securities sold pursuant to the prospectus supplement or free writing prospectus. We intend to invest the net proceeds to us from the
sale of securities offered hereby that are not used as described above in short-term, investment-grade, interest-bearing instruments.
DESCRIPTION OF COMMON STOCK
Authorized Capital Stock
Our amended and restated certificate
of incorporation authorizes us to issue 105,000,000 shares of capital stock consisting of 100,000,000 shares of common stock, par value
$0.00001 per share and 5,000,000 shares of preferred stock, par value $0.00001 per share.
As of March 14, 2023,
there were 24,615,119 shares of our common stock issued and outstanding. As of such date, there were no shares of our preferred stock
issued and outstanding.
Shares of our common stock
have the following rights, preferences and privileges:
Voting
Each holder of common stock
is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders. Any action at a meeting
at which a quorum is present will be decided by a majority of the voting power present in person or represented by proxy, except in the
case of any election of directors, which will be decided by a plurality of votes cast. There is no cumulative voting.
Dividends
Holders of our common stock
are entitled to receive dividends when, as and if declared by our board of directors out of funds legally available for payment, subject
to the rights of holders, if any, of any class of stock having preference over the common stock. Any decision to pay dividends on our
common stock will be at the discretion of our board of directors. Our board of directors may or may not determine to declare dividends
in the future. The board’s determination to issue dividends will depend upon our profitability and financial condition, any contractual
restrictions, restrictions imposed by applicable law and the SEC, and other factors that our board of directors deems relevant.
Liquidation Rights
In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the Company, the holders of our common stock will be entitled to share ratably
on the basis of the number of shares held in any of the assets available for distribution after we have paid in full, or provided for
payment of, all of our debts and after the holders of all outstanding series of any class of stock have preference over the common stock,
if any, have received their liquidation preferences in full.
Other
Our issued and outstanding
shares of common stock are fully paid and nonassessable. Holders of shares of our common stock are not entitled to preemptive rights.
Shares of our common stock are not convertible into shares of any other class of capital stock, nor are they subject to any redemption
or sinking fund provisions.
Certificate of Incorporation and Bylaw Provisions
Our amended and restated certificate
of incorporation and bylaws include a number of anti-takeover provisions that may have the effect of encouraging persons considering unsolicited
tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover
attempts. These provisions include:
Advance Notice Requirements.
Our bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election
as directors or new business to be brought before meetings of stockholders. These procedures provide that notice of stockholder proposals
must be timely and given in writing to our corporate Secretary. Generally, to be timely, notice must be received at our principal executive
offices not fewer than 120 calendar days prior to the first anniversary date on which our notice of meeting and related proxy statement
were mailed to stockholders in connection with the previous year’s annual meeting of stockholders. The notice must contain the information
required by the bylaws, including information regarding the proposal and the proponent.
Special Meetings of Stockholders.
Our bylaws provide that special meetings of stockholders may be called at any time by only the Chairman of the Board, the Chief Executive
Officer, the President or the board of directors, or in their absence or disability, by any vice president.
No Written Consent of Stockholders.
Our amended and restated certificate of incorporation and bylaws provide that any action required or permitted to be taken by stockholders
must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing by such
stockholders.
Amendment of Bylaws.
Our stockholders may amend any provisions of our bylaws by obtaining the affirmative vote of the holders of a majority of each class of
issued and outstanding shares of our voting securities, at a meeting called for the purpose of amending and/or restating our bylaws.
Preferred Stock. Our
amended and restated certificate of incorporation authorizes our board of directors to create and issue rights entitling our stockholders
to purchase shares of our stock or other securities. The ability of our board to establish the rights and issue substantial amounts of
preferred stock without the need for stockholder approval may delay or deter a change in control of us. See the section titled “Preferred Stock” below.
Delaware Takeover Statute
We are subject to Section
203 of the DGCL which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any “business combination”
(as defined below) with any interested stockholder for a period of three years following the date that such stockholder became an interested
stockholder, unless: (1) prior to such date, the board of directors of the corporation approved either the business combination or the
transaction that resulted in the stockholder becoming an interested stockholder; (2) on consummation of the transaction that resulted
in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding those shares owned
(x) by persons who are directors and also officers and (y) by employee stock plans in which employee participants do not have the right
to determine confidentially whether shares held subject to this plan will be tendered in a tender or exchange offer; or (3) on or subsequent
to such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66 2⁄3%
of the outstanding voting stock that is not owned by the interested stockholder.
Section 203 of the DGCL defines
generally “business combination” to include: (1) any merger or consolidation involving the corporation and the interested
stockholder; (2) any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested
stockholder; (3) subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock
of the corporation to the interested stockholder; (4) any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or (5) the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation. In general, Section 203 defines an “interested stockholder” as any entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled
by such entity or person.
Quotation
Our common stock is listed
on The NASDAQ Capital Market and traded under the symbol “VLCN”.
Transfer Agent
The
transfer agent for our common stock is Computershare.
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue
up to 5,000,000 shares of preferred stock. Our amended and restated certificate of incorporation authorizes the board to issue these shares
in one or more series, to determine the designations and the powers, preferences and relative, participating, optional or other special
rights and the qualifications, limitations and restrictions thereof, including the dividend rights, conversion or exchange rights, voting
rights (including the number of votes per share), redemption rights and terms, liquidation preferences, sinking fund provisions and the
number of shares constituting the series. Our board of directors could, without stockholder approval, issue preferred stock with voting
and other rights that could adversely affect the voting power and other rights of the holders of common stock which could have the effect
of making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority of our
outstanding voting stock.
DESCRIPTION OF DEBT SECURITIES
General
The following description
sets forth general terms that will apply to the debt securities. We will describe the particular terms of any debt securities that we
offer in the prospectus supplement relating to those debt securities.
The debt securities will be
either our senior debt securities or our subordinated debt securities. The senior debt securities will be issued under an indenture between
us and the trustee named in the indenture. We refer to this indenture as the “senior indenture.” The subordinated debt securities
will be issued under a separate Subordinated Indenture between us and the trustee named in the indenture. We refer to this indenture as
the “subordinated indenture” and, together with the senior indenture, as the “indentures.” Except as permitted
by applicable law, the indentures have been or will be qualified under the Trust Indenture Act of 1939.
We have filed the forms of
the indentures as exhibits to the registration statement. For your convenience, we have included references to specific sections of the
indentures in the descriptions below. Capitalized terms not otherwise defined in this prospectus will have the meanings given in the indenture
to which they relate.
The following summaries of
provisions of the debt securities and the indentures are not complete and are qualified in their entirety by reference to the provisions
of the indentures and the debt securities.
Neither of the indentures
limits the principal amount of debt securities that we may issue. Each indenture provides that debt securities may be issued in one or
more series up to the principal amount that we may authorize from time to time. Each indenture also provides that the debt securities
may be denominated in any currency or currency unit that we designate. In addition, each series of debt securities may be reopened in
order to issue additional debt securities of that series in the future without the consent of the holders of debt securities of that series.
Unless otherwise described in the prospectus supplement relating to a particular offering, neither the indentures nor the debt securities
will contain any provisions to afford holders of any debt securities protection in the event of a takeover, recapitalization or similar
restructuring of our business.
Unless otherwise described
in the prospectus supplement relating to a particular offering, the senior debt securities will rank equally with all of our other unsecured
and unsubordinated debt. The subordinated debt securities will be subordinated to the prior payment in full of our senior debt securities.
We will describe the particular terms of the subordinated debt securities that we offer in the prospectus supplement relating to those
subordinated debt securities.
We will describe the specific
terms relating to each particular series of debt securities in the prospectus supplement relating to the offering of those debt securities.
The terms we will describe in the prospectus supplement will include some or all of the following:
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the title and type of the debt securities; |
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the total principal amount or initial offering price of the debt securities; |
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the date or dates when the principal of the debt securities will be payable; |
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whether we will have the right to extend the stated maturity of the debt securities; |
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whether the debt securities will bear interest and, if so, the rate or rates, or the method for calculating the rate or rates, of interest; |
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if the debt securities will bear interest, the date from which interest will accrue, the dates when interest will be payable and the regular record dates for these interest payment dates; |
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the place where the principal, premium, if any, and interest, if any, on the debt securities will be paid, registered debt securities may be surrendered for registration of transfer, and debt securities may be surrendered for exchange; |
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any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities; |
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the terms and conditions upon which we will have the option or the obligation to redeem the debt securities; |
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the denominations in which any registered debt securities will be issuable; |
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the identity of each security registrar and paying agent, and the designation of the exchange rate agent, if any, if other than the trustee; |
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the portion of the principal amount of debt securities that will be payable upon acceleration of the maturity of the debt securities; |
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the currency used to pay principal, premium, if any, and interest, if any, on the debt securities, if other than U.S. dollars, and whether you or we may elect to have principal, premium and interest paid in a currency other than the currency in which the debt securities are denominated; |
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any index, formula or other method used to determine the amount of principal, premium or interest on the debt securities; |
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any changes or additions to the events of default, defaults or our covenants made in the applicable indenture; |
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whether the debt securities are issuable as registered debt securities or bearer debt securities, whether there are any restrictions relating to the form in which they are issued and whether bearer and registered debt securities may be exchanged for each other; |
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to whom interest will be payable |
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if other than the registered holder (for registered debt securities), |
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if other than upon presentation and surrender of the related coupons (for bearer debt securities), or |
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if other than as specified in the indentures (for global debt securities); |
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whether the debt securities are to be convertible or exchangeable for other securities and, if so, the terms of conversion or exchange; |
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particular terms of subordination with respect to subordinated debt securities; and |
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any other terms of the debt securities consistent with the provisions of the applicable indenture. |
We may issue debt securities
as original issue discount securities to be sold at a substantial discount below their principal amount. If we issue original issue discount
securities, then we will describe the material U.S. federal income tax consequences that apply to those debt securities in the applicable
prospectus supplement.
Registration and Transfer
We presently plan to issue
each series of debt securities only as registered securities. However, we may issue a series of debt securities as bearer securities,
or a combination of both registered securities and bearer securities. If we issue senior debt securities as bearer securities, they will
have interest coupons attached unless we elect to issue them as zero coupon securities. If we issue bearer securities, we may describe
material U.S. federal income tax consequences and other material considerations, procedures and limitations in the applicable prospectus
supplement.
Holders of registered debt
securities may present the debt securities for exchange for different authorized amounts of other debt securities of the same series and
in the same aggregate principal amount at the corporate trust office of the trustee or at the office of any other transfer agent we may
designate for the purpose and describe in the applicable prospectus supplement. The registered securities must be duly endorsed or accompanied
by a written instrument of transfer. The agent will not impose a service charge on you for the transfer or exchange. We may, however,
require that you pay any applicable tax or other governmental charge. If we issue bearer securities, we will describe any procedures for
exchanging those bearer securities for other senior debt securities of the same series in the applicable prospectus supplement. Generally,
we will not allow you to exchange registered securities for bearer securities.
In general, unless otherwise
specified in the applicable prospectus supplement, we will issue registered securities without coupons and in denominations of $1,000
or integral multiples, and bearer securities in denominations of $5,000. We may issue both registered and bearer securities in global
form.
Conversion and Exchange
If any debt securities will
be convertible into or exchangeable for our common stock, preferred stock or other securities, the applicable prospectus supplement will
set forth the terms and conditions of the conversion or exchange, including:
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the conversion price or exchange ratio; |
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the conversion or exchange period; |
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whether the conversion or exchange will be mandatory or at the option of the holder or us; |
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provisions for adjustment of the conversion price or exchange ratio; and |
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provisions that may affect the conversion or exchange if the debt securities are redeemed. |
Redemption
Unless otherwise indicated
in the applicable prospectus supplement, we may, at our option, redeem any series of debt securities in whole at any time or in part from
time to time. If any series of debt securities are redeemable only on or after a certain date or only upon satisfaction of additional
conditions, the applicable prospectus supplement will specify the date or the additional conditions. Unless otherwise specified in the
applicable prospectus supplement, the redemption price for debt securities will equal 100% of the principal amount plus any accrued and
unpaid interest on those debt securities.
The applicable prospectus
supplement will contain the specific terms on which we may redeem a series of debt securities prior to its stated maturity. Unless otherwise
described in the prospectus supplement relating to a particular offering, we will send a notice of redemption to holders at least 30 days
but not more than 60 days prior to the redemption date. The notice will state:
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if less than all of the debt securities of the series are being redeemed, the particular debt securities to be redeemed (and the principal amounts, in the case of a partial redemption); |
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that on the redemption date, the redemption price will become due and payable and any applicable interest will cease to accrue on and after that date; |
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the place or places of payment; |
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whether the redemption is for a sinking fund; and |
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any other provisions required by the terms of the debt securities of the series that are being redeemed. |
On or before any redemption
date, we will deposit an amount of money with the trustee or with a paying agent sufficient to pay the redemption price.
Unless otherwise described
in the prospectus supplement relating to a particular offering, if we are redeeming less than all the debt securities, the trustee will
select the debt securities to be redeemed using a method it considers fair and appropriate. After the redemption date, holders of redeemed
debt securities will have no rights with respect to the debt securities except the right to receive the redemption price and any unpaid
interest to the redemption date.
Events of Default
Unless otherwise described
in the prospectus supplement relating to a particular offering, an “event of default” regarding any series of debt securities
is any one of the following events:
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default for 30 days in the payment of any interest installment when due and payable; |
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default in the making of any sinking fund payment when due; |
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default in the payment of principal or premium (if any) when due at its stated maturity, by declaration, when called for redemption or otherwise; |
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default in the performance of any covenant in the debt securities of that series or in the applicable indenture for 60 days after notice to us by the trustee or by the holders of 25% in principal amount of the outstanding debt securities of that series; |
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certain events of bankruptcy, insolvency and reorganization; and |
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any other event of default provided with respect to that series of debt securities. |
We are required to file every
year with each trustee an officers’ certificate stating whether any default exists and specifying any default that exists.
Acceleration of Maturity
Unless otherwise described
in the prospectus supplement relating to a particular offering, if an event of default has occurred and is continuing with respect to
debt securities of a particular series (except, in the case of subordinated debt securities, defaults relating to bankruptcy events),
the trustee or the holders of not less than 25% in principal amount of outstanding debt securities of that series may declare the principal
amount of outstanding debt securities of that series due and payable immediately.
Unless otherwise described
in the prospectus supplement relating to a particular offering, at any time after a declaration of acceleration of maturity with respect
to debt securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the trustee,
the holders of a majority in principal amount of the outstanding debt securities of that series by written notice to us and the trustee,
may rescind and annul the declaration and its consequences if:
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we have paid or deposited with the trustee a sum sufficient to pay: |
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all overdue interest on all outstanding debt securities of that series and any related coupons, |
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all unpaid principal of and premium, if any, on any of the debt securities which has become due otherwise than by the declaration of acceleration, and interest on the unpaid principal at the rate or rates prescribed in the debt securities, |
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to the extent lawful, interest on overdue interest at the rate or rates prescribed in the debt securities, and |
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all sums paid or advanced by the trustee and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel; and |
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all events of default with respect to debt securities of that series, other than the non-payment of amounts of principal, interest or any premium on the debt securities which have become due solely by the declaration of acceleration, have been cured or waived. |
No rescission will affect
any subsequent default or impair any right consequent thereon.
Waiver of Defaults
Unless otherwise described
in the prospectus supplement relating to a particular offering, the holders of not less than a majority in principal amount of the outstanding
debt securities of any series may, on behalf of the holders of all the debt securities of the series and any related coupons, waive any
past default under the applicable indenture with respect to the series and its consequences, except a default:
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in the payment of the principal of or premium, if any, or interest on any debt security of the series or any related coupon, or |
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in respect of a covenant or provision that cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected thereby. |
If an event of default with
respect to debt securities of a particular series occurs and is continuing, the trustee will not be obligated to exercise any of its rights
or powers under the applicable indenture at the request or direction of any of the holders of debt securities of the series, unless the
holders have offered to the trustee reasonable indemnity and security against the costs, expenses and liabilities that might be incurred
by it in compliance with the request.
The holders of a majority
in principal amount of the outstanding debt securities of any series have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee under the applicable indenture, or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series. The trustee may refuse to follow directions in conflict with law or the indenture
that may expose the trustee to personal liability or may be unduly prejudicial to the other, non-directing holders. Additionally, the
trustee may take any other action the trustee deems proper which is not inconsistent with the direction.
Modification of Indenture
We and the trustee may, without
the consent of any holders of debt securities, enter into supplemental indentures for various purposes, including:
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to evidence the succession of another entity to us and the assumption by the successor of our covenants and obligations under the debt securities and the indenture; |
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establishing the form or terms of any series of debt securities issued under the supplemental indentures; |
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adding to our covenants for the benefit of the holders or to surrender any of our rights or powers under the indenture; |
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adding additional events of default for the benefit of the holders; |
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to change or eliminate any provisions of the indenture provided that the change or elimination becomes effective only when there is no debt security outstanding entitled to the benefit of any changed or eliminated provision; |
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to secure the debt securities; |
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to cure any ambiguities or correct defective or inconsistent provisions of the indenture, provided that holders of debt securities are not materially affected by the change; |
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to evidence and provide for acceptance of a successor trustee; and |
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to comply with the requirements of the Trust Indenture Act. |
We and the trustee may, with
the consent of the holders of not less than a majority in principal amount of the outstanding debt securities of all affected series acting
as one class, execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the indenture
or modifying the rights of the holders of the debt securities of the series. Without the consent of the holders of all the outstanding
debt securities affected thereby, no supplemental indenture may:
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change the stated maturity of the principal of, or any installment of principal of or interest on, any debt security; |
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reduce the principal amount of, the rate of interest on or any premium payable upon the redemption of, or change the manner of calculating the rate of interest on, any debt security; |
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reduce the amount of the principal of any original issue discount security that would be due and payable upon acceleration of the maturity of the debt security; |
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change the place of payment where, or the currency in which, principal or interest on any debt security is payable; |
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impair the right to institute suit for enforcement of payments; |
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reduce the percentage in principal amount of the outstanding debt securities of any series, the holders of which must consent to a supplemental indenture or any waiver of compliance with various provisions of, or defaults and covenants under, the indenture; or |
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modify any of the provisions described in this section. |
Consolidation, Merger and Sale of Assets
Unless otherwise described
in the prospectus supplement relating to a particular offering, as provided in the indentures, we may not consolidate with or merge into
any other person, or convey, transfer or lease all or substantially all of our assets to any other person, unless:
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the person surviving or formed by the transaction is organized and validly existing under the laws of any United States jurisdiction and expressly assumes our obligations under the debt securities and the indentures; |
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immediately after giving effect to the transaction, no event of default will have occurred and be continuing under the indentures; and |
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the trustees under the indentures receive certain officers’ certificates and opinions of counsel. |
Satisfaction and Discharge
We may terminate our obligations
with respect to debt securities of any series not previously delivered to the trustee for cancellation when those debt securities:
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have become due and payable; |
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will become due and payable at their stated maturity within one year; or |
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are to be called for redemption within one year under arrangements satisfactory to the indenture trustee for giving notice of redemption. |
We may terminate our obligations
with respect to the debt securities of a series by depositing with the trustee, as trust funds in trust dedicated solely for that purpose,
an amount sufficient to pay and discharge the entire indebtedness on the debt securities of that series. In that case, the applicable
indenture will cease to be of further effect, and our obligations will be satisfied and discharged with respect to that series (except
our obligations to pay all other amounts due under the indenture and to provide certain officers’ certificates and opinions of counsel
to the trustee). At our expense, the trustee will execute proper instruments acknowledging the satisfaction and discharge.
The Trustees
Any trustee may be deemed
to have a conflicting interest for purposes of the Trust Indenture Act and may be required to resign as trustee if there is an event of
default under the applicable indenture and, as more fully described in Section 310(b) of the Trust Indenture Act, one or more of
the following occurs:
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the trustee is a trustee under another indenture under which our securities are outstanding; |
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the trustee is a trustee for more than one outstanding series of debt securities under a single indenture; |
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we or our affiliates or underwriters hold certain threshold ownership beneficial ownership interest in the trustee; |
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the trustee holds certain threshold beneficial ownership interests in us or in securities of ours that are in default; |
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the trustee is one of our creditors; or |
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the trustee or one of its affiliates acts as an underwriter or agent for us. |
We may appoint an alternative
trustee for any series of debt securities. The appointment of an alternative trustee would be described in the applicable prospectus supplement.
We and our affiliates may
engage in transactions with the trustee and its affiliates in the ordinary course of business.
Governing Law
Unless otherwise described
in the prospectus supplement relating to a particular offering, each of the indentures are, and the related senior debt securities and
subordinated debt securities will be, governed by and construed under the internal laws of the State of New York.
DESCRIPTION OF THE WARRANTS
We may issue warrants to purchase
debt securities, preferred stock or common stock. We may offer warrants separately or together with one or more additional warrants, debt
securities, shares of preferred stock or common stock, or any combination of those securities in the form of units, as described in the
applicable prospectus supplement. If we issue warrants as part of a unit, the prospectus supplement will specify whether those warrants
may be separated from the other securities in the unit prior to the warrants’ expiration date. We may issue the warrants under warrant
agreements to be entered into between us and a bank or trust company, as warrant agent, all as described in the prospectus supplement.
If we issue the warrants under warrant agreements, the warrant agent will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
We will describe the particular
terms of any warrants that we offer in the prospectus supplement relating to those warrants. Those terms may include the following:
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the specific designation and aggregate number of warrants, and the price at which we will issue the warrants; |
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the currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the date on which the right to exercise the warrants will begin and the date on which the right will expire or, if the warrants are not continuously exercisable throughout that period, the specific date or dates on which they are exercisable; |
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms; |
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any applicable material United States federal income tax considerations; |
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the identity of the warrant agent, if any, for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
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the designation, aggregate principal amount, currency, denomination and terms of any debt securities that may be purchased upon exercise of the warrants; |
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the designation, amount, currency, denominations and terms of any preferred stock or common stock purchasable upon exercise of the warrants; |
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if applicable, the designation and terms of the debt securities, preferred stock or common stock with which the warrants are issued and the number of warrants issued with each security; |
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if applicable, the date from and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable; |
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the principal amount of debt securities or the number of shares of preferred stock or common stock purchasable upon exercise of any warrant and the price at which those shares may be purchased; |
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provisions for changes to or adjustments in the exercise price; |
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if applicable, the minimum or maximum number of warrants that may be exercised at any one time; |
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information with respect to any book-entry procedures; |
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any anti-dilution provision of the warrants; |
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any redemption or call provisions; and |
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Each warrant will entitle
the holder thereof to purchase such number of shares of common stock or preferred stock or other securities at the exercise price as will
in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement. Warrants may be exercised at any
time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void. Warrants may be exercised as set forth in the applicable prospectus supplement
relating to the warrants offered thereby. Upon receipt of payment and the warrant certificate properly completed and duly executed at
the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon
as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate are exercised,
a new warrant certificate will be issued for the remaining warrants.
DESCRIPTION OF UNITS
We may issue, in one or more
series, units comprised of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities
or any combination of those securities. Each unit will be issued so that the holder of the unit is also the holder of each security included
in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security.
We may evidence units by unit
certificates that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents.
If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the units
and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial owners
of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus supplement
relating to a particular series of units if we elect to use a unit agent.
We will describe in the applicable
prospectus supplement the terms of the series of units being offered, including: (i) the designation and terms of the units and of the
securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
(ii) any provisions of the governing unit agreement that differ from those described herein; and (iii) any provisions for the issuance,
payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The other provisions regarding
our common stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such
unit consists of shares of our common stock, preferred stock, warrants and/or debt securities.
PLAN OF DISTRIBUTION
We may sell the securities
covered by this prospectus in one or more of the following ways from time to time:
| · | to or through underwriters or dealers for resale to the purchasers; |
| · | through agents or dealers to the purchasers; or |
| · | through a combination of any of these methods of sale. |
In addition, we may enter
into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell securities covered by
this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives. If so, the
third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in the prospectus supplement
(or a post-effective amendment thereto).
A prospectus supplement with
respect to each series of securities will include, to the extent applicable:
| · | the terms of the offering; |
| · | the name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement
with those parties, including the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased,
or remarketed by, each of them, if any; |
| · | the public offering price or purchase price of the securities and an estimate of the net proceeds to be
received by us from any such sale, as applicable; |
| · | any underwriting discounts or agency fees and other items constituting underwriters’ or agents’
compensation; |
| · | the anticipated delivery date of the securities, including any delayed delivery arrangements, and any
commissions we may pay for solicitation of any such delayed delivery contracts; |
| · | that the securities are being solicited and offered directly to institutional investors or others; |
| · | any discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and |
| · | any securities exchange on which the securities may be listed. |
Any offer and sale of the
securities described in this prospectus by us, any underwriters, or other third parties described above may be effected from time to time
in one or more transactions, including, without limitation, privately negotiated transactions, either:
| · | at a fixed public offering price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to prevailing market prices at the time of sale; or |
Offerings of securities covered
by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price,
either:
| · | on or through the facilities of the NASDAQ Capital Market or any other securities exchange or quotation
or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or |
| · | to or through a market maker otherwise than on the NASDAQ Capital Market or those other securities exchanges
or quotation or trading services. |
Those at-the-market offerings,
if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described
above.
In addition, we may sell some
or all of the securities covered by this prospectus through:
| · | purchases by a dealer, as principal, who may then resell those securities to the public for its account
at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the time of sale; |
| · | block trades in which a dealer will attempt to sell as agent, but may position or resell a portion of
the block as principal in order to facilitate the transaction; and/or |
| · | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. |
Any dealer may be deemed to
be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold.
In connection with offerings
made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant to which we receive our outstanding
securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters
or agents also may sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in
short sale transactions. If so, the underwriters or agents may use the securities received from us under those arrangements to close out
any related open borrowings of securities.
We may loan or pledge securities
to a financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of
a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement. That financial institution or third
party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities
covered by this prospectus.
We may solicit offers to purchase
the securities covered by this prospectus directly from, and we may make sales of such securities directly to, institutional investors
or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of such securities.
The securities may also be
offered and sold, if so indicated in a 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 agents for us.
If indicated in the applicable
prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting
on a “best efforts” basis for the period of its appointment.
If underwriters are used in
any sale of any securities, the securities may be either offered to the public through underwriting syndicates represented by managing
underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to
purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated to purchase all of
that series of securities, if any are purchased.
Underwriters, dealers, agents,
and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification
by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that
the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and remarketing agents
may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or our affiliates.
Any underwriters to whom securities
covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but those underwriters
will not be obligated to do so and may discontinue any market making at any time without notice.
LEGAL MATTERS
ArentFox Schiff LLP, Washington,
DC, will pass upon the validity of the securities offered by this prospectus for us. Legal matters will be passed upon for any underwriters,
dealers or agents by counsel named in the applicable prospectus supplement.
EXPERTS
The financial statements as
of December 31, 2022 and 2021 and for the years ended December 31, 2022 and 2021 incorporated in this prospectus have been audited by
MaloneBailey LLP, an independent registered public accounting firm, given on the authority of such firm as experts in auditing and accounting.
1,400,000 Shares
PROSPECTUS
Sole Book-Running Manager
Aegis Capital
Corp.
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